State v. Oglesby , 122 N.J. 522 ( 1991 )

The opinion of the Court was delivered by

POLLOCK, J.

Defendant, Walter Oglesby, was convicted of capital murder and sentenced to death. He appeals as of right. R. 2:2-l(a)(3). At trial, defendant did not dispute that he had killed the victim. Instead he relied on the affirmative defense of insanity. N.J. S.A. 2C:4-1. In its jury instructions, the court charged not only on that defense, but also on diminished capacity. N.J.S.A. 2C:4-2. The charge, however, placed on defendant the burden of establishing by a preponderance of the evidence that he suffered from a mental disease or defect at the time of the homicide. This instruction impermissibly relieved the State of part of its burden of proving that the homicide was knowing or purposeful. Because of that error, defendant’s conviction must be reversed.

-I-

Although the State acknowledges that the diminished-capacity charge was erroneous, it claims that the error was harmless because the defendant did not establish his claim of diminished capacity by sufficient evidence to justify such a charge. Our factual recitation, therefore, focuses on the evidence relevant to Oglesby’s mental state at the time of the homicide.

Oglesby sustained brain injuries in an automobile accident when he was sixteen. As a result of that accident, he was unconscious for three days and hospitalized for over a month. From that time, according to his family, he was violent, self-destructive, and suffered from hallucinations.

At trial, his sister recalled an incident in 1979, after the auto accident, when Oglesby took her son for a walk, disappeared for seven or eight hours, and returned in a confused state, claiming that he had talked to Jesus and Mary. His brother and sisters testified that he had been hospitalized several times for mental illness in the 1970s and 80s.

Their testimony tended to establish the following additional facts concerning Oglesby’s mental state. In 1981, he was struck by a truck, necessitating the amputation of one of his legs. With part of the settlement proceeds, he purchased a new Lincoln. Soon, however, he said he could not ride in the car because it was inhabited by a phantom named “Boyaz.” Fearful of Boyaz, Oglesby gave the car to his brother and purchased another new Lincoln for himself. Over the years, down to the time of the homicide, Boyaz frequently appeared to defendant and instructed him on the mysteries of death.

Oglesby also engaged in other forms of bizarre conduct. In 1983, in a possible suicide attempt, he drove his car over a cliff, and told investigating police that he had been “going home to God.” On other occasions, while visiting his sister, who owned no farm animals, he would sit, stare, and describe non-existent cows in her backyard. He insisted that she owned “the biggest cows” and, when she asked him to describe them, stated that they had “lots of legs.”

In 1983, Oglesby’s family committed him to the Georgia Mental Health Institution for five days. Although Oglesby did not stay at the hospital long enough for a final diagnosis, the tentative diagnosis was schizophreniform disorder, a short-term form of schizophrenia.

On the critical issue of defendant’s sanity, the defense and prosecution psychiatrists differed sharply. The State psychiatrist, Dr. Weiss, testified that defendant was competent to stand trial, a conclusion that was accepted by the trial court, and that Oglesby was sane at least when Dr. Weiss examined him. He suggested defendant’s mental problems, if any, were temporary arid episodic. Defendant’s psychiatrist, Dr. Rush-ton, disagreed. He testified both that defendant was incompetent to stand trial and that for fifteen years he had been a paranoid schizophrenic. In Dr. Rushton’s opinion, Oglesby could not distinguish right from wrong at the time of the murder and was legally insane at the time of trial.

Defendant’s mental and emotional deterioration throughout the early 1980s was reflected in his stormy relationship with the victim, Muriel Russell. During that relationship, which lasted for approximately eight years, Russell gave birth to their son. In 1982, Oglesby moved to Georgia, and in 1983 convinced Russell to join him. In 1984, she left him three times to return to New Jersey. The first two times Oglesby convinced her to return to Georgia. Russell left the third and final time in August 1984. A few days later, Oglesby followed Russell to New Jersey, where he joined her.

On September 27, 1984, they checked into the Hillside Motor Lodge in Cherry Hill, to which they returned on the night of September 28. The following morning a housekeeper discovered Russell’s corpse. Russell had been hacked and stabbed to death. Oglesby was gone. Police investigation revealed that Oglesby registered at a motel in College Park, Maryland at 12:30 a.m. on September 30.

The Camden police arrested defendant outside his mother’s home on October 1, 1984. He claimed that he was innocent and that he had just returned from Europe.

In 1984, a Camden County grand jury indicted Oglesby for capital murder, N.J.S.A. 2C:ll-3a(l) or -3a(2); possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4d; possession of weapons under circumstances not manifestly appropriate, N.J.S.A. 2C:39-5d; and two counts of hindering apprehension, N.J.S.A. 2C:29-3b(l). The jury convicted defendant on all counts.

In the penalty phase, the jury found one aggravating factor, that the murder was outrageously or wantonly vile, horrible, or inhuman, N.J.S.A. 2C:ll-3c(4)(e) (“aggravating factor c(4)(c)”), and two mitigating factors, that the defendant had no significant history of prior criminal activity, N.J.S.A. 2C:ll-3e(5)(g), and that defendant had been under the influence of extreme mental or emotional disