*1 A.2d 306 JERSEY, AND PLAINTIFF-RESPONDENT STATE OF NEW CROSS-APPELLANT, COOPER, DEFENDANT- v. DAVID APPELLANT AND CROSS-RESPONDENT. August
Argued December 199 6Decided 1997. *13 Linda, Kirsch, Deputy Stephen Mehling, and Assistant Pub- W. Defenders, argued appellant cross-respondent lic the cause for and (Susan Reisner, Defender, attorney). L. Public Foddai, General, Deputy Attorney argued A
Catherine (Peter Vemiero, respondent cross-appellant cause for and Attor- ney Jersey, attorney). General of New by opinion
The of the Court was delivered COLEMAN, J. defendant, County jury May
In a Monmouth convicted assault, Cooper, kidnapping, aggravated felony David sexual L.G., murder, six-year-old purposeful-or-knowing murder of girl, by his him to death. own conduct. same sentenced appeal This from his conviction for is defendant’s direct 2:2-1(a)(3). R. affirm murder and sentence of death. We both the conviction and the sentence of death.
I History Procedural and Factual County Jury
A defendant on the Monmouth Grand indicted charges: purposeful-or-knowing con following his own (2) (count 2C:11-3a(1) one); duct, felony contrary to or N.J.S.A. 2C:11-3a(3) (count murder, two); first-degree contrary to N.J.S.A. (count three); contrary kidnapping, to N.J.S.A. 2C:13-1b two assault, contrary first-degree aggravated counts of sexual 2C:14-2a(3) (counts 2C:14-2a(1) alleg four and five N.J.S.A. sodomy). ing rape and kidnapped theory at trial was that defendant
The State’s raped porch and took underneath a where he her and victim her strangled escape apprehension. An then her to detection theory murdered the victim the alternative was that defendant kidnapping. aggravated course of an sexual assault or *14 trial, guilt felony mur- At the defense conceded defendant’s der, aggravated assault. defense and sexual The kidnapping, contested, however, purposeful knowing. that the murder was Instead, killing had occurred acci- contended that the defendant Thus, dentally aggravated of an sexual assault. during the course strangle but there had been no intent to the child he claimed that by unintentionally placing rather had been caused death artery thirty pressure seconds. on her carotid for about
-A- Guitt Phase victim, L.G., mother, R.G., six-year-old July 18,1993, her
On at the home of sister-in- and victim’s two sisters were R.G.’s law, M.W., Asbury supermarket, in Park. was at While M.W. youngest porch sat front the house with her R.G. on the daughter. victim and her other sister were with M.W.’s The daughter frontyard. playing frontyard in playing in the After time, backyard. a fenced-in for some the children moved into they backyard, playing defendant lured the While were eventually picked away up, victim from the other children and her fence, away lifted her with her. The other over walked frontyard children to the and told R.G. what had occurred. went R.G., M.W., joined by just supermar- who had returned from the ket, L.G., began they for and to out to but to search call could after, neighbors joined in locate her. the search. Soon shortly Asbury Department The Park Police was contacted disappearance, police joined officers after L.G.’s also had disappeared, search. a few hours the victim her Within after body porch was found under a of an abandoned house. Defendant porch. lying L.G. a lived under that was found her back on ankles, pulled up, panties pair mattress at her a with her shirt her face, vaginal exposed of men’s over her and her boxer shorts area and bloodstained. police clothing paper
The found and a bloodstained towel at body. bag length police gym arms’s from L.G.’s also found a Inside the wallet was defendant’s social- that contained wallet. security fingerprints found on a card. Defendant’s latent were bag malt-liquor porch area. Several paper and on a bottle letters, in defendant’s name photographs, and other documents were also found the area. abduction, night, police
That interviewed witnesses to the immediately. suspect almost Defendant and defendant became headquarters day police taken to was located the next custody questioning. was in The State concedes defendant rights, signed and he a form that time. He was read his Miranda time, waiving rights to remain silent and to counsel. At that his any in the child’s death. defendant denied involvement *15 thereafter, confronted defendant Soon Detective John Musiello police against him and told him that with the evidence that the had they evidence from his would seek a court order obtain forensic officer, however, informed person. No law-enforcement defendant Instead, facing they told potential that he was death sentence. facing imprisonment perpetrator him that the was a term of life thirty years parole ineligibility. with According causing death. Defendant then confessed L.G.’s varying police testimony, dropped his head and stated slightly he (2) (1) drunk;” I I “It’s either: “It was an accident. did it. was strangled I I her.” Defendant ex- an accident. was drunk. playing house on his plained that he had seen children at M.W.’s way that he had told porch to the of the abandoned house and the fence and led her L.G. to come to him. He lifted her over porch of abandoned house. Defendant then underneath the stated, sex, strangled I her” and that he had “Then we had and body porch. questioning, farther left her underneath the After ejaculated that he had worn a admitted that he had defendant nearby in a field. condom which he later had discarded statement, in subsequently signed a formal Defendant written vaginal penetration of as which he described the sexual L.G. during penetration, vagina her stated that she had bled from told the clothes. He also get on defendant’s causing blood to the'penetration and during top on of L.G. that he had been police her neck. had been on that his hands the skin of body dried blood on autopsy revealed An of L.G.’s genitalia. Numerous internal external abdomen and her lower hymen Her vaginal canal and cervix. injuries found in her were injury. signs of The canal also showed not intact. Her anal lungs, petechial trachea and swelling L.G.’s autopsy revealed swelling in thymus, and hemorrhages on the outer surface her brain. injuries and around that the examiner concluded
The medical swelling in her brain neck, lungs, and the the edema her L.G.’s strangulation. asphyxia caused manual were consistent applied for probably had been pressure He also concluded because, to form minutes for edema approximately four to six applied for three have had to have been lungs, pressure would minutes, damage to occur from brain and for irreversible to six applied for have had to have been oxygen, pressure would lack to minutes. four six field, close condoms from a seven discarded police obtained them, house, had led to which defendant
to the abandoned saliva, hair, and blood. samples of his from defendant obtained semen, although positive one had tested None of the condoms under paper towel discovered it. Blood was found on the blood on found, on two L.G. had been porch, on the cushion on which jeans, porch, and on defendant’s pairs of sneakers found under *16 t-shirt, clothes was found L.G.’s and boxer shorts. No semen on L.G. were consistent with person. pubic Four hairs found or hair, to him although they could not be linked pubic defendant’s conclusively.
-B- Penalty Phase jury. The before the same penalty phase was conducted
The (1) murder was aggravating factors: that the on three State relied vile, horrible, outrageously wantonly or inhuman in that mind, 2C:11-3c(4)(c); (2) depravity of involved N.J.S.A. that the during aggravated murder occurred of an commission sexual (3) kidnapping, 2C:11-3c(4)(g); assault or N.J.S.A. that and purpose escape of murder was to apprehension, detection or 2C:11-3c(4)(f). mitigating N.J.S.A. Defendant’s was lim evidence up defense, ited life age to his to the The seventeen. under the factor, mitigating 2C:11-3c(5)(h), “catch-all” N.J.S.A. submitted eighteen mitigating to circumstances related defendant’s life. presented an
The defense mitigating enormous amount of evi- tragic childhood, dence replete about defendant’s which was with abuse, placements, neglect, numerous foster care exposure violence, drugs, experts and alcohol. Several that testified stability life, violence, lack exposure in defendant’s his his lack of relationship his mother had him in affected ways, making such aggressive numerous as him and unable to others, empathize with by reducing ability as well as his understand cause and presented expert effect. The defense also that, testimony as a upbringing, result defendant’s he was extremely emotionally developed disturbed he and that had not normally. during strategy penalty phase emphasize
The State’s was to aspects good prosecutor defendant’s childhood. The thus testimony positive elicited from defendant’s relatives about the aspects his relationships, familial and foster-care which the prosecutor argued in summation. expert
The State rebutted mitigating defendant’s evidence presenting testimony that personality defendant’s disorder was expert not treatable. The State’s also testified defendant’s prevent would knowing childhood not him from the difference right wrong between and would make him unable to control his actions. jury unanimously found proven the State had detection, escape
defendant had committed the murder to N.J.S.A. 2C:11-3c(4)(f), and that had he done so in course of commit *17 kidnapping, N.J.S.A. 2C:11- aggravated
ting sexual assault and however, 3c(4)(g). jury, unanimously found that the State The c(4)(c) factor, aggravating prove had failed to existence namely, depravity, N.J.S.A. 2C:11- that the had involved 3c(4)(c). following jurors mitigating or all of the found the Some (1) nurturing had as an infant factors: that defendant been denied (6 (2) jurors); drug he alcohol- that had been born to and (12 (3) jurors); drinking by dependent parents that his mother during physical had and pregnancy contributed defendant’s (2 (4) jurors); developmental that his father had disabilities infant, family abused members of when defendant an (8 thereby jurors); exposing him and abusive behavior violent (5) him throughout that mother had relatives his abandoned with (3 (6) youth neglected jurors); his that his mother had and abused (10 dependence and upbringing him because of her own alcohol (7) childhood, jurors); throughout exposed had that his he been (10 excessive amounts of domestic violence and substance abuse (8) through placements and jurors); multiple that he had suffered (10 (9) jurors); periodically had attended 11 different schools that throughout had childhood he been denied consistent treatment (3 problems despite psychological and identification emotional (10) jurors); significantly background that his had increased his (8 engaging risk of substance abuse and antisocial behavior (11) drugs jurors); that he had allowed alcohol been to abuse (6 (12) jurors); begun acting early age at an he had out during his childhood of unresolved and untreated emotion because (6 (13) childhood, jurors); during al disturbances his he had (6 (14) jurors); exposed periodically been to an unstable father deprived nurturing throughout that he a stable home had been (5 (15) jurors); provided his that he had not been childhood (4 (16) therapy jurors); necessary that the recommended grief sudden of his had left him with unresolved death mother (6 through jurors). therapy issues that were addressed (1) rejected unanimously following two factors: exposure during to proper defendant had been denied role models *18 (2) childhood; “any his the other reasons not mentioned” factor.
However, jury unanimously aggravating the found that the two together outweighed mitigating beyond factors the factors a rea- accordingly sonable doubt. Defendant was sentenced to death. discharged, After parties was the discovered that a graphic photo genitalia accidentally of wounds on the victim’s had jury during penalty phase. been submitted to the The trial subsequently court denied defendant’s motion for a non-death or, alternative, trial, penalty-phase verdict concluding new photo prejudiced the accidental submission of the had not defendant because it during had been admitted into evidence guilt phase. day,
That same the trial court sentenced defendant on the noncapital merged felony-murder counts. The court convic- tion purposeful-or-knowing-murder into the conviction and sen- thirty years tenced defendant to life. The two counts of aggravated merged sexual assault were with each other. The court kidnapping then sentenced defendant on the conviction to fifty years imprisonment twenty-five-year with a parole-ineligi- bility aggravated-sexual-assault bar and on the conviction to a twenty-year ten-year consecutive parole term with a bar.
II Jury Selection
Defendant impartial jury asserts that he was denied an because juror intent, trial, alleged during Maria Hollenback’s formed employment County seek at the Monmouth Prosecutor’s Office. prejudiced by Defendant also contends that he her omission during voir dire of fact that her cousin was an inmate in a reasons, prison. federal For those defendant maintains that he is Following evidentiary hearing, entitled to a new trial. an the trial employment court found that Hollenbaek had not intended to seek at the Prosecutor’s Office until after trial and that her court also
obtaining “happenstance.” The employment there was as her cousin’s status an her failure reveal concluded that prejudicial. nor inmate had been neither deliberate -A- Employment Prosecutor’s Office that, given incredibly span time short Defendant contends application numer- between the verdict Hollenback’s hearing, alleged perjury evidentiary at the instances of her ous concluding clearly that she court abused its discretion had trial trial, *19 employment at contemplated, during seeking never in that she had no ulterior motive convict- Prosecutor’s Office and ing sentencing and defendant. reject trial court
We defendant’s contention findings making in that undermine his claim. The erred factual findings is scope appellate of our review of those limited to a they supported by of whether are credible evidence determination 162, Johnson, 146, 42 A.2d in the record. State v. N.J. 199 809 (1964). testimony heard The trial court saw wit nesses, thereby placing position it in much than this a better judge credibility. recognized to The court the inconsis Court trial her testimony, but nevertheless found to tencies Hollenback’s inability Implicit finding candid. in that was the of the defense be contemplated any employ she to offer direct evidence that had pendency of trial. during ment reject would We defendant’s assertion Hollenback ingratiate herself the Prosecutor’s have had an incentive to by convicting returning a sentence. Absent Office death evidence, possibility pure speculation supporting as disregarded personal gain. that Hollenback her oath for sumes her has rebut presumption that she followed oath not been (1964). LaFera, 97, 110, 42 199 630 See State v. N.J. A.2d ted.
349 -B- During Omission Voir Dire
Defendant also seeks reversal of his conviction based on
omission,
dire,
during
Hollenback’s
voir
that she had a
cousin
prison.
juror incorrectly
federal
during
When a
omits information
dire,
presumed
voir
the omission is
prejudicial
to have been
if it
Kozlov,
282,
potential
prejudicial.
239,
had the
to be
In re
79 N.J.
(1979);
Bernstein,
Wright
284, 293-96,129
[79 at 239, 882.] N.J. 398 A.2d however, In application, its that rule is not as all-encom passing appears it glance. Although as at first the rule does not require litigant prejudice by showing demonstrate that an improperly empaneled juror did fairly, Wright, not decide the case require 129 A.2d litigant does that, information, demonstrate had he or she known of the omitted he or she peremptory challenge would have exercised a to exclude *20 juror. Id. at 129 A.2d19. That is so because juror [o]nce the ... the law sworn, that in a case is presumes every legal challenged
indifferent and above
or otherwise he would have been
exception,
for cause. This
a
on a
to show that
were or
presumption puts
duty
party
they
would have been
with the
as
and that
finally impaneled,
they
dissatisfied
right
challenges given
would have exercised the
additional
them
peremptory
statute
were aware
the true situation.
they
if
added).]
(emphasis
[Ibid,
Wright,
In
supra,
the Court concluded that
it had “no
prospective juror
doubt
inquiry truthfully,
had the
answered the
peremptorily challenged,”
causing
he would have been
thus
it to
23 N.J. at
In the challenge to had peremptory excuse Hollenback have exercised imprisonment. during cousin’s Her answers she disclosed her voir dire indicated that receptive psychiatric she could testimony For mitigating and to evidence about defendant. exam- ple, impression her her point, at one defense counsel asked about upbringing on his or her future behavior: of the effects of a child’s interesting has ... that —an observation. You also mentioned Everybody Q: wrong get a [sic] some better chance at to do thinks but people, they potential wrong doing thing or better to— opportunities A: Yes. Could you
Q: explain— A observation —in observation— My my Yeah. want. Sure that’s what we
Q: bring we whose them what is denomina- Children, A: example, parents up, say bring knowing right wrong. In tional them from Lord, we up my tend observation, observation, children, included, to, limited those myself you know, behavior, have a narrow know. you perimeter right wrong? saying? more ... aware of is that what it, Of You’re you’re Q: guess more. know it is. I know there A: I if are I don’t are polished why you things brought that in observation children are within those that, my up just altogether, yeah. better behaved [t]hey’re perimeters ... as think could consider Now, I do you you possibly Q: explained process, background when he of Mr. he was when was child, Cooper perhaps being weighing first in the raised, could consider you process he live determine whether should or die? A: Sure. You that more me. that with Can say quite certainty. you explain
Q: Yes. A: do it so certain? Why say
Q: you *21 brought A: I Because as said to I think how you before, a child is is relevant as up he behaves as an adult or even as a child, sure. dire, Thus, during voir any Hollenback did appear not to be in way juror. a “bad” defense question then becomes whether the additional information changed
would have acceptance defense counsel’s of Hollenback. First, it We are satisfied that would not. she testified at the hearing cousin, remand that she having was not close to her spoken Second, neither seen him nor to him since for 1950. as her toward sent prison, attitude those she stated she occasion- ally sent Christmas cards to her cousin. juror
This information not did make Hollenback less desirable Perhaps from a perspective. defense is for reason that hypothetical way defendant does not elaborate even the most on prejudice that he suffered vis-a-vis the omission and does not even jury, assert that he would have struck Hollenback from the simply stating “deprived the omission ... of informa- [him] necessary tion intelligent peremptory to make use of chal- his That, however, lenges.” simply is not the test under our law. We conclude surrounding employ- that the events Hollenback’s County ment Monmouth Office not Prosecutor’s do We also conclude that her voir dire constitute error. reversible omission harmless.
III Alleged Qualification Death Juror The essence of argument defendant’s is that the trial court prosecutor’s erred granting juror motion to dismiss Fred relatively Rummel for cause because his uncommitted on views capital punishment. capital juror may Defendant stresses that a simply be removed for cause because the State does not like that, penalty his on the views death in order to be removed cause, juror’s qualms capital punishment about must Gray v. prevent following him from relies law. Defendant *22 2045, 2054-55, 648, 664-65, 107 Mississippi 481 S.Ct. 95 U.S. 622, (1987), in and asserts an erroneous exclusion L.Ed.2d 637 context can never be harmless. this juror may only excused for cause based on capital
A if such would penalty on the death views his or her views during ability to substantially impair his or her follow law Texas, 45, 2521, 2526, 38, v. 100 S.Ct. 65 trial. Adams U.S. 448 210, 176, 131 N.J. (1980); State v. 581, 619 589 L.Ed.2d Martini — denied, (1993) (Martini I), U.S. -, 116 S.Ct. cert. A.2d 1208 Ramseur, 123, (1995); v. 106 133 L.Ed.2d State 255- (1987). that, Here, clearly Rummel stated 524 A.2d rehabilitation, possibility to he although sympathetic he was impose it. was thus penalty in the death and could He believed not death-excludable. however, record, that Rummel was not
A review of reveals punishment. prosecu- capital on excused because his views cause motion to excuse Rummel for on numerous tor based her gave, including ambiguous his on the responses that he views responses, and his failure to dis- penalty, death his inconsistent political argued that he was death- close his activities. She never assertion, Moreover, contrary defendant’s the trial excludable. “adopt[ regarding reasoning” did the State’s the death ] court not Indeed, the mentioned Rummel’s penalty. court never even views prosecutor’s penalty granting the death in motion. In- stead, testimony irregularities other in his stressed the juror questionnaire. answers on the
Apart death-qualification, from the lack of evidence of defendant plausibly prejudiced by he cannot claim that was Rummel’s dis- First, punish- expressed qualms no missal. Rummel about it, Second, he although he later disavowed stated his ment. mitigating he abuse questionnaire that could consider child as evidence, penalty-phase core of defense. which defendant’s that, Third, circum- questionnaire given he stated on his brutal ease, judge not be the case stances he would able although impartially, he later abandoned that view court. Fourth, juror he had prior served as a in a murder case in which guilty had returned a Finally, verdict. he that he stated sum, police many knew a In officer involved the ease. defense attorneys would have characterized Rummel as anti-defense and liability would have him considered to be a he to were be selected Hence, jury. serve on we find defendant’s claim to be without merit.
IV Admission Statements of Defendant’s *23 Defendant that his Asbury contends confession statement to the Department involuntary Police was by because it was induced a police misrepresentation officer’s only material that he would face term, prison a possible sentence, a rather than death for the murder. Defendant maintains that the admission the statement rights at trial violated his Fifth under the and Fourteenth Amend- Constitution, the I, ments to Federal paragraph and Article Jersey the New Constitution. night arrest,
On the his provided police defendant statements, oral written in and which he incrimi- made numerous nating regarding remarks the kidnapping, rape, and murder of statements, suppress L.G. moved arguing they He to that had involuntarily been hearing obtained. The court a trial held 8, 1994, July during Williams, which Officer Valerie Detective Musiello, John August 4, and defendant testified. On voluntarily statements, court held that defendant had made they and that were admissible.
At during hearing, among things, issue other was Detective defendant, any Musiello’s statement to after defendant had denied killing in immediately involvement and L.G. before defendant confessed. Detective Musiello stated that charged facing that did this would be with murder and would be life person with a minimum of I told him the imprisonment thirty years parole. person again, did had had this, we witnesses and we forensic evidence would and, we be
looking get review orders and have the witnesses photo- Court to exemplars graphs in or persons person. had defendant that he not informed Detective Musiello admitted potential punishment a for the murder. penalty the death was Defendant testified that diagram line ... on one side of a [w]ith Fazio ... drew a seven Detective crime, side line. And he told me if I confess to the he on the other fifty manslaughter charge get I is a which would be seven
would that all would say get I would or more He if I do not work with he would them, fifty said say years. being meaning him and were nice we, detectives, you, He the other years. says, fucking going us we’re to send the other detectives here, but around you keep going to nice as have been to not be as we you. they’re that, get believing that he would Defendant stated addition confessed, charge if he he believed that officers would reduced having if hit him he did not confess. Detective Musiello denied anything charge. a reduced said about motion, denying suppression trial court
In defendant’s had told that he was found that Detective Musiello defendant However, facing years parole. the court thirty prison without threatening, instead the court did not find statement also characterized it as “kind of factual.” court found sentence; they promised a reduced detectives had defendant court simply him “what the facts were.” The had informed voluntary the statement was and that defendant concluded that strong enough not to intelligent be intimidated officers. *24 factual-legal a
Defendant’s claim raises mixed issue: thirty years statement about of whether Detective Musiello’s being defen imprisonment punishment for murder rendered unknowing. involuntary or has dant’s waiver Defendant not any grounds suppression despite for appeal raised other his testimony hearing physical that he had feared suppression at the during interrogation. abuse only if there
A custodial confession is admissible has knowing, intelligent, voluntary a waiver of Miranda been Arizona, 444, 1602, 436, v. 86 S.Ct. rights. Miranda 384 US.
355
(1966).
1612,
694,
voluntariness,
16 L.Ed.2d
707
To determine
totality
courts examine
the circumstances. State v. Gallo
654,
(1993).
631,
way,
Although misrepre
133
ment about sentences. Detective Musiello also informed *25 being taken to investigatory steps that were the about defendant whole, the statement that as a murder. Considered tie him to the “mere” life promise confess was not defendant to induced the convey to defendant attempt an but rather imprisonment, offense, that he of the sentence the seriousness of the seriousness police officers were strong case that facing, and the was police by the Although the statements building against him. were, trial court they as the puffery, some might have included them, “factual.” described circumstances, during atmosphere totality
Given not coercive. The interrogation and confession was defendant’s given after that defendant’s confession trial court found rights. Miranda That voluntary waiver of his knowing and Johnson, supra, 42 N.J. at by the record. supported conclusion finding. thus affirm that 199 A.2d809. We V Instruction, Phase Jury Guilt on his assertions that raised several claims based
Defendant has legal to make the aware of the failed instructions jury should have been findings. maintains that the of its He effect charge,” sole issue where the under a “unified-murder instructed during mind be defendant’s state of before the would sequential presentation complains He also murder. jury to opportunity him of an for the charge deprived Finally, felony murder. he contends noncapital him of convict charge give an ultimate-outcome error not to it was reversible felony regarding the sentence for murder. during guilt phase -A- Charge Unified-Murder court requested that the trial
During guilt phase, defendant guilty general crime find him charge the that it could type of murder he being unanimous about of murder without *26 committed, namely, felony had purposeful-or-knowing murder or felony death-eligible, murder. Because is not murder verdict split purposeful-or-knowing felony between and murder murder non-death-eligible would be murder conviction. Brown, State v. argued that in holding
Defendant this Court’s 481, 509-14, (1994) N.J. 138 651 (requiring A.2d 19 on instruction possibility nonunanimity of principal-liability in determination of accomplice-liability murder), compelled murder versus a similar nonunanimity on felony instruction in the of context murder purposeful-or-knowing versus murder. Defendant also relied Mejia, 475, 486-87, (1995) State v. 141 (requir A.2d ing possibility nonunanimity instruction on of of in determination bodily intent to kill intent injury). versus to cause serious request, concluding concept trial court denied the defense that the of Jersey. one unified not crime murder was the law New jury’s The court thus severed the of purposeful-or- consideration knowing murder its felony from consideration of murder. that, given
Defendant contends
the structure of
murder
statute,
Jersey,
there is one crime of
opposed
murder New
as
to
capital
noncapital
distinct crimes of
argues
and
He
that
murder.
statute,
2C:11-3,
N.J.S.A.
Jersey’s
under New
murder
men
three
(1)
(to
give
tal
purpose
states
rise murder:
kill or to cause
(2)
(that
bodily
2C:11-3a(1);
N.J.S.A.
injury),
serious
knowledge
bodily
occur),
occur
injury
death will
or that serious
N.J.S.A.
will
(3)
2C:11-3a(2);
necessary
and
state
predicate
mental
for a
murder,
2C:11-3a(3).
felony
felony
N.J.S.A.
argues
He
that
that,
Jersey,
that structure indicates
New
there is one crime
conviction;
support
murder
various theories to
a murder
purpose
some of those
knowledge
to cause death or
that
theories —
trigger
2C:11-3(c),
will
N.J.S.A.
death-eligibility,
death
occur —
purpose
injury
while the other
bodily
cause serious
theories —
(prior
I,
to the 1992 amendment
paragraph
to Article
12 of the
Constitution),
Jersey
knowledge
injury
New
bodily
that serious
(prior
amendment),
felony
will occur
to the 1992
murder —do
that,
not. Defendant
despite
asserts
the fact that different theo
may
trigger death-eligibility, the fact remains
may
ries
or
thing as
crimes
murder
no
distinct
there is one crime of
such
noncapital
murder.
entirely
by arguing
felony
is
responds
The State
murder
it
types
from
of murder because
has different
distinct
other
purposeful-or-knowing murder and is a lesser
elements than
crime,
non-death-eligible
its
status. The crux
as evidenced
felony
murder is not the moral
argument
the State’s
(be
equivalent
purposeful-or-knowing
intent-to-kill
murder)
felony mur
intent-to-inflict-serious-bodily-injury
because
*27
der,
others, requires only an intent
commit an
unlike
kill
underlying felony
opposed to
intent to
or an intent to
as
an
injury
in
also
bodily
that results
death. The State
cause serious
implicitly
that
points to
of this Court’s decisions
have
several
by
recognized
felony
holding
nature
murder
the distinct
of
theories,
State
may charge sequentially on the various
trial courts
(1991)
164-65,
Perry,
128,
of
v.
124 N.J.
(approving
A.2d 624
590
offenses),
non-felony-murder
that a
sequential charge for
may be
without
purposeful-or-knowing-murder conviction
vacated
Pennington,
v.
conviction. State
vacating
felony-murder
(1990)
547, 556,
(reversing purposeful-or-know
A determination of murder into begin with of the structure of murder context must an examination Act, statute, 2C:11-3, N.J.S.A. Penalty murder and the Death N.J.S.A. 2C:11-3c part to -3i. The murder statute was of (“the Code”), 1978, 95, L. Jersey c. New Code of Criminal Justice 1979. N.J.S.A. 1, The September 2C:98-4. that became effective defines murder as follows: Code homicide murder a. as N.J.S.2C:11-4 criminal constitutes Except provided
when: (1) injury resulting death; causes The actor death or serious bodily purposely or (2) injury knowingly resulting in death; causes death or serious bodily actor or (3) It [commits murder], is committed when the actor felony
[N.J.S.A. 2C:11-3a.] Thus, of purposeful the Code defines three forms murder: murder (with bodily injury), intent kill or serious knowing to inflict (with knowledge/awareness murder bodily death or serious occur), injury felony will murder. N.J.S.A. 2C:11-3a.
Although
penalty
proposed
the death
been
had
at the time the
enacted,
Penalty
Code was
the Death
Act did not become law until
6,
1982,
1,
August
111,
L.
implement
§§
c.
3.
1982.
To
the death
penalty,
Legislature changed
penalty
of
section
the mur
statute,
2C:11-3b,
provided
der
N.J.S.A.
“except
add
as
1982,
111, §
subsection c.
this
L.
c.
section.”
1. Subsection “c”
limits
to purposeful-or-knowing
murders
murderers “who
conduct;
commit[ ] the homicidal act
own
or who as an
[their]
accomplice procure[
by payment
] the commission
the offense
or
value;
who,
promise
payment
anything
pecuniary
as ...
trafficking
leader[s] of ... narcotics
as defined in
network[s]”
2C:35-3,
killing.
N.J.S.A.
command the
N.J.S.A. 2C:11-3c.
jurisdictions,
Jersey Legislature
Unlike some
the New
has not
felony
death-eligible.
jurisdictions
made
murder
Some
have
felony
death-eligible
adopted
have
made
the unified-mur
Encinas,
493,
624,
concept. E.g.,
der
State v.
132 Ariz.
647 P.2d
Milan,
(1982); People
107 Cal.Rptr.
627-28
v.
Cal.3d
73-
*28
956,
74,
(1973);
State,
1260,
507 P.2d
961-62
Brown v.
473 So.2d
(Fla.1985);
Travis,
873,
People
Ill.App.3d
1265
v.
170
121 Ill.Dec.
830, 840-41,
Nissen,
1137, 1147-48 (1988);
525 N.E.2d
State v.
252
51,
(1997);
State,
157,
Neb.
560 N.W.2d
165
v.
840 P.2d
Crawford
627,
(Okla.Crim.App.1992).1
640
1
431,
The
781 P.2d
Kansas
Court in State v.
245 Kan.
1050
Hartfield,
Supreme
(1989),
Washington
Fortune,
and the
Court in State v.
128 Wash.2d
Supreme
(1996),
464,
360 statute, N.J.S.A. prior death-penalty
Although under our death-eligible, 1978), felony a defendant murder made (repealed 2A: 113-4 1978), 2A:113-2, Legislature (repealed -4 S.A. N.J. practice under our current Death not to continue elected Therefore, jurisdictions that have Jersey, unlike Penalty New Act. felony being a death- concept murder based a unified-murder offense, intentionally rejected predicate for a eligible has Legislature has estab charge. The fact that the unified-murder noncapital purposeful-or-knowing sentence for lished the identical felony not be determinative for murder should murder as has charge. culpable It is the require a unified-murder whether that determine aggravating circumstances plus mental state distinguish capital murder from death-eligibility and that also felony murder. purposeful required states to convict
The mental
“equivalent expressions of moral
knowing murder are
murder and
(1992)
557, 582,
Bey,
361 felony We conclude that equiva murder is not the moral lent purposeful-or-knowing of murder. Legisla We believe the ture death-eligibility intended that viewed be as the touchstone of Gerald, equivalence. moral Defendant’s reliance on State v. 113 (1988); Purnell, 40, N.J. supra, 549 A.2d 518, 792 126 N.J. 601 175; Brown, supra, 481, 19; A.2d Mejia, N.J. 138 651 A.2d supra, 475, 141 308, support A.2d his claim of entitlement to a charge misplaced. unified-murder
Gerald, supra, held that imposition penalty the death serious-bodily-injury murder Jersey violated the New Constitu tion’s ban on cruel and 113 N.J. at punishment. 89, unusual amended, A.2d 792. The Constitution 3, was effective December 1992, see Acts the First Annual Session the Two Hundred Legislature the State Jersey Thirty-Fifth New Fifth Under 76-215, the New Chapters Constitution: (1992) at 1429 (“Acts”), to overturn Gerald. See Assembly Judiciary, Law and Safety Committee, Public Assembly Statement to Bill No. 2113— L.1993, (“Statement”). c. Ill To ensure that the amendment effect, given would be full Legislature amended the Death Penalty Act to make murderers who intend to commit serious Ibid.; bodily injuries L. death-eligible. 1993, (approved c. 111 5, 1993). May
Purnell,
requires
case,
capital-murder
“all
rationally
forms of homicide
supported by the evidence ... should
placed
jury.”
before the
126 N.J. at
Brown, supra,
a death-eligible
involved
murder with a factual
required
scenario that
to decide whether
the defendant
*30
death-eligible
accomplice or as a
non-death-eligible
acted as a
509,
Similarly,
A
a nonunanimi
principal.
at
651 .2d 19.
138 N.J.
jury Mejia, supra,
in
a 1991
ty
to the
possibility was submitted
jury
to
whether the defendant
capital
in which the
had
decide
case
kill,
non-death-eligible
death-eligible based on an intent to
bodily injuries. 141
at
on an intent to cause serious
based
482-83,
479,
amendment that
Because capital jurisprudence, death-eligible offense and our is not a jury every opportuni stressing importance providing of a with life, purposeful-or- ty has been limited to spare to a defendant’s a factual in which the had to resolve knowing-murder cases death-eligible, dispute of that murder was determinative whether noncapital jurisprudence to murder. we decline to extend that in to murder as defined Those cases have been restricted aggravating factors has been N.J.S.A. 2C:11-3c for which notice 2C:11-3c(2)(e). given. N.J.S.A.
Moreover,
permit
to
a
to return a nonunanimous verdict
felony
nearly-univer
charge
“[o]ne
a
murder contradicts
by jury
requirement
is
of a
[which]
hallmarks of trial
sal
of the search for
unanimous verdict
criminal cases. The roots
Blackstone,
jury unanimity are
in 3
Commentaries
traced
William
594,
(O’Hern, J.,
Brown, supra,
at
651A.2d 19
*375-76.”
138 N.J.
dissenting
part).
public’s right
“to see that a criminal
The
acquittal
or conviction
prosecution proceeds to a verdict either
public’s
designed
in fair trials
to end
predicated
is
on ‘the
interest
”
597,
(quoting
v.
just judgments.’
Id. at
Aside from the absence
murder,
intermingling of death-
a unified crime of
create
non-death-eligible
create utter
eligible murder
murder would
instructing
jury.
consistently
chaos
when
This Court
has em
phasized
the need for
and correct
clear
instructions. Martini
I,
271,
1208;
Collier,
supra,
-B- Sequential Purposeftd-or-Knowing-Murder Presentation Charge Felony-Murder Charge and
Defendant trial contends court’s refusal to instruct the jury felony purposeful-or-knowing consider murder murder simultaneously, jurisprudence sequen- contravened this Court’s on charges. presentation tial capital Defendant maintains that in a ease, sequential to, presentation felony as an murder alternative of, capital as a offense murder lesser-ineluded creates a risk- jury capital considering will convict of the without murder felony murder as an alternative. by responds arguing sequential charge
The State that a is not inherently that, prohibited except small number of instances, sequential provide good deliberations with a framework in which work. only The State contends that the danger sequential thought, deliberations is stratification of by which can be avoided clear and a instructions clear verdict that, case, sheet. The State further instructing asserts in this first purposeful-or-knowing nothing preclude murder did if felony and that had had jury consideration of murder purposeful-or-knowing nature of any doubt about the reasonable killing, acquitted have defendant. would Purnell, 518, 601 A.2d supra, 126 N.J. and some Unlike cases, felony murder capital also was indicted for other defendant during an occurring homicide the commission of based on the Purnell, kidnapping. In aggravated assault and a sexual factor, case, aggravating c(4)(g) on the present the State relied Id. during felony. occurred the course of a that a homicide theory relating felony-murder A.2d The defense to the 175. present on the assertion that charge in the case was based artery accidentally compressed L.G.’s carotid defendant had thirty raping her. the basis of that about seconds while On presented, present contention and evidence the trial court charge felony a rational in the evidence to case found basis Purnell, however, did not submit murder. The trial court felony jury, notwithstanding the evidence to the State’s during felony. had occurred the commission of a that the homicide Ibid. case,
Purnell
that in a
held
be lesser
evidence,
all forms of homicide
whether
they
rationally supported
jury.
should be
before the
To truncate the
offenses,
ineluded or alternative
placed
statute and thus
the mechanism to decide
definitions
the murder
deny
Long,
of murder has
State v.
which of the forms
been
unacceptable.
proven
(1990). In
claim of entitle
365
(1991) (Stein,
concurring).
590 A.2d
That
Mancine,
265,
J.,
124 N.J.
1107
232,
general
subject
jury
view
to fair notice
should
with our
principle “comports
guilt
degree
to the
resolve the
of an actor’s
the basis of the evidence presented
jury.”
300,
One of
addressed in State v.
119 N.J.
(1990),
give
A.2d
the trial court’s failure to
a Gerald
575
435
460-65,
charge.
Long,
In
Id. at
In
course of
the murder was committed
one
which
2C:11-3a(3),
penalty may
specified
the death
felonies
in N.J.S.A.
imposed
felony-murder option has
unless the
been submit
jury, provided that
rational
in the
ted to the
basis exists
530-34,
Purnell, supra, 126
175. murder was submitted to the allega and Count the indictment Purnell Two of based on during kidnapping tion that the homicide occurred the course of a therefore, rape. Analytically, regard felony and we murder as a purposes deciding lesser-included offense of murder for appropriateness sequential instructions. Ordinarily, juries may not consider of lesser-included they acquitted greater until have of the fenses offense. State v. Harris, 525, 552-58, (1995); Coyle, 141 N.J. A.2d 662 333 State v. (1990). 194, 223, 119 574 N.J. A.2d 951 The rationale behind the sequential ordering greater- and lesser-included offenses is that evidence, supported by must convict of the crime as opposed compromising jurors greater between who want jurors Harris, charge acquit. who want to See (“[I]t duty 662 A.2d is not to reach compromise sympathy verdicts based on for the defendant or to holdouts, appease just by applying but to render verdict (internal charged.”) quotations facts it finds to the law omitted). Thus, jurors split if greater charge are between the acquittal, hung jury. the result is a following present
The trial court used the verdict sheet in the regarding charges: case the murder I
COUNT PURPOSEFUL OR MURDER KNOWING defendant, Did Cooper, purposely knowingly David cause [L.G.]? the death of
_ _ GUILTY
NOT GUILTY
If, only you if guilty find the following: defendant answer the
1. We find the unanimously defendant committed the murder his own conduct. by 2. We find did the defendant not commit the his unanimously own conduct. *34 agree the murder his that the defendant committed by do not unanimously 3. We own conduct. knowing- purposely murder for or (Only your guilty if verdict conduct, proceed to the causing will the trial ly death his own phase.) penalty death II
COUNT Felony Murder defendant, while Cooper, [L.G.] cause death of
Did the David of, committing crime of flight or in after in the course kidnapping sexual assault? and/or _
NOT GUILTY _ GUILTY (If knowing guilty purposeful your verdict is phase.) no felony penalty will be death guilty of murder there defendant, Guilty of Pur only you Cooper, if David If and find Knowing go to Count 3. poseful or Murder defendant, Guilty of only you Cooper, if find David Not If and Murder, following: you Knowing must answer the Purposeful or Manslaughter Aggravated defendant, manifest- Cooper, under circumstances
Did the David recklessly life ing indifference to the value human extreme of [L.G.]? cause the death
_
NOT GUILTY _ GUILTY Guilty following:
If, only your if answer is Not answer Manslaughter defendant, Cooper, recklessly
Did the David cause the death [L.G.]? _ NOT GUILTY _ GUILTY employed
The trial court asked verdict sheet and murder, purposeful-and-knowing felony first on deliberate then on murder, finally aggravated manslaughter. and reckless murder, charging purposeful-or-knowing After the court stated: *35 Before conclude defendant committed the murder his own conduct you may by must be of a convinced this fact reasonable doubt. If have a you beyond you killing reasonable doubt as to whether the was his conduct are own or if by you to reach a a unable unanimous decision reasonable doubt as to whether beyond the defendant committed murder his own that is a final conduct, by permissible on verdict this issue that would result in the for of a sentence imposition mandatory of at in without murder least thirty years prison parole. If after a of all the consideration evidence are convinced a reasonable you beyond knowingly doubt that the either or [L.G.’s] defendant caused ... death purposely guilty. then verdict should be all your however, after a consideration of the If, evidence find the State has each of you failed element the prove every go guilty offense a doubt verdict beyond reasonable must be not on your you be to consider whether should convicted the next in the count defendant of indictment which is murder. felony felony charge, At the of conclusion the murder the “[ujnder person may instructed that our guilty law a be found of a purposeful-or-knowing guilty murder and also can be found of counsel, felony request At murder.” the defense court the clarified its instruction: might regard knowing I have told and I don’t in remember but or you exactly, might guilty First murder the Count. I have said if found him not purposeful you the
then move onto Second Count of so— you murder. That’s not felony notwithstanding knowing verdict under Count First murder your purposeful verdict____ will move to murder of that I should also tell you felony irrespective regard guilty in to the if murder verdict is not or you felony your purposeful knowing guilty murder and no murder there will be death felony penalty phase. Just so know that. you sheet, charge, reading in Later while from verdict your court stated: “If guilty purposeful verdict
369 knowing guilty felony murder and murder there no will be penalty phase.” death case,
Although requires capital Purnell in a a felony-murder charge must be submitted to the if a rational exists, Purnell, charge 530-34, basis for that at N.J. placement felony- 601 A.2d it does not discuss of the charge. represents hybrid. clearly Purnell It is not regardless like lesser-included offense because of the verdict murder, purposeful-or-knowing still must be instruct felony ed to consider the murder in a if a case rational Purnell, felony-murder charge exists. in basis As present jury regardless ease had to be considered of the jury’s purposeful-or-knowing Today, verdict on murder. we have rejected which, concept, charging purposes, the unified-murder for sequential aspect charge would have made the similar to passion/provocation manslaughter purposeful-murder in a case. Coyle, supra, precludes sequential instructions such cases and requires charge passion/provocation incorporated that the into 223-24, purposeful-murder charge. A.2d 951. ease, passion/provocation Coyle
Absent a
states that
inherently
nothing
wrong
[sequential]
“there is
with the
model
charge
purposeful
murder.” Id. at
The trial followed that, jury notwithstanding on was instructed its verdict murder, felony purposeful-or-knowing it also had to consider By telling begin deliberating purposeful- murder. murder, jury’s in an or-knowing the court started the deliberations orderly told that it could fashion. The was never felony completed murder until after it had its delibera- consider Moreover, purposeful-or-knowing murder. defense coun- tions sel, strategy, as a matter of trial conceded that defendant was guilty felony way murder. Given the the ease was submitted to jury, sequential charge did not deter the from returning proper verdict.
-C- Charge Lack in Guilt Phase Ultimate-Outcome Defendant further contends that the trial court’s refusal jury, jury, instruct the or to allow defense counsel to inform the decisions, legal guilt-phase including potential effect of its murder, felony noncapital requires sentence for the offense of reversal. conference, charging requested
At a defense counsel that the acquitted purposeful-or- be instructed that if it defendant of murder, thereby knowing making ineligible him for the death murder, felony kidnapping, penalty, guilty found him but
371 assault, aggravated required sexual he would be mini- to serve a fifty-five years prison becoming eligible mum of in before parole. permit court The also refused to defense counsel to tell jury what the minimum alternative sentence would be. The felony- court reasoned that it was sufficient to instruct that a purposefiil-or-knowing-murder murder conviction without con- viction, preclude penalty phase. would jury guilty
The court then if instructed the it returned a murder, purposeful-or-knowing verdict on the minimum sentence thirty years would be to life. The instruction also stated that “[o]nly your if guilty purposely knowingly verdict is of murder or causing conduct, proceed death his own will the trial to the penalty phase____ your If guilty purposeful verdict is not of knowing guilty felony murder and of murder there will be no court, penalty phase.” death in prior accordance with its ruling, jury regarding did not felony instruct the the sentence for murder. juries
Generally,
in criminal cases are not informed of the
consequences
returning guilty
of
verdicts. “It is the function of
adjudge
degree
guilt
and for the court to
Grillo,
pronounce
173, 189,
State v.
N.J.
the sentence.”
11
93 A.2d
Bunk,
(1952);
461, 476,
(1950);
State v.
role as sentencer
phase
a
guilt-determination phase
penalty
“into a
and
tends to
phase
infecting jury
prevent
concerns
at one
from
relevant
Shuman,
66,
during
483
Sumner v.
U.S.
deliberations
other.”
56,
2716,
13,
13,
n.
n.
2727 n.
97 L. Ed.2d
71-72
13
85
107 S.Ct.
44,
(1987);
1,
v.
126
Although bifurcated
and
constitution,
by
it
required
cases
the federal
was observed
are
153,
2909,
Gregg Georgia,
in
428
96
49
v.
S.Ct.
L.Ed.2d 859
U.S.
(1976),
in
expressed
that the constitutional concerns
Furman v.
238,
2726,
(1972),
Georgia,
33
346
408 U.S.
92 S.Ct.
L.Ed.2d
“are
system
provides
proceeding.”
for a
best met
a
bifurcated
195,
2935,
Gregg, supra,
in the trial on the that it contributes to an informed assessment of sentence. decision of forces a between a both choice solution that questions Contemporaneous sentencing detracts from the decision and one threatens the rationality guilt. fairness of the determination of Either choice is and the second undesirable, be Trial alternative well unconstitutional. have little may understandably lawyers admitting trusting confidence the intermediate solution of such evidence an sentencing guilt. instruction to limit its than consideration to rather proceeding The obvious solution ... calls a bifurcated with strict observance guilty rules of evidence until the verdict and consideration of all subsequent information additional relevant sentence. (Official [Model Penal Code and § Commentaries at8, 210.6 cmt. 144-45 Draft 1980) (footnotes omitted).] and Revised Comments Focusing sentencing penalty phase, on the role capital sentencing jury fully this Court has held that must “[a] responsibility of its in determining appropriateness informed Loftin, v. 295, 370, State 146 penalty.” of the death 680 A.2d *39 (1996). Ramseur, emphasized As 677 the Court “[t]o jury from full range sentencing options, hide the the of its thus permitting to possibly its decision be based on uninformed and speculation, goals rationality inaccurate to mock the of consistency required by penalty jurisprudence.” modern death 311, 524 N.J. at 106 A.2d 188.
Thus,
during
penalty
the Court has held that
the
phase,
generally
juries
prior
trial courts
should inform
of
sen
serving
may
tences that the defendant is
that
because
information
jury’s
process
thought
determining
adequacy
bear
the
the
of
Loftin, supra,
life
N.J. at
opposed
sentence as
to
death.
372,
(noting
jury
prior
A.2d 677
that court
inform
should
if there
impose
sentence
is a “realistic likelihood” that court will
III,
sentence);
Bey
noncapital
consecutively
to
sentence
that
supra, 129 N.J. at
the court. The should be informed of the available options judge, the to and that the determination of had not sentence been made. In yet the trial court should that the addition, sentence not run explain may may murder, to that for but that the determination is to left the court. consecutively jury the court should the inform that defendant’s sentence for the Finally, possible regarding the other should not influence its determination appropriate- convictions will on the murder count. Such instructions assist ness of a death sentence safeguard jury against dispelling and will to confusion on the the help part sentencing determinations. improper [Ibid.] case, deny that the trial court present In defendant does the instructing jury I in complied the of Martini the with letter rejected penalty, penalty phase that if it the death during the years fifty-five parole. imprisoned for without defendant would be foregoing legal becomes whether the The narrow issue jury the developed in of the role of as principles, that have view during phase, applied guilt penalty should be the sentencer phase. that an instruction Defendant asserts ultimate-outcome during phase. support given guilt To his should have been claim, Mejia, supra, primarily relies on where defendant Court stated: guilt In court should have told the that its case, phase present mental whether determination of defendant’s state would defendant predetermine subject the court have to the death should instructed Specifically, penalty. if to kill he victim, it found that defendant had intended would subject told the to the death the court should have penalty. Conversely, injury, he had intended to cause serious would be bodily if found defendant subject ineligibility. The imprisonment thirty-years parole failure life jury’s which could have diluted the responsibility difference, inform error. the death constitutes reversible imposition penalty, *40 omitted) (citation (internal [141 [662 308] at 485-86 A.2d marks N.J. quotation omitted) added).] (emphasis jury legal well of
The State contends that aware dire, points particular, effect its decision. In to voir of where jurors twenty- potential told that defendant would face court years parole ineligibility kidnapping five of if convicted of assault, penalty phase sexual to the court’s instruction that only purposeful-or- if the defendant of would occur convicted knowing murder. argues Mejia’s requirement that
The State further legal guilt-phase informed of of its decision was be effect trial court informed the that a satisfied because the conviction
375 purposeful-or-knowing thirty murder of carried sentence years to life. Mejia 1991, 8,
When committed the homicide on id. December 479, 308, at A .2d who purposely knowingly 662 one or caused bodily injury resulting in eligible serious death was not for the Gerald, 89, penalty. supra, death 113 at A.2d 792. imposition penalty Gerald held that of the death for serious- bodily-injury Jersey violated New Constitution’s ban Gerald, punishment. unusual In response cruel and Ibid. to I, Jersey the New electorate amended Article 12 of paragraph Jersey Constitution, 3, 1992, New effective December to overturn Statement, Acts, supra; Gerald. supra, at 1429. The amendment provides part: It be shall not cruel and unusual to the death on a punishment impose penalty knowingly causing knowing- convicted or death or or person purposely purposely causing injury resulting serious in death ly who committed the homicidal act bodily his own conduct or who as an the commission of the by accomplice offense procured anything or promise value. payment payment pecuniary Const, ¶ [N.J. 12.] I, art. given
To ensure the constitutional amendment would full effect, Legislature Penalty amended the Death Act state that the term “homicidal act” means death “conduct causes bodily injury resulting Statement, supra; serious L. death.” (effective 5, 1993 May c. 111 and codified N.J.S.A. 2C:11- 3i). Mejia Because the murder occurred the 1992 constitu before amendment, Mejia apply tional Court felt constrained Gerald. Mejia requirement ultimate-outcome-instruction for the
guilt phase was based on the fact that the murder involved determination, required namely a Gerald mental-state whether there was an intent to cause death or intent to an cause serious bodily injury. Mejia, N.J. at 308. In A.2d context, that limited the Court held that the should have been consequences required findings: informed Gerald finding that a of an intent cause death would render the death-eligible, a finding defendant while of intent to serious cause *41 376 imprisonment life subject the defendant to
bodily injury would
485,
ineligibility.
A.2d
thirty
parole
Id. at
662
308.
years of
case, in
a
Mejia
which defendant’s
held that
a
issue,
give
at
a court’s failure to
an
under Gerald is
mental state
state
covering the alternative mental
is
charge
ultimate-outcome
a defen
such a failure would diminish
because
reversible error
jury to
that
defendant
opportunity for the
be unanimous
dant’s
victim,
knowingly killed the
but not unanimous
purposely
has
or
to kill or to cause serious
the defendant
intended
whether
words,
485-86,
if
bodily
at
The Gerald mental state issue pres- implicated in the Mejia instruction is ultimate-outcome earlier, July 18, defendant murdered L.G. on ent case. As noted time, By overturned a constitu- 1993. Gerald had been Acts, supra, eight for more than months. at tional amendment 1429.
Although
Penalty
Act
the 1993 amendment to
Death
murder,
present
we
added N.J.S.A. 2C:11-3i occurred before
Yothers,
Judge
v.
282
agree with
Skillman’s dissent
State
(Skillman,
86, 98-106,
J.,
N.J.Super.
(App.Div.1995)
A.2d
514
dissenting), that because
was decided on state constitution
Gerald
legislation
required
grounds,
implementing
no
to effectuate
al
99-100,
amendment.
Id. at
The Mejia ultimate-outcome
required
instruction was
Brown,
largely
517,
because of dicta in
supra, 138 N.J. at
651A.2d
There,
19.
the ultimate-outcome issue
the
was whether
guilt
should
told
phase
be
in the
that it could return a nonunani
492, 517,
“by
mous verdict on the
his
conduct”
own
issue.
Id. at
Thus,
-D- Charge Future Guilt-Phase Mejia for the Brown
Although reject standard we recog during guilt phase, we an ultimate-outcome instruction during jury given sentencing must information nize that a be some informed, jury as guilt of a case. The must be phase case, present purposeful-or- for in the that a conviction occurred knowing eligible to receive a sen murder makes defendant Harris, A.2d death. State v. at tence jury to It that that instruction could cause a 333. is conceivable charges noncapital-homicide sub speculate about sentence concern, the guilt-phase To mitted for deliberations. address jury in tried after the date of this decision should cases charges noncapital-homicide informed the trial court that the although extremely they do not are serious offenses and they carry penalty, severe expose the defendant to death not those prison sentences. The should be informed what numerical terms are. The should also not be instructed to comparative severity concern itself of the sentences for deliberations, various to it offenses submitted for its and that its responsibility solely is prosecution determine whether the has proving beyond met its burden of a reasonable doubt the defen- guilt charged Finally, dant’s on the offenses. should be if penalty-phase required, told that trial is will be potential informed time what the sentence is for each noncapital offense for which the defendant has been convicted penalty the event the imposed. death not
VI Constitutionality the Deathr-Penalty Statute filed pretrial seeking Defendant motion to have the Death Act, N.J.S.A. 2C:11-3c to Penalty —3i, declared unconstitutional as Eighth violative of the and Fourteenth Amendments the United States Constitution. The basis for that motion was “the ever- increasing number category of cases that seem to fall in the being death-eligible.” interpret He insists that the Court has adequately ed the death-eligible statute limit the class of persons. motion, The trial court citing denied the this Court’s repeated constitutionality. validation of the statute’s *44 repeatedly upheld constitutionality
We
have
the
Loftin, supra,
death-penalty
N.J.
statute.
146
at
A.2d
680
I,
677;
supra,
Martini
221-22,
1208;
131 N.J. at
Rams
619 A.2d
eur,
182-97,
106 N.J.
VII Failure to Instruct that State Mind Was Central Defendant’s Issue in Case argues although accurately
Defendant that trial the court in- jury purposeful-or-knowing felony structed the murder and 380 two, grant its to the failure
murder and the differences between question in the instructed that the central request that his prevent- during killing the state of mind the case was defendant’s case, namely, in the focusing on the critical issue the from ed death-eligibility or lack of mind and thus his state defendant’s thereof. has that the trial an properly notes court
Defendant explain law in that the obligation provide accurate instructions to Concepcion, the See v. the facts of case. State the context of (1988). facts, however, 373, 379-80, A.2d Two First, clearly argument. the trial court undermine defendant’s- felony murder and on the differences between instructed the murder, including “legal the effect” the purposeful-or-knowing Moreover, defense finding of one or the other or both. both in their prosecutor emphasized the differences counsel and that Defense counsel told summations. argue left I’ll is what type before only you, only question question knowing it it or murder. murder was it. Was murder. Was felony purposeful knowing to a reasonable murder, beyond Have they you proven purposeful suggest not. have is doubt. And I to have What they they really proven you lolling during kidnapping course had reckless sexual you assault he knew it. child. have that you of a Keckless the sense they proven That he intended to do it. describing spent much his summation
Defense counsel theory that defendant conflict medical examiner’s between apply pressure had to for at least four minutes to would have theory thirty cause death and the defense seconds would have issue, stating prosecutor also been sufficient. noted simply sitting saying case here and more this than “[t]here says Okay, okay kidnapping. I did the I commit- that defendant act. I mean to kill her. ted the sexual It was awful but didn’t felony Hence murder.” that, argument is if problem
The second with defendant’s requested given, effectively had trial court instruction been except purposeful- would directed a verdict on all counts have course, right plead or-knowing murder. Of defendant had *45 guilty any noncapital charges, or all but he not elected right. By invoking do so as right was his constitutional his to trial counts, jury on jury all he endowed with the role of position factfinder. court thus was not in a to instruct the jury what about facts to find and what conclusions to draw. Cf. Urbana, (5th Cir.1969) United v. States F.2d (holding that instruction that omitted elements crime that error, error); defense had although conceded was plain not Mer States, (5th Cir.1964) rill v. United 338 F.2d (holding 767-68 that, despite strategic defense counsel’s guilt during concession of summation, jury instruction that premise: could “start with this guilty proof the defendant is unless there has been of his error). insanity” constituted reversible Thus, although guilt defendant was entitled to concede his all charges except before the on purposeful-or-knowing murder, he was not entitled to an instruction that the could guilt charges. correctly notes, assume his on those As the State “[wjhile unlikely, fact-finding its role could have rejected acquitted defendant’s concession and him of several Indeed, provided crimes.” had requested the court instruction counts, and had the guilty returned the same verdicts all defendant arguing no doubt would now that the trial court had by “directing committed reversible error a verdict” that trial requesting counsel was ineffective for the court to do so. find, therefore,
We rejecting that the trial court did err in requested instruction.
VIII Factor, Depravity as Aggravating Submission an N.J.S.A. 2C:11-3c(4)(c) by submitting Defendant contends that the trial court erred factor, 2C:11-3c(4)(e) depravity aggravating as an N.J.S.A. (“c(4)(c)”), jury, prejudiced to the and that the error him. *46 earlier, that aggravating factors the State one of the
As noted that the murder was outra depravity factor: relied on was the horrible, wantonly vile, in that it involved or inhuman geously or case, underlying present theory the the the depravity of mind. In killing alleged a reason for L.G. lack of factor was defendant’s unsuccessfully, repeatedly, moved strike counsel albeit Defense factor, supported it and that arguing that insufficient evidence escape-detection aggra it inconsistent with submission was 3(c)(4)(f). factor, Although the con vating 2C: State N.J.S.A. 11 — aggravating factors to our law does not allow the two ceded that coexist, argued present represented a limited it that case exception general because defendant had no motive to the rule crime, getting away enjoyment part and of his commit with the crime. that, although instructed both the
The trial court twice
being
escape-detection aggravating
factors were
depravity
submitted,
they
both of them because
were
could not find
exclusive,
mutually
representing a reason for the murder and
one
unanimously rejected
no
The
representing
one
reason.
factor,
escape-detection
unanimously finding the
depravity
while
felony-murder,
2C:11-8c(4)(g), aggravating factors.
N.J.S.A.
Ramseur,
Court, expressing
In
concern that
depravity
unconstitutionally vague,
its
factor was
narrowed
207-11,
scope substantially. 106
[113 N.J. at 66,
792.]
549 A.2d
The Court
part
since has reiterated that
of
holding
the Gerald
in
Perry, supra,
173-76,
124
at
(holding
N.J.
Given the Court’s clear in this trial court’s jury submission both factors was error. The narrow issue then becomes whether the error was harmless. argues prejudiced jury, Defendant that he was having because the factors, only been told that it may could find one of the two have compromised by rejecting depravity accepting factor while escape-detection factor. assess, phase jury’s penalty is to function other, sufficiency aggravating
independently of each
aggravating or
rejection
of one
mitigating
A
factors.
its
compel
not
or inhibit
determination
mitigating factor does
Therefore,
highly speculative
it would be
another factor existed.
factor
aggravating
of an
that an erroneous submission
conclude
instruction,
limiting
prejudicially
jury,
appropriate
with an
factor(s),
remaining aggravating
on the
affected its deliberations
factor(s),
mitigating
weighing process.
and the
See id.
c(4)(c)
(erroneous
aggravating
factor
A.2d 1058
submission
overwhelming proof
existed
prejudice
did not
defendant where
factors);
felony-murder aggravating
see
escape-apprehension and
(1994)
DiFrisco,
434, 502,
137 N.J.
IX Penalty “Purposeful to Phase Failure Conduct” Define During penalty-phase escape-detection the instruction on the factor, that, jury aggravating the trial court instructed the
385 jury factor, order for the to find that it had to determine that purpose escaping defendant had the of detection at the time that However, he killed L.G. the court never “purpose” during defined penalty-phase its instructions of “purpose” definition requested. never
Defendant, for the first time
appeal,
on
claims that the trial
judge’s
to
“purpose”
failure
define
jury
respect
the
to the
factor,
escape-detection aggravating
2C:11-3c(4)(f), prej
N.J.S.A.
discretion,
him failing
udiced
to channel
particularly given
the weak evidence of a
escape
motive to
detection. Defendant
omission
contends
the
of the
of “purpose” may
definition
have
c(4)(f)
the
find
aggravating
solely
led
the
factor based
.
underlying
felonies
concedes,
implicitly
As the State
the trial court almost
certainly
by failing
erred
during
penalty
reinstruct the
phase
“purpose,”
on the
of
definition
which is an essential element
escape-detection
of the
correctly argues
factor. Defendant
purpose requirement
primary
is the
distinguishes
element that
escape-detection
felony-murder
factor from the
factor and that
felony
the fact
support
finding
alone
insufficient to
I,
escape-detection
factor. See Martini
v.
136 N.J.
Here, question becomes whether the omission was plain “clearly capable unjust error —error an producing result.” R. 2:10-2. plain We find that the error was not error because the repeatedly trial court “purpose” during guilt defined phase, suggestion and there was no the term had a different Moreover, meaning penalty phase. in the defense counsel dis *49 concept during cussed the his penalty-phase summation. Given terms, jury of the the repeated references to definitions the presumably meant and- certainly “purpose” knew what almost penalty-phase its deliberations. applied faithfully during it
X Penalty Phase Use Guilt-Phase Evidence of injected the trial court inadmissible asserts that Defendant it jury the when it advised into deliberations evidence trial, during including the all admitted could consider the evidence prov- had determining whether the State autopsy photographs, aggravating factors aggravating an factor en the existence of factor(s) outweighed determining aggravating the whether faetor(s). important because mitigating the issue became deliberations, the court whether during penalty the asked jurors photographs to the “appropriate for review aggrava- determining the purpose for the sole whether victim to mitigating photos factors.” The outweigh the ting factors close-ups of on the referred included two bruises question which neck, corpse lifesaving her attached photos two L.G.’s apparatus, close-up of her hand with fecal matter blood and/or it, legs lying spread apart. her on photo and a her back that, by failing to direct the
Defendant’s basic contention photos, the to use jury’s judge use allowed them arbitrarily. any empha- to do He prove aggravating factor and so only photos to which could have been sizes that the factor (to killing felony-murder prove that the factor relevant was assault). aggravated occurred in the course of an sexual photos responds to all three The State were relevant jury, aggravating to the and that the court’s factors submitted repeated cautionary not misuse instructions jury’s argues to limit use of them. The State photos sufficed photos escape-detection show an motive that the were relevant to have they for which defendant would because showed felonies detection, body. attempted as as the location of escape well
387 depravity, As for the State contends that photos the were relevant they because the helplessness showed of the victim and the Finally, senselessness of the murder. any the State notes that depravity error jury vis-a-vis the factor was harmless because the unanimously rejected that factor. consistently
This Court has held that evidence admissible guilt phase necessarily at the is penalty admissible the phase, only during penalty phase because the issues the are the determination aggravating mitigating and factors and the bal Dixon, of those factors. State v. ancing 223, 249-50, 125 N.J. 593 (1991). A.2d 266 Because of guilt the distinction between the and penalty phases, jury trial court guilt- the must instruct the which phase jury may during evidence the not consider penalty its Erazo, v. State deliberations. In 594 A.2d 232 (1991), the Court stated: When the same hears both the the court trial, should phases provide guilt-phase on
instructions the extent to which [sic] the use on may evidence guilt-phase its deliberations. Even penalty-phase when evidence is not incorporat- danger during ined the the that abides will on it penalty phase, rely jury concerning Thus, deliberations. the court should instruct the penalty-phase that use in evidence it its deliberations and for which may penalty purposes that evidence be used. may (citation omitted).] [Id. at 133, 594A.2d rationale, Judges Bench Manual for Consistent that Capital Causes provides following instruction: guilt sentencing proceedings. However, the are as considered phases separate guilt phase
The State contends certain that facts established verdict in the by your ... following aggravating also ... prove instructing again I am you deliberate these facts to your duty factor(s) aggravating alleges. determine whether the State You they prove right
have the to reach a different conclusion about these an whether facts prove aggravating guilt. factor than the conclusion reached as to whether you they proved Judges Judges [Trial Committee on Causes, Bench Manual Capital Capital (Nov. 1, 1996).] Causes J-6 question “[t]he evi- instruction in informed by both you includes relevant material to be considered dence trial[,]” and that the phases at both of the presented sides you all ... everything, the evidence jury could “consider part of part trial the second during first heard aggravating making your [the] as to ... determinations trial Defendant, however, to limit the wanted the court use factors.” *51 felony-murder aggravating factor. the to photos the to question photos the were relevant the real is whether The jurisprudence, aggravating Under this Court’s two factors. other depravity only tenuously are relevant to the factor. photos that that the proposition Court The State cites several cases cases, factor, photos support the but those graphic has allowed to issue, clarity probably are their lack of despite occasional they aspects of the factor inapposite because concerned other Moore, 420, 469, v. 122 585 discussing photos. State N.J. when (1991) pain to intent to inflict or (photos A relevant show .2d 864 A.2d depravity); McDougcdd, supra, 120 577 419 suffering to severe before (photos relevant to show intent cause Pitts, 580, 638-39, depravity); v. 116 N.J. or to show State death (1989) (photos to show intent to potentially 562 A .2d1320 relevant (1988) 123, 183, Bey, 887 pain); v. 112 N.J. 548 A.2d inflict State II) may aggra on torture and (Bey (“Photographs be admissible battery pain to proof of intent inflict severe or on vated as denied, death.”), depravity to after cert. U.S. show mutilation (1995). 1131, 130 1164, 115S.Ct. L.Ed.2d 1093 Thus, photos approved corpse the use explicitly the Court has pain, approved it has to mutilation and infliction of but show killing that Photos can be their use to show was senseless. prove pain. mutilation and intent to inflict As for very relevant to that, pain, given could conclude nature intent to inflict (and, wounds, the defendant must have tortured the victim so) inference, killing him her. to do before Howev- intended er, problematic. using photos prove to senselessness is more generally independent of the a murder is senseless is Whether gruesome nature of the wounds. A purpose could have a (i.e., revenge), relatively while a “civilized” murder could have no purpose at all. photos
The
State notes
could be relevant to show L.G.’s
helplessness, which the Court has
held
be a factor in determin
Ramseur,
ing
senselessness. See
A.2d 188. The could have determined L.G.’s small size, defendant, helpless she was to resist which could indicate that However, killing was senseless. no doubt was aware (given age) of L.G.’s small Graphic size her relative to defendant. photos unnecessary prove wounds were that element of depravity aggravating necessarily factor and were cumulative. photos
Because the did not more lend than the most tenuous support theory killing to the State’s depraved its unnecessary senselessness and helplessness, were L.G.’s show they largely were irrelevant to factor. photos only marginally escape- were also to the relevant argument
detection factor.
concerning
The State’s
escape detec-
that,
tion is
because the
was instructed not to consider
post-murder
defendant’s
determining
activities in
*52
whether his
detection,
motive was to avoid
other evidence of the factor became
important.
more
The
kidnapping
raj
State notes that the
and
e
(because
escape-detection
jury
were elements of the
factor
the
had
to conclude that
had
defendant
committed the felonies for which
detection),
escape
he
to
allowing
photos.
wished
thus
use of the
argument
First,
That
fails for two reasons.
defendant admitted
murder,
felony
assault,
kidnapping,
aggravated
to
and
sexual
the court
the
instructed
that it could consider evidence from
guilt phase during
penalty phase.
photos
the
the
The
were thus
III,
unnecessary
prove
underlying
to
the
Bey
felonies. See
at
129 N.J.
814 (concluding
photos
A.2d
that
were
unnecessary
prove underlying felony
felony-murder
to
factor
provided
felony).
because other evidence
sufficient evidence of
Second,
argument
the State’s
that
to
needed
introduce the
photos because of the dearth of
of a
other evidence
motivation to
underly
appears
proof
to
that
of the
escape apprehension
assume
escape
felony
prove
to
that defendant killed to
ing
is sufficient
however,
stated,
recently
“[m]ost
apprehension. As this Court
apprehension. That
to avoid
persons
hope
who commit felonies
[escape-detection] factor
automati
the
would
does not mean that
felony
...
cally
present
every case in which the
So,
Loftin, supra,
Given that the had relevance factor, felony-murder aggravating question the becomes whether instruction, use trial told the that it could the court’s which factors, any photos considering aggravating it was court was We conclude that error because trial error. jury’s balancing obligated to in its channel discretion Williams, aggravating mitigating factors. State v. 113 N.J. (1988). 393, 456-57, 550 A.2d
Moreover, maintains, court failed to as defendant also it could instruct not use same evidence escape-detection depravity given support both the factors may exclusivity. jury very well their mutual have used factors, thereby undermining photos support same exact both this Court’s definition of factors. We conclude photos. properly instructions failed to limit the use of any preju inquiry The next is whether defendant suffered clearly He dice as a result of the erroneous instructions. did any factor prejudice depravity suffer vis-a-vis the because the rejected that factor. also are satisfied that defendant suffered We photos regarding for the prejudice little or no the use *53 First, given minimal escape-detection factor. the relevance unlikely jury gave the them much photos, it is that consideration . deciding Second, when the existence of the factor other evidence existed, notably most defendant’s use of a condom bring and his ing very place, L.G. to a secluded pointed to a motive to escape Finally, detection. the trial court jury instructed the the escape-detection factor, definition of the aggravating thus focusing jury’s inquiry. the Those circumstances convince us that photos the use of jury the did not cause the to reach a decision it reached; would not otherwise have
XI Accidentally Photo Penalty Jury Submitted to Defendant contends that jury the accidental submission to the S-158, during penalty phase the graphic photo of the victim lying on her legs spread open back with her during' autopsy, the prejudicial. objected was Defendant during its admission the guilt phase already because he had conceded that he had commit- aggravated ted the sexual assault and photograph because the was especially gruesome. objection, The trial court overruled the reasoning despite defendant’s concession that a sexual assault occurred, photo probative assault, had the was an such court, however, therefore admissible. provided jury The the general cautionary regarding photos instruction general. .in During penalty phase, S-158 graphic photos was one prosecutor agreed defense counsel and the not to submit to jury. During jury’s penalty phase, deliberations in the court, question submitted a specifically to the which asked “is it appropriate jurors for photographs to review the of the victim purpose determining the sole aggravating whether the outweigh factors mitigating judge factors?” answered the question affirmative, stating “you in the may photographs use the you which Approximately fifty have room.” minutes instruction, after that returned with a verdict death. Unfortunately, photo accidentally submitted wedged larger because it was photos. between two The discov- *54 The trial its verdict. jury had returned ery after the was made during photo that have admitted that it would court then stated phase requested. if penalty held, concedes, photo was at that the as we Although defendant factor felony-murder aggravating relevant to least somewhat area, argues genital he nonetheless the victim’s it showed because substantially out- photo was marginal of the relevance that the impact. He maintains by prejudicial weighed its undue lacking any inflame the while capacity photo had aggravating factors. escape-detection depravity or to the relevance deprived him of that the accidental submission also contends He and to that evidence summation to confront opportunity an cautionary regarding the evidence. request a instruction relevant; photo by arguing that responds The State that the accidental submission unduly prejudicial; that it was not during photo already had been submitted in that the was harmless swayed jurors took an oath not and that the guilt phase; relevance, argues that the State passion. As for by prejudice or (which photos to admit has wide discretion the trial court scene) photo relevant correctly found S-158 to be crime confession, by showing evidence defendant’s corroborated felony- assault, depravity and relevant to the and was sexual factors, the sexual assault showed aggravating because injuries that it caused. and the brutal conclusion that S- analysis begin with the trial court’s must Our phase had the during penalty admissible 158 would have been Admissibility photo depends it. chosen to offer State relevant, and, so, its relevance was if whether it was whether prejudicial impact on defendant. substantially outweighed its N.J.R.E. 403. purpose for the admission recognized legitimate
One
phase is to
during
penalty
photos into evidence
graphic
II, supra, DiFrisco
confession.
corroborate
defendant’s
II,
In DiFrisco
found that a
the Court
N.J.
In
photos
the Court has held that
of the crime
may
prove
depravity
be relevant
aggravating
factor.
Moore, supra,
468-69,
However,
122
at
given
N.J.
In
phases, photos
admitted,
guilt
penalty
in
had
both
throat,
id.
at
on her
victim,
gaping
wound
of which showed
one
“lying on her back
419,
showed her
and one of which
577 A.2d
vagina.” Id. at
protruding from her
[a]
bat
and stomach
question
although the
held that
A.2d 419. This Court
577
close,”
its discretion
court had been within
“very
the trial
Similarly,
583,
Although photo been admissible would have opportuni- State, deprived of an admission defendant its accidental However, admit- because S-158 was ty to confront that evidence. afforded an guilt phase and defense counsel was during ted cautionary gave court respond, the trial opportunity to because graphic photos, and because the regarding the use of instructions factor, that rejected depravity aggravating we conclude jury prejudice did not defendant. the accidental submission XII Mitigating Evidence Burden of Proof properly allocate argues that the trial court failed Defendant Specifi- finding mitigating of factors. proof of on the the burden that, correctly cally, although the court in- defendant contends jury producing of formed the that defendant bore burden factors, jury mitigating it did not instruct the rehable evidence of disproving of such factors once the State bore the burden competent had introduced evidence of their existence. defendant deliberations, appropri- it During asked the court: “Is jurors yes ate if some choose not to vote either or no on individual wording mitigating factors due to of statements?” Defense coun- urged sel the court to instruct the that the State had the disproving mitigating supported by burden of factors credible evidence, so, choosing but the court refused to do instead tell factors, not should examine the substance juror wording. their exact The court also told the that each mitigating had to on each factor that the defense had vote submitted. Penalty specify persuasion Act of
The Death does burden factors, concerning mitigating except of to state the establishment defendant does not bear the burden. N.J.S.A. 2C:11- 3c(2)(a). statute, however, affirmatively impose a The does bur- alleged prove any aggravating of den on the State to the existence provides, in beyond factor a reasonable doubt. Ibid. The statute pertinent part, that: proceeding, of establish- At the the State shall have burden [penalty-phase]
ing
aggravating
a reasonable doubt the existence of
factors set forth
beyond
any
(4)
paragraph
of this subsection. The
shall have
burden
produc-
defendant
(5)
paragraph
ing
mitigating
set
evidence
the existence
any
factors
forth
regard
this subsection but shall not have a burden with
to the establishment
aof
mitigating factor.
added).]
(emphasis
[Ibid,
explicitly permits
statute also
rebuttal evidence:
to rebut
evidence
The State and the defendant shall be
any
presented
permitted
sentencing proceeding
argument
the other
at the
and to
as to
party
present
aggravating
mitigat-
of the evidence to establish the existence
any
adequacy
ing factor.
2C:11-3c(2)(d).]
[N.J.S.A.
Zola, supra,
phrased
inquiry as
“the
In
the Court
whether
*57
statutory
accept
mitigating
any
factor on
must
as a
factor
competent proof
has offered
and that the
which the defendant
396
438,
at
State
added).
are
recognized that there
two
The Zola Court
(emphasis
First, the
mitigating evidence.
steps
jury’s evaluation of
to the
rejected
competent.
Ibid.
Court
jury must find the evidence
finding
competent evidence re
contention that
defendant’s
establishing mitigating
accept that
as
quires the
evidence
Second,
competent, the
finding the evidence
factor.
Ibid.
after
Rose, supra,
In
judgment.
Ibid.
qualitative
make a
must
holding
that “whether or
the State rebuts
cited Zola
Court
factor,
mitigating
must still decide
proof of a
defendant’s
the existence of
if
is sufficient to establish
defendant’s evidence
539, A.2d
mitigating factor.”
We disproving mitigating after the defendant has come forth factors *58 given mitigation. The must credible evidence mitigating reject evidence accept to a defendant’s to discretion affirmatively challenges that the State regardless of whether mitigating by scope of compelled the broad That rule is evidence. that pronouncements by consistent this Court’s evidence mitigating evidence. placed on virtually limitations can be no disprove such affirmatively to rebut and to Requiring the State Fur- State. burden on the place an unwarranted evidence would satisfy, as nearly impossible to thermore, a burden would be such amorphous and necessari- quite are many mitigating factors factor. ill-defined, under the catch-all especially proffered those ly presented any evidence jury can consider that Given evidence, mitigating placing as throughout phases of the trial both it with the would saddle proposed burden on the State evidence, mitigating disproving all conceivable impossible task of imposition of such a by argued the defendant. whether or not instances, effectively require would, many burden juror is Because each mitigating factors. the existence of the find finds that he or she every mitigating factor required to balance finds, requiring the that the against aggravating factor each disproved each has whether the State jury also to determine end, imposing expansive. In the quite mitigating factor would be reality how change the on the State would such a burden weight attach Jurors jurors mitigating evidence. evaluate That they and credible. find reasonable mitigating factors now approach that courts common-sense reality with the coincides they significance jurors allowing to attach whatever follow of supported credible mitigating factors appropriate to believe change that estab- reason to offers little Defendant evidence. practice. lished
XIII Unanimity on Jury Try to Reach Should Instruction that Mitigating Factors reversible court committed that the trial
Defendant contends attempt to reach jury it should by instructing the error unanimity mitigating reasonably if on the existence of factors possible. argues effectively that the He instruction told the and, unanimity nonunanimity preferable thereby, may jurors to support have influenced abandon for some factors in an unanimity. effort to achieve conference,
During penalty-phase charging the trial court *59 charge jury indicated that the that it did would not have to reach a or unanimous decision about the existence absence thereof eighteen mitigating of each of the that factors defendant had submitted, attempt but it should reach a that to unanimous instruction, objected arguing decision. Defense counsel to the that agree I don’t believe law. I don’t think that’s the have to one bit and I don’t they agree. weighing think have to This to is an individual are they try process. They operating jury considering not se as as a a whole when are per they which
mitigating____ though. It to is seems better imply unanimity rejected The court that jury contention and the instructed as follows: mitigating relating The evidence the to factors should be discussed the fully
jury. agreement To the extent should to reach reasonably on possible you attempt mitigating the a of whether does or question factor does not exist. particular aggravating unlike However, factors, the law does not with require unanimity juror finding mitigating to the factors. respect Rather, each must individually mitigating weighing determine whether or each In not factor exists. the process juror aggravating each must decide whether factor or individually the factors outweigh mitigating found the reasonable doubt factor or unanimously beyond juror factors that that has found to be a full If after discussion find present. you that there are are not not —that unanimous on the existence or nonexistence you mitigating will record factor last vote on the factor on your the verdict you sheet.... So let’s assume it’s number 14 it could kind be whatever of numbers six and six no. yes charge, Later in the the court stated mitigating [i]f one of find that there is any credible evidence factor you any any sheet____ jury weighing will check to that fact on you next the verdict In the yes weigh aggravating will factors which all of process you individually have you found____ against mitigating
found factors which have you individually It is weighing to is an remember that this individual that is important process unique juror. aggravating each Each of should determine whether the factors which you outweigh mitigating all of have found factors which as an individual you you considering aggravating have all found. will be Thus, the same factors. But you varying among considering mitigating factors different individuals yon may individual those factors be. as to that —what that finds ways during In Loftin, the trial court instructed the unanimity require “law not penalty phase that does respect mitigating finding to the factors.” 146 N.J. stated, however, respect
A.2d
The court also
that “with
677.
factors,
reasonably possible, you
mitigating
extent
should
to the
particular
agreement regarding
to reach
whether a
attempt
an
Ibid.
mitigating factor does or does not exist.”
Although
recognized
may
trial court
that a
coerce
Lofbin
jurors
achieving unanimity mitigating
into
factors and
individually must
absence
the fac
determine
existence
tors, ibid.,
[in
the Court concluded that “when
isolated remark
whole,
charge]
charge
in the
as a
it is
viewed
context
there
error.” Id. at
In the while attempt unanimity if stating should to achieve not reasonably possible, repeatedly that the did have stated Moreover, Loftin, as in nonunani unanimous. was majority mitigating Of factors. mous on the vast submitted, eighteen mitigating factors that defendant fourteen, thereby nonunanimous decisions on demonstrat reached permissible. ing nonunanimity an awareness therefore, We, holding in our and conclude reaffirm Loftin merit. claim of error is without defendant’s XIV Mitigating Rebuttal Evidence State’s argues, appeal, that the State’s the first time on Defendant prosecutor’s commen- mitigating his evidence and the rebuttal of tary summation, during on that evidence both mischaracterized purpose mitigating injected nonstatutory evidence and aggravating proceedings. factor into the strategy during penalty phase
Defendant’s present was to testimony by family mountain of defendant’s members about violence, addiction, family drug alcoholism, general abuse that experienced throughout he had and observed his childhood. He presented testimony experts, also of numerous some whom had treated him as a child and some of whom had reviewed his records, background who concluded that predisposed his him to violence and ability distinguish failed to inculcate in him the right wrong. from
The State offered mitigating through rebuttal evidence Dr. Michals, Timothy psychiatrist. a forensic Dr. Michals testified extensively disorders, personality about antisocial conduct disor- ders, that, psychoses. opined although He conduct disorders generally treatable, personality are antisocial disorders are much difficult, more if impossible, to treat. He also stated that personality antisocial necessarily poor disorders do not result from parenting family and lack of relationships, stable and that bad family permanently environments do not cause an individual to become antisocial.
Specifically regarding defendant, Dr. Michals testified that de- fendant had being exposed benefitted from not substantially to his mentally ill, father, criminal and from attempt his mother’s rehabilitation. He stated that defendant capacity had the to learn and to right wrong, know what was and that he had received significant counseling during and treatment his life. prosecutor, during summation, her commented on defen- mitigating
dant’s evidence and the testimony. State’s rebuttal She stressed that certain members of family defendant’s had well, him treated and that family may members of his have *61 portrayed his childhood as help worse than it inwas order to him penalty. to avoid the emphasized death She also that one’s necessarily environment does not mandate what one becomes in life.
Defendant maintains that several prosecu- remarks made stepped tor proper First, over the line of comment. she stated in reference to allegedly stay defendant’s abusive with his uncle after his mother’s death: something something there Now, to think about there. There is to think about deciding
when what it you’re is that David owes his uncle Cooper We Larry. kept hearing anything about what Uncle owed David, but is there in us as Larry human beings giving that cries out and thank uncle for me a says you decent to live. place I’ll do best and I’ll fail but I’ll my maybe we have never heard that. try, It’s like how more times could many fail David. Larry Cooper Second, prosecutor stated: [it’s] the cousin Now, with all the fault. David had his own money’s Cooper money, but it’s the cousin with all the fault that David money’s drinks. It’s Cooper Larry’s Peeing fault. It’s Lucille’s fault. fault. It’s his lady’s mother’s fault. It’s his grandmother’s fault. It’s fault. It’s Mrs. Jones’ fault. Shirley Handberry’s It’s Richardson’s____ Jones’ fault,
Willie fault, [At] James no in Henry Cooper’s point time even when he’s 16 old when he’s 17 at no years year old, time does point David I for the Cooper say accept responsibility actions. We consequences my going have here —I was to count these for These are all for David you. help right got Defense it wasn’t the kind of Cooper. He’s from says attitude help____ the time he going walks till the time he walks out. And the bottom line he’s going cooperating. do what he’s to do and didn’t feel like he’s no kid Now, any molding, shaping more. You can talk about the the force and and the hard times that he had. But he had the same [various hard times with members of his family.] walking through ... He had him life and it continued people literally repeatedly figured advantage. from the he it out on how to day use and take manipulate, The trial court instructed the as follows: [I]t is to understand and remember that evidence of the important presence mitigating justify factors is not offered nor is it meant to or excuse a defendant’s committing mitigating conduct in the crime of murder. Rather, evidence of factors extenuating is intended to facts about the defendant’s present life character or surrounding justify the circumstances the murder that would a sentence less than death. argues testimony, Defendant that Dr. Michals his and the prosecutor summation, in her mitigating mischaraeterized his evi- attempting actions; whereas, dence as justify to excuse or to his purpose the actual present extenuating the evidence was to background circumstances about defendant’s character and in an attempt justify a life argues sentence. Defendant also that the
402 injected nonstatutory prosecutor’s aggravating fac- summation morally reprehensible attempting tor that defendant was for to persuade the to excuse him of the murder because of his background. Testimony
1. Dr. Michals’ earlier, testimony As the crux of Dr. Michals’ described was that, background, even with his defendant was able to control his right wrong. conduct and to know the difference between testimony implied Defendant contends that that he was at- tempting by presenting his conduct excuse evidence of his inability to control conduct. find that his We contention to be without merit. purpose mitigating “present evidence is to extenu
ating
regarding
facts
the defendant’s life or character or the
surrounding
justify
circumstances
the murder
that would
a sen
II,
Bey
tence less than death.”
A.2d
scope
887. The State’s rebuttal evidence is limited to
Rose,
mitigating
presented.
evidence that
the defendant has
supra, 112 N.J. at
Dr. Michals’ was in direct to defen that, mitigating presented dant’s evidence. Defendant evidence as background, way a result of his he was oriented such a that he aggressive, others, empathize was unable to unable to under effect, stand cause and and not inculcated with the values that normally impart implication families to children. The clear testimony defendant, was that upbringing, because of his was well-adjusted violent and could not control his conduct as would a person. implication Defense counsel echoed that in summation: going going [W]hat life is what’s to make to influence happens your ya —what’s go. going
which Which choice make. Which decision make. It’s way you you you decision-making just like shape your process shapes you. Although explicitly argued background defendant never that his conduct, clearly attempted persuade excused his he background explained being. that his his character and evidence, the State was entitled to response In to defendant’s background interpretation of the effect of his contest defendant’s explanation why defendant was what he and to offer a different through testimony of Dr. Michals. He That done was. was controlling his perfectly capable was testified defendant right and understanding difference between conduct and distinguish background not so awful as to wrong and that his *63 many grown up problem in households. him from others who have Thus, testimony in of Dr. Michals’ we find no error the State’s use mitigating to defendant’s evidence. rebut 2. Prosecutor’s Summation problemat somewhat prosecutor’s
The
summation was
attempting
pass
to
blame onto
implied
ic.
that defendant was
She
III,
Bey
supra,
others,
excusing
In
the
thus
his own conduct.
mitigating evi
prosecutor had commented that
the defendant’s
“not an excuse.” 129 N.J. at
The
raise that claim the
error. 129 plain
did not constitute
prosecutor’s comments
620-21,
trial court’s instruction that
XV
Mitigating
Factor
Ineligibility as
Fifty-Five Years Parole
requested that the
penalty phase,
During the
defendant
factor,
fifty-
submit,
mitigating
under the catch-all
trial court
from a life
years
ineligibility that would result
parole
five
jury in
rejected
request. During the
verdict. The court
struction,
that defendant would be
the court informed
fifty-five years
prison
parole
without
at least
sentenced to
impose
years if
did not
a death
possibly an additional ten
are for me
“[t]hose
court then stated that
decisions
sentence. The
possible
for these other convictions
to make. The
sentences
you
your
regarding
appropri
decision
should not influence
charge.”
penalty
of a death
on the murder
ateness
that,
gave
argues
the trial court
an ultimate-
Defendant
because
jury during
penalty phase, as
outcome instruction
obligation,
jury should have been allowed to consider the
its
mitigating
fifty-five years
parole ineligibility under the catch-all
deciding
impose
a sentence of
purpose
factor for the
whether
responds
parole ineligibility
possibly
cannot
The State
death.
*64
it
not
to a defendant’s
mitigating
factor because
does
relate
background
to
of the offense.
character or
or
the circumstances
I,
Martini
by
argument.
In
unpersuaded
defendant’s
We are
supra, the Court
rejected
argument advanced
defen
the same
313,
There,
dant. 131 N.J.
at
619A.2d 1208.
the Court concluded
jury during
although
instruct the
that
the trial court should
sentences,
phase
potential noncapital
“the court should
penalty
possible
sentence for the other
inform the
defendant’s
regarding
its determination
convictions should
influence
on the murder count.” Ibid.
appropriateness
of a death sentence
harmony
Martini
holding
regard
I’s
in this
is in
with the Court’s
III,
Bey
supra, pronouncements in related contexts. See
that,
(holding
although
inform
Defendant Martini I that in case, noncapital the sentence for the offenses was uncertain (i.e., noncapital may may run sentence not have consecu sentence); whereas, case, tively present the murder period parole ineligibility was certain because the statute required kidnapping consecutively that the sentence run to the 2C:13-1c(2). age. murder sentence based on the victim’s N.J.S.A. I, however, holding upon of Martini did not rest the fact the consecutive or concurrent nature of the sentence was Rather, that, uncertain. the Court was concerned without sen information, tencing jury might speculate about the sentences noncapital that a defendant would face for the counts and that jury’s speculation improperly such would influence the delibera results, speculative tions. To such avoid the Court determined potential that the should be informed of the sentences the I, noncapital defendant faced counts. See Martini N.J. at 619A.2d 1208. conclude, therefore, properly that the trial court refused to
We permit fifty-five years parole ineligibili- to consider the ty mitigating under catch-all factor.
XVI Merger Convictions penalty phase, trial
After the conclusion of the court noncapital court sentenced defendant on the convictions. The merged felony-murder purposeful-or-know conviction into the *65 aggravated-sexual-assault ing-murder conviction and one convic kidnapping tion into the other. It defendant on the sentenced parole twenty-five years of fifty-years imprisonment with to count twenty- to count aggravated-sexual-assault ineligibility and on the ineligibility, both years parole ten imprisonment with years purpose- consecutively any for sentence served sentences agree- argues, with the ful-or-knowing Defendant now murder. merge State, failing erred that the trial court ment of the kidnapping convic- conviction into aggravated-sexual-assault tion. should conviction aggravated-sexual-assault agree that the
We 2C:13-1e(2) kidnapping conviction. N.J.S.A. merged into the have twenty-five years kidnapping for punishment provides that sixteen-years-old was less than parole ineligibility if the victim in the course of the occurred aggravated if an sexual assault and any aggravated- requires that statute kidnapping. Ibid. That kidnapping merge into such a conviction. sexual-assault conviction Ibid. aggravated sexual assault are
The conviction and sentence Division for the remanded to the Law and the matter vacated judgment. entry appropriate amended of an XVII
Conclusion which must aggravated-sexual-assault conviction
Except for the conviction, affirm defendant’s con- merge kidnapping we grant noncapital sentences. We defen- victions proportionality review of conduct request dant’s that this Court argument to make full and that he be allowed his death sentence at that time. (1) cross-appeal: following arguments on raises the
The State presenting improperly limited the State from the trial court (2) improperly trial court testing; DNA that the the results from penalty offering evidence at the from rebuttal precluded the State seventeen; age after the phase regarding defendant’s life (3) that, penalty phase, the State the Court order new should *66 permitted victim-impact must be to elicit evidence. Those issues only guilt penalty would be relevant in the event of a new convictions, phase. affirming Because we are defendant’s we need note, however, not address those issues. that We Court (1997) 117, recently Harvey, held State v. 151 N.J. 699A.2d 596 II) (Harvey scientifically that certain forms of DNA evidence are reliable.
Affirmed and remanded.
STEIN, J., concurring. join judgment opinion except
I concur in the
the Court’s
respect
Although
agree
to section
I
V.C.
with the Court’s
that
trial
determination
court did not commit error
declin
ing
guilt
during
phase
potential
to inform the
of the
imposed
sentence to
in the
be
event defendant was convicted of
murder,
felony
my
the basis
conclusion differs from the
view,
primary reasoning
by
my
In
advanced
the Court.
the fact
Mejia
concerned a “Gerald mental-state determination” not
us,
implicated by
375-377,
the case
see ante at
before
A.2d at
330-331,
Rather,
dispositive.
is not
to the extent that State v.
475, 485-86,
(1995),
Mejia, 141 N.J.
The rule federal and state courts judge is that neither the nor counsel should inform potential sentencing consequences guilty of a verdict. See Martin Kolter, Fact, Reappraising Jury’s A. Finder Role as 20 Ga. (1985); Sauer, Note, L.Rev. 139-41 Kristen K. Informed Instructing Jury Mandatory Sentencing Conviction: About (1995). Consequences, 95 Colum. L.Rev. 1242-47 In Shan States, 573, 114 2419, 129 v. non United 512 U.S. S.Ct. L.Ed.2d 459 (1994), Supreme the United States Court elaborated on the basis request that a general in the context of a defendant’s
for that
rule
defendant would be involun
inform the
trial court
acquitted
if
institution
he were to be
tarily committed to a mental
insanity:
charged offense
reason
sentencing
has no
it should be
function,
It is
established that when a
well
might
regard
without
to what sentence
admonished to “reach its verdict
juries
of their
are not
consider
consequences
imposed.”
principle
*67
legal
in
division of labor
our
between
system
verdicts is a reflection of the basic
judge
jury.
jury’s
find
facts and to decide
whether,
The
function is to
charged.
judge,
guilty
crime
contrast,
those
the defendant is
of the
facts,
by
guilty
jury
at a
verdict.
on the defendant after the
has arrived
sentence
imposes
regarding
to the
of a verdict is therefore irrelevant
Information
consequences
jurors
jury’s
providing
sentencing information invites them to
task. Moreover,
distracts them from their
matters that are not within their province,
ponder
strong
factfinding
of confusion.
and creates a
responsibilities,
possibility
(citations and footnote
[Id. at
information
would unduly
jury: determining
of
criminal
to the central
culpability.
respect
responsibility
jury,
judicial
instructing
obligation
is to ensure
delibera-
“impartial
When
guilt
in
of a criminal defendant based
the evidence
tions
solely upon
upon
accordance with
instructions.”
proper
adequate
jury’s
is to determine criminal
not
The core
duty
culpability,
punishment.
jurors
do not allow trial courts to inform
of the
eases, we
Except
or
to the various offenses
availability
severity
punishments consequent
before them.
(citations omitted).]
[Id. at
618A.2d 316
61,
Pereira,
434, 439,
N.J.Super.
v.
202
Federal courts adhere to See, jurors. ing e.g., communicated to information should not be
409 (10th Cir.1992) Stanberry, 1323, v. United States 963 F.2d 1326 (“It is axiomatic that guilt the facts relevant to or innocence are sentencing for to decide and that the facts relevant are decide.”); Broxton, sentencing court to States United v. (D.C.Cir.) 1180, (holding 926 F.2d 1183 that “the is not to potential punishment consider the which could result from a denied, conviction.”), 1118, 911, cert. 499 111 U.S. S.Ct. 113 (1991); McDonald, 1212, L.Ed.2d 226 United v. F.2d States 935 (11th Cir.1991) (noting 1222 part that it is of Eleventh Circuit’s pattern jury question instruction to punishment advise case); should not in deciding be considered United States Patrick, 1150, (D.C.Cir.1974) (holding v. 494 F.2d 1153 jury’s guilt innocence, sole function to assess sentencing whereas court); within province decisions are exclusive United States v. Davidson, (6th 60, Cir.1966) (same); 367 F.2d 63 Pope v. United States, (5th Cir.1962) 507, (same); 298 F.2d 508 McClanahan v. States, (5th Cir.) 630, 292 (declining United F. 2d to find error instructing jury charge penalty concern itself with denied, guilty), event that defendant is found cert. U.S. (1961).
S.Ct.
not be considered
defendant”).
purposes against
or for retribution
defendant
Brown,
Mejia, supra,
our
decisions
Prior to our
trial court’s
emphasized a
jurisprudence had
punishment
capital
phase of a
capital
to inform
penalty
in the
case
responsibility
of the
determining
appropriateness
responsibility in
jury of its
a
practical effect of
life
apprise the
of the
penalty,
to
death
prior
sen
sentence,
jury about
defendant’s
and to inform the
speculation about a defendant’s
preclude
in order “to
tences
impose life or death.”
distorting
jury’s
decision to
from
release
III),
(1992)
(Bey
601-02,
557,
Bey, 129 N.J.
L.Ed.2d 621 sentences a instructions on the defense counsel or the requests potential when arising from the same trial as his capital- for convictions defendant will receive the trial court. The information should be conviction, such provided judge, sentencing jurors and that available to the should be informed options trial court addition, made. In of sentence had been yet the determination that for not run the sentence or may may consecutively should explain the court should determination is left to the court. Finally, but that the murder, should sentence for the other convictions inform the that defendant’s possible regarding of a death sentence its the appropriateness not influence determination dispelling confusion on the Such instructions will assist on the murder count. sentencing safeguard against determina- and will help improper part tions. 1208.] A.2d
[Id. Mejia opinions were the first to raise Although the Brown jury in sentencing information to the providing the issue Mejia not the focus of the Brown guilt phase, question Mejia considered and In both Brown the Court appeals. *69 jury guilt phase should question the in the the whether resolved returning a nonunanimous ver option of been afforded the have
411 Brown, In supra, diet. we held that the have should been a instructed that acceptable nonunanimous verdict was on the question whether the defendant had committed murders his 516-18, own 138 Mejia, conduct. N.J. at 651 19. In supra, A.2d we held that the guilt phase should have been informed in the that a acceptable question nonunanimous verdict was on the whether the defendant had committed homicide with the intent to bodily injury cause death or serious that 141 resulted death. 486-90, at N.J. 662 308. In appeal A.2d neither did the defendant argue or question brief the the guilt-phase jury whether had to be specific instructed on sentences which the defendant was exposed charged Hence, for noncapital my homicides. belief is may adequately perceived significance Court have implications consequential of that but narrow issue.
Among
important
noncapital
capi
distinctions between
prosecutions
juries
tal
is that
in capital cases are informed in the
phase
guilt
purposeful-or-knowing
conviction of
being eligible
results
the defendant
for a death sentence. See
Harris,
525, 536,
(1995);
State v.
141
Mejia,
N.J.
A.2d
308;
Brown,
supra,
662 A.2d
412 (ante 378-379, indicates, at
Nevertheless,
opinion
as the Court’s
guilt-
331-332),
candidly
inform the
courts
should
at
trial
700 A.2d
charges relate to ex-
noncapital homicide
jury
those
phase
offenses,
appropri-
for which result
tremely
convictions
serious
jury should be admonished
ately
prison sentences.
severe
severity of
comparative
itself with the
not concern
that it should
offenses,
its
charged
and that
for the various
the sentences
prosecution has
solely
to determine whether
responsibility is
beyond
doubt the defen-
proving
a reasonable
its burden of
met
also should inform
charged offenses. The court
guilt of the
dant’s
necessity
penalty-phase
of the
of a
in the event
phase
during
penalty
be informed
proceeding, the
would
subject in
would be
to which the defendant
prison
sentences
imposed.
penalty was not
the death
the event
trial
prejudice caused
contends that the
also
Defendant
guilt phase of his
jury during the
to inform the
court’s failure
felony murder was exacerbated because
sentencing exposure for
jury that in the event of
informed the
expressly
trial court
minimum sen
murder the
purposeful-or-knowing
of
conviction
the trial court
thirty years to life. Because
tence would
sentencing exposure for
of defendant’s
to inform
declined'
murder,
obviously should not have informed the
felony
that court
purposeful-or-knowing
jury concerning the minimum sentence
Nevertheless,
regard
as harmless. As the
I
the error
murder.
327,
observes,
370,
A.2d at
“defense
majority opinion
ante at
700
counsel,
strategy,
that defendant was
of trial
conceded
as a matter
Moreover,
potential
felony
during the voir dire
guilty
murder.”
of
kidnap
that if defendant were convicted
jurors were informed
twenty-five
include a
assault his sentence would
ping and sexual
Marshall,
v.
123 N.J.
ineligibility.
In State
year period
parole
denied,
929, 113
(1991) (Marshall I),
1,
cert.
507 U.S.
A.2d 85
586
(1993),
1306,
the trial court’s
we considered
413 totality ‘in light must be evaluated the circumstances— including all jury, arguments the instructions [and] the (quoting counsel....'" Id. 586 Kentucky A.2d 85 v. Whorton, 786, 789, 2088, 2090, U.S. S.Ct. 60 L. Ed.2d (1979)). record, this On there can be little doubt deliberating guilt in the phase was aware that if convicted *71 felony murder, defendant of kidnapping, and sexual assault he subject prison would be to a sentence that was substantial and comparable noncapital to the for purposeful-or-knowing sentence murder. my
In view of longer conclusion that the Court no should adhere Brown, aspects supra, Mejia, to those supra, suggest and necessity guilt-phase the jury that the be of a informed defen specific sentencing exposure charged dant’s noncapital for homi offenses, judgment join cide I concur in the of the Court and the opinion except respect Court’s with to section V.C.
POLLOCK, J., concurring dissenting. today,
Until
accurate
instructions were essential to the
jury’s
subject
determination whether the defendant was
to the
penalty.
death
principle,
Consistent with that
the Court has held
juries
that trial
guilt-phase
courts should inform
of the sentence to
subject
a
which
defendant would
if
the
should find the
guilty
Mejia,
of non-capital
defendant
State
141
homicide.
v.
N.J.
485,
(1995);
475,
Brown,
481,
662 A.2d
517,
308
State v.
138 N.J.
(1994).
addition,
In
to reverse Brown, Mejia rendered in the last of which were both obligate sen years, it to overturn defendant’s death three would however, majori following precedents, tence. Instead of those precedent remarka ty abrupt So a reversal of overrules them. result, ble, so it leads an irreversible all the more because penalty . death are
I accurate essential continue to believe that instructions community discharge duty its as the conscience 123, 126, Bey, A.2d death-penalty cases. State v. 112 N.J. 648 (1988) II) “crucial in a (Bey (noting instructions are responsibility a jury’s to decide whether case because of die”); Martin, also v. 119 N.J. defendant shall live see State (1990) map guide road (noting charge “[a] is a A.2d jury, charge appropriate without can take an deliberations”). Substantially wrong for the reasons turn its dissent, I I forth Point of Justice Handler’s would reverse set imposition penalty. death O’HERN, J., joins opinion. in this *72 J., HANDLER, dissenting. case, capital-murder
In this the Court affirms defendant’s con- significant in the of errors that viction and death sentence face reliability the determinations that in undermined the of resulted errors, guilt that in that conviction and sentence. Those both the very truth-seeking penalty phases, and went to the heart of the system. criminal-justice sustaining function our In the convic- errors, spite and tion death sentence those the Court irrationality degree of and that have tolerates a arbitrariness we from the spent attempting last decade and a half to eradicate Jersey. imposition punishment of the ultimate in New I defendant, During guilt phase, State contended L.G., intentionally her. kidnapping raping after and had killed Defendant, contrast, admitting while kidnapped, he had raped, L.G., and caused the death of insisted that her death had then, been Obviously, accidental. the critical guilt-phase issue— indeed, only truly issue jury before the whether defen- —was guilty dant murder, of purposeful-or-knowing thereby trigger- ing death-eligibility, or guilty felony whether he was murder murder, but not purposeful-or-knowing preclude which would death-eligibility.
Despite clarity dispute of that despite and defendant’s presentation of sufficient evidence to jurors allow reasonable accidental, conclude that the death had been the trial court effectively prevented jury fully understanding from the conse- quences of the death-eligibility determination that it was called upon to make. The trial court committed three fundamental regard: errors in that kept it knowledge from the of the felony sentence for murder providing while it full knowledge with penalties the various purposeful-or-knowing murder; present failed to the two different forms of in way murder a would have enabled the conjunction to consider them with another; one and it refused instruct the that it reach could nonunanimous, non-death-eligible split murder verdict between purposeful-or-knowing felony murder and murder. The trial murder, court’s felony diminution of defendant’s sole defense to murder, conjunction singular presentation its theory, profoundly State’s irrevocably prejudiced defendant, requires reversal of his conviction for purposeful-or-knowing murder.
A. In response specific defendant, request by the trial court that, refused to instruct the if it guilty found defendant felony (along with kidnapping aggravated sexual assault) *73 acquitted but him purposeful-or-knowing murder, of he fifty-five years would be sentenced to parole ineligibility. of The court reasoned that it jury was sufficient to inform that a felony purposeful-or- a of of murder without conviction
conviction trigger phase. knowing penalty a Defense murder would not jury simply tell the that requested then that the court counsel carried the felony purposeful-or-knowing murder sentence, namely, imprisonment thirty with noncapital life same request. years parole ineligibility. again of court declined counsel, effort, Finally, last-ditch if he would be defense in a asked during permitted jury summation of the sentence for inform however, court, support felony murder. The active argued attempting to prosecutor, who that defendant was focus murder, felony any comment much attention on barred too Thus, kept totally in the dark counsel the issue. was accepting that flow sentencing consequences on the would from case, theory namely, the sole defense of the that defendant was guilty only felony murder. instruction, guilt-phase trial informed
In the court’s actual it purposeful-or-knowing that if it convicted defendant mur- der, thirty years parole ineligibility he would receive either or murder, however, felony Regarding simply it stated that a death. felony-murder a purposeful-or- conviction without conviction of knowing penalty phase. a murder would not lead to deliberations,
Thus, fully during guilt-phase its purposeful-or-knowing that aware a conviction of murder —the or, theory State’s of the case—would result either death minimum, ineligibili- very long thirty years of parole sentence assurance, however, ty. felony It had that murder —the no such theory in the defense result exact same sentence as a —would conviction, noncapital purposeful-or-knowing-murder it adequately would to a even lead substantial sentence would believed, Indeed, punish very may well have defendant. given emphasis long purposeful-or- the court’s of the sentence for anything knowing its to say murder and failure about the sen- murder, felony felony much tence murder carried a lesser presentation greatly sentence. That one-sided weakened de- case; theory very may jury, well fense have dissuaded
417 potential juror or a holdout entertained a who reasonable doubt kill, giving about defendant’s intent to from serious consideration uncertain, appeared speculative to a result that would have in and possibility that it left the open only that result in would not a death sentence but that it not even would assure defendant’s imprisonment for a of period substantial time. handling
The trial court’s issue totally of that at odds with govern prosecution capital established standards that of firmly cases. It is established as matter of fundamental due process capital jurisprudence juries our that must understand “legal of It firmly effect” their decisions. is also settled that felony is a non-death-eligible alternative form of homicide juries give to which must full be allowed to consideration. consistently required We have trial courts to inform juries legal consequences of the of they their decisions so complete have a understanding range sentencing the full consequences, assuring thus their decisions be rational will Ramseur, In State v. 311, 123, N.J. informed. 106 524 A.2d (1987), penalty-phase juries, 188 we held that deciding when death, between life noncapital must be instructed about the purposeful-or-knowing sentence for murder. We stated that range sentencing permitting [t]o hide from the the full of its thus its options, decision to on be based uninformed and inaccurate is to mock possibly speculation, goals jurispru- rationality modem death consistency required by penalty dence. [Ibid.] (1996) (“A Loftin, 295, 370, State v. N.J. 146 680 A.2d 677 Cf. capital sentencing jury fully responsibility must be informed of its determining appropriateness penalty.”). the death Ramseur, explained
Since
we have
the mandate
inform
juries
legal
effect of
presentation
their decisions includes
currently
the penalty-phase
of sentences that the
defendant
(1992)
Bey,
v.
557, 603,
(Bey
State
serving,
129
610
A.2d 814
denied,
III),
cert.
1164,
1131,
U.S.
S.Ct.
513
115
In v. 138 N.J. 651A.2d we held that State juries agree guilt-phase must be instructed a failure unanimously capital “by a defendant committed his conduct,” 2C:11-3c, noncapital result in a own N.J.S.A. would thirty years thirty prison of and life in with sentence between years parole ineligibility. holding, In so we stressed the relevance of the own-conduct determination to penal the ultimate ty decision: jury’s final in verdict results a either life penalty phase imposition sentence minimum or a thirty-year term sentence of death. when Similarly, in a case decides whether a defendant committed homicide “by his own conduct,” its determination establishes whether that defendant will eligible Although for the death penalty. own-conduct consequences analogy determination and the identical, verdict are not penalty-phase compelling---- [A] defendant focus his or her efforts in the capital-murder may guilt raising trigger a reasonable doubt about issues that phase the penalty vigorously contesting guilt rather than
phase,
or innocence on the murder
with,
charge____
obligation
We
that,
are convinced
consistent
their
statutory
jurors
should
phase,
have been
penalty
'‘fully
consequences
informed of
their votes and the
which could result
penalties
in each eventuality."
added)
(quotations
[Id.
(quoting
The
logic
holdings
Mejia
of our
in Brown and
fully
apply
felony
to
murder.
accomplice-liability
Like
murder
murder,
and serious-bodily-injury
felony murder
a noncapital
is
form
subject
of murder that does not
a
to
penalty-
defendant
a
phase
though
trial even
jury
the
has convicted the defendant of
recognized
Purnell,
518,
murder. We
much
as
in State v.
126 N.J.
530-34,
(1992),
that,
420 ease, a support in the non- there is evidence
capital where every opportuni conviction, jury given must be capital murder ty charge carrying penalty.”). the death We convict not to of of deprive a defendant a lesser-included stated that “[t]o arguably would have affected charge, which alternative murder sentence, constitutionally permis deliberation of death Purnell, supra, at 175. We also 126 N.J. A.2d sible.” separate encompassed by [a that “when the offense concluded is, itself, aggravating a basis for an alternative charged] factor constitutionally non-capital, a of that is defendant is form murder in the that alternative offered for deliberation entitled have guilt at A.2d 175. phase.” Id. felony non-death-eligible as an
The status of
murder
alternative
murder,
repeated
of
in combination with this Court’s
insis
form
juries
fully
legal
of
guilt-phase
informed
effect
tence
decisions, including
noncapital
the sentences for
alternative
their
homicide, requires
that the
understand the sentenc
forms
consequences
felony
murder. The failure of
ing
of conviction
to inform the
of the sentence for
the trial court here either
felony murder or to allow counsel
do the same constituted clear
effectively
from
the full
“hid[]
error.
trial court
sentencing
range
options,
permitting
of its
thus
its decision to be
speculation ...
possibly
inaccurate
[and]
based
uninformed
moek[ing]
rationality
consistency required by
goals
Ramseur,
penalty jurisprudence.”
death
106 N.J.
modern
311,
of the doctrine constitutionality did derive from the of subjecting penalty only to the death those who intended to cause Indeed, bodily injury. Mejia years serious was decided several amendment, after the constitutional and its failure to limit its pre-constitutional-amendment convincing rationale to cases is perceive indication that the Court did not that the broad ultimate- principle outcome was limited to that restricted context. The aspect seriously of Mejia misperceives Court’s limitation this of greatly component capital juris undermines a critical of our prudence.
Apparently recognizing logic that its about of “moot[ing]” Mejia is insupportable, especially application because of Brown’s principle informing legal the exact same effect decisions, guilt-phase only its Court resorts to the action salvage it can to this take defective conviction and death sentence, (albeit namely, apply refuse the inconvenient well- reasoned) precedents way. dispatching stand After Mejia, holding juries the Court guilt-phase converts Brown’s noncapital must be informed of the for accomplice- sentence “dicta,” liability murder into which it Ante then overrules.
700A.2d at 331. attempts justify away informing
The Court its shift from juries asserting legal guilt-phase effect of their decision *78 422 not informed of the juries in criminal cases are “[generally, at-. The returning guilty verdicts.” Ante
consequences of
equation
new-found
elaborates on
Court’s
concurrence further
stating that
proceedings,
criminal
capital
noncapital
guilt
during
not be distracted
should
in
[e]ven
case,
phase
a capital
sentencing
homicide
information about noncapital
from its function by specific
jury’s
return
charges
intrude on the
deliberative responsibility
that could
charged
guilt
as
as to
well
crimes,
or innocence
verdicts on the defendant’s
death-eligibility.
determine
(Stein,
concurring).]
[Ante
J.,
In on our determinations, guilt sentencing consequences of their about context, capital the Court justify the same rule order to repeated Legislature and this Court ignores fact that both the taking human life the State so ly that the have determined unique punishment procedures from other forms of different appropriate. noncapital trials are capital trials and unheard of mandatory Legislature, example, for has vested exclusive Court, 2C:11-3e; jurisdiction in N.J.S.A. has deter appellate this sentence, impose juries, judges, generally should mined that 2C:11-3c(1); leeway provided incredible to defen has N.J.S.A. evidence, 2C:11- presentation mitigating N.J.S.A. dants in the 3c(5)(h); penalty verdicts that provided for nonunanimous and has 2C:11-3c(3)(c). benefit, None of N.J.S.A. redound to defendants’ noncapital in the criminal extraordinary procedures exist those context. Court, well, differently from capital treated cases
This
as
has
A.2d
E.g., Loftin, supra, 146 N.J. at
noncapital cases.
(“While
ordinarily
adequate to
dire is
deemed
an in banc voir
jury,
on an individualized voir dire
impartial
we insist
ensure an
range
cases because
of discretion entrusted to a
capital sentencing hearing....
in a
juries
Because
have so
discretion,
greater
much more
there is a
need
screen out those
jurors
impartial.”) (quotations
who cannot be
and citations omit
ted);
13, 30,
(1987)
Biegenwald,
State v.
106 N.J.
Yet, misguided holding, however the Court’s it is not fatal to death-eligibility defendants who seek determinations juries import that understand the of guilt-phase their death- eligibility Fortunately, preserves, determinations. Court for cases,1 aspects knowledge all jury legal future of full effect guilt-phase of except years decisions for the exact number of non-death-eligible carry. example, forms of For murder trial juries courts must tell of which forms homicide do and do not lead phase penalty to a all the homicide offenses are “extremely carry prison serious” and “severe sentences.” Ante at 1 The Court must make its minted version the ultimate-outcome newly instruction because, new, even under the Court’s limited purely prospective rule, ultimate-outcome the trial court in case noted, this erred As after badly. the trial court refused instruct about the exact for sentence felony jury anything murder, it refused to tell about murder, the sentence for felony including the that it a fact carried substantial sentence that was to the equivalent purposeful-or-knowing sentence for That noncapital murder. refusal was wholly holding juries inconsistent with the Court's must receive least a fair today degree sentencing guilt-phase of information about the results of their determi 378-379, nations. Ante at A.2d at 331-332. holding is a
378-379, Implicit in the Court’s at 331-332. 700 A.2d juries noncapital that the trial courts also inform requirement that death-eligible non-death-eligible and forms of for certain sentences course, by an instruction (accompanied, equivalent are lengths the sentences comparative consider the not to thereof). determining guilt or lack juries the numerical
Obviously, just trial courts must not tell as homicide, they permitted nor are noncapital forms of for sentence death-eligible for juries noncapital sentence to inform life). (i.e., thirty years In other purposeful-or-knowing murder words, determining guilt not be informed of must a that would result from purposeful-or-knowing murder sentence for appropriate that death is not the penalty-phase determination noncapital know the guilt-phase If were to sentence. knowing death-eligible the sentence for murder without sentence homicide, inequity would result non-death-eligible an obvious death-eligible induced to convict of could be because murder, quantity, in order to assure which would be a known *80 today recognizes, juries should not long sentence. As the Court guilt-phase determi- speculate the results of their be left to about juries Ante informing Not about 700A.2d at 332. nations. death-eligible for either or non- length of sentences the exact that, form telling them whatever the death-eligible murder while (and, convict, they the sentence will be severe of murder of which murder, felony and purposeful-or-knowing in of murder the case jury to noncapital equivalent) will be will allow the sentences being by knowing the sentence fulfill function without misled its forms of homicide but not * * * some overruling of our places on its Despite the limits that the Court apply ultimate-outcome precedent, its refusal to well-reasoned firm sharp departure a from our rule in this case constitutes primary emphasis on practice placing of tradition and consistent substantively the death application fair of procedurally and directly going effectively holds that a rule penalty. The Court truth-seeking process the heart of the should applied not be to this ease, despite essentiality theory of the rule to the defense despite repeated defense counsel’s invocation of the rule. issue, submit, I vitality
The real
about
is not
the continued
of
Mejia or whether
the ultimate-outcome issue
briefed in
Mejia,
(Stein, J.,
Brown and
ante at
B. noncapital Court also deflates the doctrine of alternative offenses, murder doctrine that fundamental to the fair and system capital punishment. constitutional administration of our accident, competing Based on the intent theories of defendant requested trial court instruct it should purposeful-or-knowing felony evaluate murder and simul- murder taneously tandem purpose with one another. The of that request enable was to to consider both forms murder initially tilting without one favor of over the other. The trial however, court, instructing request, refused the instead felony only deliberating that it should consider after about *81 theory purposeful-or-knowing may of State’s murder. It that, circumstances, sequen- case under all the the trial court’s presentation tial of of the two forms murder was harmless error clearly jury
because the convict court informed it could of 426
felony acquitting purposeful-or-knowing murder murder while of Nevertheless, penalty phase. and that such a result would avoid (mis)treatment strongly disagree I with the Court’s of the vital non-death-eligible due-process doctrine of alternative murder of- fenses.
Although
traditionally
required juries to
less
we
have
consider
offense,
only
they acquit
greater
after
of the
er-ineluded offenses
Harris,
525, 552-53,
(1995),
e.g.,
141
State v.
N.J.
Thus, 194, 221-24, Coyle, in State v. A.2d 951 (1990), that, we held where a rational basis exists for the passion/provocation manslaughter, convict a defendant of death-eligible, death-eligible purposeful-or- which is not instead of murder, knowing presented simultaneously the two must be so that the does not consider whether defendant had an considering passion provoca intent to kill without also whether actually killing. sequential presen tion caused the We noted that tation had the to foreclose consideration of whether potential passion/provocation killing manslaughter. should reduce an otherwise from murder purposeful Thus, evidence of have record, despite passion/provocation may object finding [was] convicted defendant murder that “it his conscious simply injury,” having
to cause death or serious
without
considered the
bodily
possibility
manslaughter
of a
verdict.
[Id.
951.]
222-23,
A.2d
*82
427
483-85,
308,
Mejia, supra,
In
[Id.
308.]
662 A.2d
484,
Mejia
Coyle
proposition
stand for the
that where a rational
basis exists for the
to convict a
defendant of a non-
homicide,
only
death-eligible alternative form of
must the trial
Koedatich,
340,
offense,
225,
charge that
v.
112
court
State
N.J.
(Koedatich I)
(1988)
murder),
(accomplice-liability
Despite
clarity
precedents,
our
the Court concludes
felony murder is no more than a traditional lesser-included offense
may
purposeful-or-knowing
murder and thus holds that it
be
regardless
significance
particular
charged sequentially,
of its
363-370,
case. Ante at
Felony murder’s status as a true alternative form of murder is
statute,
confirmed
the murder
which defines
structure.of
killing accompanied by purpose
“murder” as
to cause death or
bodily injury, knowledge
bodily
serious
that death or serious
occur,
injury
engage
will
or the intent
in an enumerated
predicate felony.
Felony
N.J.S.A. 2C:11-3a.
murder is thus a
2 The facts of Purnell further undermine the Court's conclusion that felony
regardless
murder,
case,
facts of a
is
a traditional
lesser
specific
simply
purposeful-or-knowing
ineluded offense of
murder and not an alternative of
Purnell,
fense.
In
the defendant stabbed the victim fifteen times in the
neck, chest, and abdomen. 126
at 528,
more,
neous
pas-
murder
sion/provocation manslaughter
necessary
because the mental
states of the two are “interrelated” and “shade[ ] from one into the
contrast,
By
says
other.”
Ante
Indeed, analogy passion/provocation between a defense and accident/felony-murder an compelling. pas- defense is In the context, sion/provocation the defendant admits that he caused the killing passion provoca- death of the victim but attributes the to tion; thus, dispute prosecution between the and the defense premed- boils down to whether the defendant killed the victim in a itated, only being deliberate manner or whether he did so after Likewise, provoked way. accident/felony-murder in some in the context, the defendant that he admits caused the death of the accident; thus, killing victim dispute but attributes the to an prosecution between the and the defense boils down whether the defendant premeditated, killed the victim in a deliberate contexts, manner or accidentally. whether he did so In both premeditation thereof, is confronted with a choice of or lack and, contexts, consequences jury’s both choice is enormous, namely, penalty phase triggered. whether will be similarity How the Court can puzzling. dismiss that Obviously felony murder and other murder offenses need not be presented coequal as alternatives purposeful-or-knowing mur- cases, regardless der all of the evidence. A rational basis must exist in order for felony to consider murder aas viable option. Trial courts should evaluate the facts and circumstances presented of the evidence and defenses in determining whether alternative homicide presented offenses should be simultaneously death-eligible ease, murder. In this such a rational basis existed.
The trial court ignored nevertheless requirement and in- structed the that it should not felony deliberate on murder and, deliberating without first implicitly, acquitting or convict- on— ing purposeful-or-knowing presentation murder. That could of— have exerted a jury by coercive influence on inducing it to consider purposeful-or-knowing giving equal without con- defense, sideration to namely, defendant’s sole killing that the had been consequently accidental and that he guilty only felony error, however, murder. The may have been harmless because the trial clearly court informed the that it could convict of felony acquitting murder while of purposeful-or-knowing murder and that such a result penalty phrase. would avoid a
Yet, the harmlessness of the error
justify
does not
the Court’s
disposition of this
provided
claim. Jurors
“every opportu
must be
nity to convict of
charge
not carrying
penalty.”
the death
Cannel,
Moreover,
supra.
jurors
possess
must
a clear under
*85
standing
“legal
guilt-phase determinations,
effect” of their
including their
death-eligibility. Mejia,
effect on
supra, 141 N.J.
485,
308; Brown,
at
517,
662 A.2d
C.
rejects
possibility
a nonunanimous murder
The Court also
jurors
purposeful-or-knowing
verdict which
are divided between
felony
nonunanimity theory, if
murder and
murder. Under that
jurors
kill
some
believe that a defendant intended to
while other
jurors
accidentally
felony
that he killed
in the course of a
believe
and, hence,
guilty
felony
purposeful-or-
murder but not
murder,
knowing
non-death-eligible
then the result is a
our re-
conviction. The Court’s conclusion is inconsistent with
juries
“every opportunity
quirement that
have
to convict
Cannel, supra.
charge
carrying
penalty.”
the death
Jersey’s
in that
New
murder statute has a distinctive structure
initially
capital punishment
it
drafted without
mind.
When
simply
Legislature
adopted
penalty
the death
later
engrafted death-eligibility
already-existing
onto the
definition of
Gerald,
89-90,
supra,
noncapital sentence, namely, years thirty impris between and life thirty parole ineligibility. years onment with N.J.S.A. 2C:11- 3b. comprehensively defining distinguishing
After
“murder” without
it,
among
may
rise
give
the five mental states that
the statute
death-eligibility.
by
defines
It
N.J.S.A. 2C:11-3c.
does so
simul
taneously
felony
exempting
accomplice-
murder and
forms of
most
liability murder.
Ibid. This Court added a class of cases to that
exemption
application
penalty
when it invalidated the
of the death
specifically
kill
murderers who did
intend to
their victims or
Gerald,
knowledge
supra,
have
death would
occur.
113 N.J.
69-92,
Although
at
superseded by
With the onto the murder statute, question the Court faced with of how to distin- guish death-eligible non-death-eligible between Af- murder. all, ter equated while the murder statute a number of mental general “murder,” states as various forms crime of death-eligibility provision distinguished among of the statute those mental (e.g., states and made even principal further distinctions accomplice). versus by responded emphatically relying
The Court original on the “murder,” definition distinguishing among without differing states, by viewing mental death-eligibility provision as a simple penalty-phase triggering mechanism, without relevance to underlying substantive definition of “murder.” As we stated Mejia, supra: Like the own conduct” to kiH” “by your “intent “is requirement, requirement triggering
not an
[but is]
element of the offense murder
device for the
merely
trial.”
death-penalty phase
(quoting
[
Given that established decisional felony arbitrarily this ease is whether murder should be excluded nonunanimity despite jurisprudence from our the inclusion of every other form of “murder” as defined N.J.S.A. 2C:11-3a. of a The Court concludes should be excluded because perceived legislative underlying intent the murder statute and felony if because of the “chaos” that would occur murder were included. legislative misplaced.
The Court’s reliance on intent is It states Legislature [t]he fact that the has established the identical sentence for noncapital purposeful-or-knowing as it murder has should be determina- felony *88 charge. tive of whether to a unified-murder It is the mental state require culpable aggravating death-eligibility circumstances that determine and that also plus distinguish murder from murder. felony
[Ante 322.] at 700A.2d at 360, noting “felony liability After that murder is an absolute crime contemplated a because defendant need not have or intended the ibid., death,” Legislature victim’s the Court concludes that “the death-eligibility intended that as be viewed the touchstone of equivalence”3 determining in moral which forms of can murder 3 "Moral is the standard that both the United States equivalence" Supreme determining Court and this Court have for whether two reas are mens adopted enough similar in terms of traditional notions of blameworthiness for the government single to base a conviction for a crime on the two mens reas without having Arizona, 624, 643, which one. See Schad v. 501 U.S. 111 S.Ct. specify (1991) ("If, (plurality opinion) 2491, 2503, then, 115 L. Ed.2d two mental states are to be means to the mens rea supposed equivalent satisfy single offense, element of a must reflect notions of they reasonably equivalent degrees a blameworthiness or whereas difference in their culpability, perceived of would be a reason to conclude that identified different culpability they combined form a nonunanimous murder at verdict. Ante 700 A.2d 322. holding non-death-eligible theory The Court bases its of —that death-eligible theory
murder cannot combine with a to form a general death-eligible murder conviction —on the conclusion that non-death-eligible equivalents. and theories are moral' conclusion, however, support death-eligibili- for that simply is ty equivalence, proposition is the of moral touchstone that serves premise as both the its Court’s and conclusion. The Court thus begs key question why death-eligibility, opposed of as to other structure, aspects of the murder statute’s of is “touchstone” equivalence. moral equivocal
The Court’s assertion finds in support the statute’s language history support and and no in jurisprudence. this Court’s statute, noted, groups The murder as all five mind states of together category provides “murder” and are all punishable by imprisonment. exempts term the same It then felony accomplice-liability murder and most forms of murder from death-eligibility. structure, alone, standing That does not lead to death-eligibility inevitable conclusion that is the “touchstone” equivalence. If anything, Legislature, moral the fact that the enacting the penalty, death maintained unified definition 2C:11-3a, dividing murder N.J.S.A. instead that definition of murder, “noncapital” “capital” suggests murder into morally for the intended various forms murder remain equivalent.
Concededly, ambiguous statute about whether Legislature death-eligible non-death-eligible for intended hand, equivalents. forms of murder to be moral On the one Legislature all grouped together forms of murder in the definition imposed punishment of “murder” noncapital the same them, b; hand, *89 & distinguished N.J.S.A. 2C:11-3a other it among death-eligibility, them in terms N.J.S.A. 2C:11-3c. altogether."); (applying III, N.J. at 610 581-82, offenses 129 A.2d 814 Bey supra, standard). Schad Thus, plausible it to look to either section of the statute is legislative regarding equivalence. moral discern a intent however, statute, fully clarified this ambiguity in the death-eligibility repeated rejection of as the sole determi Court’s Brown, equivalence. supra, In we nant or “touchstone” of moral held that could reach a nonunanimous verdict about (non- (death-eligible) principal a whether the defendant was 511-18, accomplice in death-eligible) the murder. 138 N.J. at Likewise, Mejia, supra, A.2d in we validated nonunanimous 19. (non-death-eligible) serious-bodily- split murder verdicts between injury (death-eligible) murder and intent-to-kill murder. 486-87, Mejia, holding A. In our on the
at
662 2d 308.
we based
specific
actual
irrelevance of the defendant’s
state mind
conviction,
jurors
stressing
long
“murder”
instead
that as
as all
agreed
requisite
that one of the
states of mind for murder was
resulted;
present,
of mind came into
a murder conviction
state
play only
jury unanimously
agreed
had
to determine whether the
mind,
death-eligible
thereby triggering
penalty
on a
state of
486,
308;
Brown,
phase.
supra,
Id. at
662 A.2d
see also
138 N.J.
19; Gerald,
99,
supra,
651 A.2d
In order to avoid that the Court chooses to claim, rely support stating on assertion to its Legislature death-eligible [b]ecause the has decreed that murder is not a felony jurisprudence, stressing providing offense and our a capital importance with to a defendant’s has been to every life, limited opportunity spare purposeful- or-knowing-murder in which cases had to resolve a factual dispute death-eligible, determinative of whether that murder was we decline to extend that jurisprudence to murder. Those cases have been restricted to noncapital capital aggravating murder as defined in N.J.S.A. 2C:11-3c for which notice of factors has 2C:11-3c(2)(e). given. been N.J.S.A.
[Ante at
323.]
The Court comes closest to
its excision of
felony
unambiguously coequal place
murder from its
in the stat
by relying
felony
ute’s definition of murder
murder’s “differ
rea, namely,
ent”
liability
mens
its status as an “absolute
crime.”
undermined,
at
Ante
Moreover,
necessarily
felony
requisite mens rea is not
murder’s
predicate
reas. All of the
felonies
culpable than other mens
less
assault, arson,
(robbery,
burglary, kidnap
felony
sexual
murder
high
or
risk of
escape)
criminal
involve either violence
ping, and
others;
indeed,
occur,
felony
against
for a
murder to
violence
violence, namely, death.
felony
in the ultimate form of
must result
that,
felony-murder
in the
requirement
for causation to exist
Our
context,
consequence
“probable
death must have been
Martin,
33,
conduct,”
supra,
As in the case of the Court’s an equivalence, of moral its reliance on mens rea as “touchstone” sharp past culpability moral is a break from the indicator of long of the murder statute. have not dictated the structure We among split murder verdicts between and allowed nonunanimous (e.g., purpose/knowledge, mental states intent to various kill/intent Moreover, bodily injury). definition to cause serious the statute’s equates mental of murder in N.J.S.A. 2C:11-3a all of the violent “murder,” legislative thereby undermining putative states as Consequently, the intent that the Court reads into the statute. impression engaging jurispru is unmistakable that the Court is statutory in order to this death dential and revisionism sustain sentence. “nearly-universal ... points hallmark[ ] also to the Court requirement of a unanimous verdict in criminal cases” and intermingling death-eligible murder with non-
asserts that “the
death-eligible
instructing
chaos when
murder would create utter
361,
jury.”
(quotations and citation
Ante at
In
nonunanimity
that the
instruction
unconstitutional,
would
Court,
“chao[tic]”
and somehow
again, completely ignores
nonunanimity jurisprudence,
our
states,
nonunanimity practice of other
and the United States
Supreme
explicit
Brown,
Court’s
validation of such verdicts.
In
511-18,
supra,
19, Mejia,
138 N.J. at
A.2d
141 N.J.
486-87,
A
explicitly required
662 .2d
we
intermingling
“the
death-eligible
murder,”
non-death-eligible
murder with
ante at
323, and, my
chaos,”
knowledge,
700 A.2d at
neither “utter
ibid.,
fact,
nor unconstitutional verdicts
In
have occurred.
*92
Mejia, supra,
specifically rejected
argument
we
that nonunan
imity in that context
principle
would violate the “bedrock
486,
unanimity....”
141
(quotations
N.J. at
Moreover,
notes,
as the Court
numerous other states allow
split
premeditated
nonunanimous murder verdicts
between
and
murder,
359,
felony
322;
Schad,
ante at
700 A.2d at
supra,
see
501
641-42,
(canvass
2502, 115
U.S. at
111
at
L.
S.Ct.
Ed.2d at 571-72
ing
verdicts),
states that allow such
including
nonunanimous
Kansas,
Washington
felony
death-eligi
and
where
is not
murder
ble,
1,
ante at 359 n.
The statute alternative methods of the deliberation and merely provides murder____ degree for a conviction of first A premeditation required prosecution changes under rule murder felony merely type proof necessary establish a violation of the statute. Proof that a homicide was in committed 440 and deliberation which a is tantamount felony premeditation
perpetration degree. in the first to constitute murder otherwise would necessary (1979), denied, cert. 449 [State McCowan, 1363, 1370-71 226 Kan. 602 P.2d 752, v. (1980).] 53 S.Ct. 66 L.Ed.2d 844, 101 127, U.S. approved has of murder Supreme Court Finally, the United States murder, Schad, felony premeditated and split between verdicts 2496-2504, 630-45, L. at 111 at 115 Ed.2d at S.Ct. 501 U.S. 648-52, 2505-07, at at (plurality opinion); 564-74 id. S.Ct. J., (Scalia, concurring part judgment), in in L.Ed.2d at 576-78 “not assuage fear that such verdicts are which should the Court’s 363, (quota- at 324 permitted under our Ante at A.2d law.” omitted). tions and citation felony-murder nonunanimity
Regarding the “utter chaos” that a
cause, resulting
any
allegedly
the “reversal of
instruction
would
363,
324,
conviction,”
felony-murder
ante at
700 A.2d at
murder
noted,
greatly exaggerated. As
numerous
the Court’s fears are
felony
split
murder
permit
states
nonunanimous verdicts
between
many years.
premeditated
and have done so for
See
Schad,
at
supra, 501
MURDER *93 We find the defendant the unanimously murder_ guilty of not murder_ guilty of (defendant L.G, knowingly, or or he the caused the death of caused purposely flight during of, commission of or commission or death of L.G. attempted committing attempting kidnapping after or commit crime of sexual and/or assault) go guilty, If is answer your AGGRAVATED MANSLAUGHTER on the next page. guilty following If is answer answer the your questions: ONE SELECT OF THE FOLLOWING: knowingly 1. findWe that the or unanimously defendant commit- purposely murder._ ted the during 2. find We the defendant the death unanimously caused of L.G. flight committing the commission of or commission of or after or attempted attempting kidnapping to commit crime sexual assault. and/or 2__ 3. We find both 1 and unanimously agree
4. areWe unable to 1, 2, either or but all 12 of unanimously 3, us _ find or 3 and at least 1 of us finds 2 not 1 but or 3. That entirely verdict sheet provides understandable and jury with a clear framework within which to work. It allows the jury, it has once reached a unanimous determination that “murder,” guilty defendant is to decide whether the murder was (1) (2) purposeful-or-knowing murder, felony murder but not (3) felony purposeful-or-knowing murder, murder but not both (4) murder, purposeful-or-knowing felony murder and one or other, Thus, but not implement both. can our description consistent defining gener- of murder statute as (i.e., al crime of “murder” aby triggering followed mechanism rea) mens to determine death-eligibility.
Moreover, the fact that a purposeful-or- can convict of both knowing felony they murder and mutually murder because are not Although exclusive is of no moment. accomplice-liability murder exclusive, principal-liability mutually may murder neither intent-to-kill serious-bodily-injury murder and pur- murder nor poseful knowing mutually murder are exclusive. If kill, one intends then she also bodily intends to cause serious injury, if killing, purpose one has the she then also possesses knowledge completes that death will result if she purpose. her may overlap That two forms of murder has not been dispositive nonunanimity jurisprudence. Instead, in our we have (i.e., “legal focused on the death-eligibility difference effect” *94 thereof) determining whether the different theories or lack of required. is nonunanimity instruction juries to ability guide trial to inform and Despite of courts regard possibility reaching nonunanimous verdict of about juries must reach ing death-eligibility, the Court determines produce to a valid unanimity theory of in order on each murder with the Court’s erroneous murder When combined conviction. juries acquit holding require to to convict or permissible that it is felony mur purposeful-or-knowing prior considering murder of 363-370, 324-327, der, unanimity require ante 700 A.2d at jurors, that a may holdout who believe defendant ment cause necessarily purposeful-or- guilty of of murder but not some sort murder, knowing majority pressure in to and to convict of to cave convicting than risk purposeful-or-knowing rather any form murder. nonunanimity rejection of the instruction is incon-
The Court’s statute, jurisprudence, capital princi- sistent with the murder our many process, practice due and the other ples of fairness and of the ultimate-outcome states. Similar to the Court’s treatment presentation forms of instruction and simultaneous two murder, analysis support claim have its and dismissal of this no logic precedent. either
II guilt-phase death-eligibility Although process was defendant’s flawed, itself, by fundamentally death-eligibility, does not deter- sentenced death. A mine whether a defendant will be death-eligibility a fair defendant who is denied determination persuade penalty-phase jury that opportunity has still however, case, egregious In spared. his life should this an mutually aggrava- in submitting error trial court exclusive jury, prosecutorial encouraging ting factors to the misconduct in error, of a compounding and the accidental submission gruesome photograph jury, inject a autopsy to the combined to penalty degree irrationality phase into the arbitrariness no court should tolerate. Paralleling its treatment of the case, however, Court, guilt-phase issues in this conceding after occurred, employs analysis that errors an that falls far short of *95 supporting its that conclusion those were errors harmless. I beyond believe that the were errors a harmless reasonable that, individually doubt and cumulatively, they require that defendant’s death sentence be vacated.
A. The submission of the depravity escape-detection both (in aggravating factor, factors addition to felony-murder the whose conceded) essentially jury existence defendant to the was one of the most contentious issues this prosecution. As the notes, 381, 333, Court occasions, ante at 700 A.2d at on numerous depravity defendant moved to dismiss the factor because the finding of lack required of motive to it support was inconsistent the required escape-detection definite motive to find the factor. part Defendant’s motions created on confusion the of the prosecutor trial court and induced the a telling to make number of statements that knowledge impermissibil demonstrated her of the ity of the submission of both factors.
The trial
position
throughout
court’s
proceed
consistent
the
ings, namely,
(i.e.,
that
escape
the
could find motive
to
detection)
(i.e., depravity)
or lack thereof
but could not find both.
The court based
that
its belief
the two
could be
factors
submitted
jury,
the
despite
mutual
exclusivity,
misreading
their
of the
Moore,
precise wording
holding
of our
in State v.
122 N.J.
(1991),
Although the trial court’s unfortunate error stemmed from a misreading precedents, prosecutor’s of our “errors” were not benign. initially expressed agreement so She with the trial court mutually exclusive, that the two subsequently factors were but she changed position, stating her proven that “Pm I not sure haven’t child, both. There is no for killing reason of this none. That’s to. he didn’t did he wanted And depravity. He it because trial, they get caught. I are both here.” After want to think charging aggravating both clarified her rationale prosecutor factors: aggravating factors. are exclusive Samuel Moore that those Now, says mutually I to the rule. would submit But I that this is the you exception would submit gives though in this ease direction, us that Court even
you Supreme give rare case it was fun because this is the where have to us opportunity, they get fun was to with it. away part court, encouragement prosecutor, After trial with the factors, Supreme complete contravention “the submitted both direction,” it could court instructed the Court[’s] ... factors, they mutually The were exclusive. not find both because reject factors. that it could both court never instructed the exclusivity, told commenting on the mutual prosecutor, after in summation: ... talks [of] mind, which really He either did it because involved depravity meaningless, from the senseless, about from view, totally point society’s point *96 getting ... to of view killed her. And in the from alternative, of society, keep caught____ I the hard, will to decide it’s not between think, And be able and you the other two. are an alternative. One is an absence motive and basically They is motive. remaining also “The is which of the other question She stated: [i.e., felony-murder aggravating factor] two factors other than the here,” [i.e., you pick escape-detection one either and “so have Again, depravity].” prosecutor the court nor neither the qualified by telling jury that had a third those statements the it alternative, rejection namely, of both factors. deliberations, jury unanimously penalty-phase
After the re- its unanimously jected depravity and found the existence factor weighing In felony-murder escape-detection factors. evidence, against mitigating aggravating factors factors, combined, outweighed explicitly found that two when Thus, that, they mitigating individually, did not.4 evidence but 4 aggravating The about how of the verdict sheet's explicit many question outweigh mitigating found factors is factors that the were necessary
445 only aggravating with both factors did the State obtain a death sentence. correctly
The Court
holds that
the trial court committed a
blatant and serious error when it submitted
depravity
both the
escape-detection
383,
jury.
factors to
Ante
at
A.2d
334.
held
We have
on numerous occasions that the lack-of-motive
component
depravity
may
along
factor
not be submitted
requires
finding
a factor that
Coyle, supra,
motive.
233-35,
951;
Rose,
454,
N.J. at
529-33,
574 A.2d
State v.
112 N.J.
(1988). Moreover,
548A.2d
notes,
specifical
as the Court
we
ly
applied
principle
have
depravity/escape-deteetion
to the
Moore,
context. S.
Despite holding the Court’s correct that the trial court commit- error, ted harmless, nevertheless classifies the as glossing error context, over the omitting error’s factual prosecutor’s much of the conduct, outrageous ignoring important several cases point finding prejudice. toward a Christener,
In
(1976),
State v.
71 N.J.
446 erroneously rejection the submit resulting jury’s the of from
ness
prejudicial because “the
held that the error was
ted offense. We
jury,
of sufficient evidence to
possibility that the
in the absence
charge, may
a compro
have reached
degree
sustain a first
may
preju
have
suggests
suffered
[defendant]
mise verdict
manslaughter
spite of
conviction.”
by that
in
his
dice
instruction
69-70,
Id.
In
v.
clarified Christener
State
holding in
Christener does
not stand
the
that reversal
is
[o]ur
proposition
jury
judge charges
a
a
a crime for which there
be
mandated
time
about
every
may
Christener
entire
of
a conviction. The
discussion
support
insufficient evidence
“overcharging,”
instructing
jury
prejudicial
the
on the
of
centered
effect
In
case,
crime more serious than is warranted
evidence.
this
mistaken
charge
overcharge.
it
alternate
of
Rather,
was not an
related to
theories
establish-
offense____
ing
same
(1978).]
[76
Since Christener its clarification plied analysis overcharging aggra of Christener in the context of DiFrisco, 502, 645 vating factors. In State v. 137 N.J. A.2d — (DiFrisco (1994) II), denied, -,U.S. 116 cert. S.Ct. (1996), L. held we erroneous submis Ed.2d escape-detection sion of the factor was harmless because rejected factor had that the factor alone had found other outweighed mitigating distinguished evidence. We Christener by reasoning prejudice that the to the defendant in that case had grown mutually out exclusive nature murder man words, slaughter. In other had Ibid. because Christener mutually manslaughter to consider the exclusive murder and another, it charges conjunction likely with one was more compromise manslaughter might reach verdict where hand, charges. acquitted all On the other we otherwise have that, non-mutually- reasoned when confronted two factors, aggravating it must indepen exclusive consider each one dently speculative it would other. We concluded that *98 jury’s assume that the independent aggrava consideration of one (via ting compromise) factor its consideration affected of other independent factor. Ibid. Rose, supra,
In previously we had noted the distinction between independent mutually and exclusive aggravating in the factors Christener context: first-degree manslaugh- Unlike the exclusive choices between mutually murder and jury’s
ter ...
function
aof
case is first to
penalty phase
assess,
of
aggravating
each
other,
of the
independently
sufficiency
and
proof
mitigating
rejection
factors.
Its
one such
neither
nor
its
compels
inhibits
factor
determination that another
exists.
factor
added).]
(emphasis
[112
N.J. at
In aggravating the context of an evaluation of Christen- er prejudice entails consideration of which factors were submitted potential and the example, felony- confusion. For if the properly is murder factor but submitted the murder-for-hire fac- submitted, tor improperly expected can be to consider each said, without reference to the other. The same cannot however, aggravating inextricably factors that are linked to one another, recognized. as both DiFrisco II and Rose case, depravity
In this escape-detection factors were mutually exclusive, thereby triggering Christener concerns. The jury had jointly, to consider the two factors and its deliberations necessarily other; one affected its deliberations on the if it existed, found that one reject jury easily had to the other. The relationship the two about the between have been confused could may have may that it had to choose one have believed *99 by choosing one. compromised into prejudice vision of was translated
That rather abstract prosecu- reality by especially trial the the actions of the court factors, jury pick that it could not both Both stressed to the tor. reject it they explicitly it that could both. The never informed but believed, consciously subconsciously, that it jury may thus have jury compromise danger two. The of pick one of the needed to strength- quite inaccurate statements prosecutor’s real. The was subtle, clear, pick jury to message “ha[d] that the ened but (“He did it Supra A.2d at either it because one.” 328. alternative, mind, ... in the ... depravity [a]nd [of] involved easily keep getting caught ”). jury could have to from — remarks, unclari- interpreted those which went uncorrected and other; court, pick to one or the fied the trial as instructions motive, all, have had a or he did not a after either defendant motive. felony- acceptance of jury’s
Nor uncontroversial does noted, finding prejudice. As murder factor obviate a of (felony-murder explicitly aggravating two factors found that the outweighed only mitigating evidence escape-detection) Thus, that, they individually, not. had did when combined factor, only felony-murder not have jury found would imposed death. prejudiced by was further the erroneous submission
Defendant argue resulting inability against to one of the because of his mutually implicitly arguing in favor factors without exclusive present example, argue depravity to was not the other. For motive, necessarily implied had which the that defendant reasonably interpreted as a concession of the existence could have escape-detection Conversely, argument an factor. detection, escape failing motive while defendant’s was motive, as a concession of present another could have been viewed ie., motive, depravity. submission of the lack of The erroneous depravity effectively placed factor thus defendant a catch-22 his efforts to confront either of the two factors.
Defense counsel’s penalty-phase summation that di- reflected by urging reject lemma factors both because it was Jurors, however, unclear whether or not defendant had a motive. reasonably could have discerned argument from that subtle that, implication although it was unclear which the two factors present, present one the two had to be because defendant killed either for a reason or for no reason —there could be no in- By between. precluding strenuously arguing counsel from against factors, either placed the erroneous submission him in the position implying untenable to the that one of the two had present. to be The State should not be able to abuse its discretion charging aggravating by placing factors defense counsel in such precarious posture. and untenable court, We thus are faced awith situation in which the trial over *100 repeated objections, defendant’s strenuous and erroneously sub- error, itself, mitted an aggravating jury. by factor to the That support finding prejudice could a mutually because of the depravity exclusive nature of the escape-detection factors. greatly The error then was prosecutor exacerbated when the inaccurately jury it pick told the that had or to one the other and precluded when defense effectively advocating counsel from against jury’s explicit either one. The statement on the verdict sheet that it would not have sentenced defendant to it death had rejected proof prejudice may both factors is that defendant have suffered as a result. That course of events constitutes reversible error. classifying
In the engages error as harmless the Court the cursory analysis, reasoning “rejection most by that the because jury aggravating the compel one ... factor does or not inhibit existed,” its determination that another factor “highly it would be speculative” to that prejudiced. conclude defendant was at Ante 384, 700 at A.2d 334. The Court then undermines its own argument by stressing the trial jury court’s instruction to the that 384, factor, Ante at reject it had to the other.
if it found one however, miss, to that the appears the Court A.2d at 335. What mutually the exclu the that two were instruction to factors factor certainly its that another “inhibit[ed] sive determination and, prosecutor’s existed,” given A.2d the ante at remarks, may ... de “compelDed] have its repeated, inaccurate existed,” One need not that factor ibid. termination another ibid., “speculat[e],” draw that inference. to claim, the heart of this does the confront Nowhere Court overcharging its circumstances namely, that the attendant believed, either possibility a reasonable created that, subconsciously, it consciously or while could not choose both one,” factors, a given that defendant either had “ha[d] it choose lip much pay did not a motive. Nor does it so as motive or have claim, from potential circumstances of this service to penal- prosecutor’s improper paradoxical remarks to counsel’s ty-phase jury’s explicit findings,, prejudice had to summation to the defendant.
I the circumstances here make certain do assert that likely even that the was induced the cumulative errors That, however, escape-detection is not the stan- find the factor. Instead, possibility dard. measure is whether reasonable errors, that, multiple juror one would not have existed absent the measure, By one found the factor. must conclude that fatally generated prejudicial error result.
B. deliberations, Eight penalty into sent a note hours court, jurors use asking photo trial if could exhibits of determining aggravating purpose L.G. for the “sole whether *101 outweigh mitigating from note the factors.” Evident the factors jury already the existence of the was that the had evaluated aggravating mitigating and that it to the and factors wanted view subjective balancing portion the photos during penalty of the instruction, court, cautionary phase. giving The trial after photos during balancing jury process. use the its allowed the to later, Fifty minutes to after defense counsel claims have heard room, coming “raised jury jury voices” from the the returned a verdict, S-158, death sentence. After the Exhibit or crotch “the picture,” it, prosecutor eloquently as the so termed was discovered room; that, in the photo graphic prior that so was to the it, penalty phase, agreed agreed the State had to exclude itas had all highly graphic to exclude of the photos.
I concur the holding Court’s the accidental submission was “deprived opportunity error because it of defendant an evidence,” confront ante at at 700 A.2d but I strongly disagree analysis alleged with its of two-sentence the deprivation. finding harmlessness the The its Court bases harmlessness on during guilt phase, S-158’s admission the defen resulting opportunity photo guilt dant’s during confront the the phase, cautionary the trial court’s instruction about the use the photos, rejection Yet, depravity the factor. Ibid. although may those considerations a degree have reduced to suffered, prejudice they that defendant did render the error beyond harmless a reasonable doubt.
It important to consider the context of the accidental submis- prejudicial sion in order impact. to assess its use during guilt photos phase very was different from use their during process. penalty-phase balancing guilt In phase, photos solely viewed the to determine the factual issues relating guilt guilt-phase viewing defendant’s innocence. Its moreover, photos, substantially prior had occurred to its penalty penalty-phase balancing process, by deliberations. In the contrast, stages highly was in the final aof sensitive and subjective clearly determination of blameworthiness could easily swayed by gruesome photo. influenced such a jury’s We know that penalty determination one. close First, noted, as I have only determined that the combined aggravating outweighed mitigating factors defendant’s evidence that, 371-372, individually, they Supra did not. A.2d at Second, post-trial hearing examining 328-329. we from know *102 employment at the propriety of Juror Maria Hollenback’s the Office, juror’s the had County that one of Monmouth Prosecutors agree death sentence. been reluctant to to a jury’s photo, can know the use of the we Given what we about readily in which plausible a situation defendant envision jury already had by its The prejudiced accidental submission. and, eight viewing photo, from before the deliberated hours note, jury’s already it which we had determined the know mitigating began it to use aggravating and factors existed. When therefore, critical, already subjective photos, in the the it was juror balancing process. Hollenback’s statement that one Given death, sentencing to the had been reluctant about defendant pro-death jurors photos may graphic have desired to use eleven S-158) inadvertently to the (including the submitted convince the holdout to After trial court that defendant deserved die. affirmatively jury’s it responded question to the about whether photographs purpose could the of the victim for the sole “review miti- determining aggravating outweigh factors the whether the factors,” jurors gating pro-death may the have used S-158 to jury’s convince holdout that he or she switch. The should not aggravating determination that individual factors did outweigh mitigating may ver- evidence reflect tentative dict. sufficiently plausible, con- possible
That set of circumstances sidering that we the unusual amount information have about jury’s balancing process, preclude finding a the accidental doubt. Had the submission was harmless reasonable beyond submitted, photo have been not been would left with (as autopsy photos particularly graphic number that were exhibit, therefore, per parties’ stipulation). Without may pro-death jurors persuade potential not have been able to switch, juror life resulting holdout thus in a sentence. highly inflammatory; graphic display of L.G.’s exhibit was its just bloody enough spread legs genitalia, may have been provide push possibility that late a death sentence. That toward is sufficient to cast a reasonable doubt harmlessness error.
The on opportunity Court’s reliance defendant’s to confront the photo does not rescue this death sentence. That counsel did not photos during guilt phase confront the the is irrelevant because of guilt the penalty phases difference between the and and because anything except during defendant did not contest for intent the guilt phase. Regarding penalty phase, given the stipulation the graphic photos go jury, that no may would to the defense counsel Although have made deliberate choice not to confront them. argued could during that counsel’s failure them to confront the penalty phase dispositive because of the trial court’s erroneous jury’s guilt-phase failure to limit the consideration evidence during penalty (i.e., phase the counsel should have known that the rely jury photos regardless could its recollection of their physical during phase), may submission penalty counsel have that, given made the reasonable determination the time interval jury’s photos during guilt between the use of phase and deliberations, penalty jurors it would be unwise to remind photos. the graphic Had counsel been aware that S-158 would be however, jury, submitted to the very may he well have determined that it prejudicial impact during would be advisable to defuse its penalty-phase his summation. event, any guess
In presumptuous we should not be so as to strategy what defense counsel’s would have been had he known inflammatory that the exhibit would be in the room. The fact thereby any remains that he did not know and was denied opportunity penalty phase. to confront it in the context of the repeatedly
We
recognized
have
the differences between the
guilt
penalty phases
greater
and
in terms of the
care that
trial
during
courts
ensuring
highly
must take
the latter in
prejudi
cial
jury’s
penalty
evidence does
infect the
sensitive
determi
Dixon,
249,
(1991);
nation.
v.
State
125 N.J.
know subjective portion and sensitive of the during viewed the most Moreover, namely, balancing process. we penalty phase, a close As one penalty determination was one. know has court stated: court iron curtain Modern trials are before the day factually presented open prejudicial intrusion into descends room. We cannot tolerate factual upon jurisprudential return to of our history.
that sanctum lest our courts darker days dagger must taken from its for the first of hidden evidence not be scabbard piercing time in the to wound the unless its effect is defendant; only room prejudice to must trial, skin and without we deep anatomy apply constitutional salve. (5th Cir.1975).] [United Howard, v. 506 F.2d States “factually piece revolting powerful This of evidence was not court,” having its presented open instead been “taken from time in room.” it had the scabbard the first Because potential precarious to affect the which reasonable balance *104 hung, “apply I would a constitutional salve” and defendant’s life vacate defendant’s death sentence.
III prime example This case a of the severe constitutional is infirmities of in plague punishment that administration errors, Through trial prosecutor’s this State. court’s misconduct, it and this Court’s refusal to view the trial for what proceeding profoundly lacking pro- was —a in fairness and due cess—defendant has been condemned to die. violence, subject namely,
If are ultimate we individuals to the then, people, in taking of life name of the at the deliberate least, very require adequate safeguards place we should arbitrary to ensure is in an manner. that that violence not inflicted case, however, legitimates In this the Court dismisses and even phases Ranking in both of the trial. substantial arbitrariness with right injustice of death Court’s failure to defendant’s grave progress harm that inflicts on the that we sentence years rooting made fifteen have over the last out arbitrariness capital punishment Jersey. in the in New administration The arbitrariness of death apparent this sentence becomes when infecting the errors defendant’s conviction and sentence are entirety. death-eligible by viewed in their Defendant was found consequences that was unaware of accepting his non- death-eligible theory of the case encouraged was to reach unanimity death-eligible theory on the State’s of the case before thinking theory. even about death-eligi- defendant’s Once found ble, told, penalty jury implicitly defendant’s explicit- was both ly, aggravating it had to one of choose two alternative factors. it potentially choosing After was into aggravating induced more factors than it would proper presentation have chosen factors, jury’s aggravating balancing process, including a juror, probable holdout infected the unconfronted submis- highly inflammatory photo. sion of a every stage capital prosecution At of this determination of —the factors,
death-eligibility, aggravating the evaluation of and the balancing aggravating mitigating questions factors —the Yet, every stage, something were close. occurred ensure stage. proceed ugly that defendant would to the next However facts of this case are and much the however victim suffered at hands, constitutionally defendant’s defendant was entitled to a fair trial. That he did not receive.
I dissent. POLLOCK, J., joins opinion. in Part I this J., O’HERN, joins I opinion. in Parts and IIA of this STEIN, J., concurring result. *105 PORITZ, For Justice and Justices affirmance —Chief
GARIBALDI, STEIN and COLEMAN —4. HANDLER, For reversal —Justices POLLOCK and O’HERN —3.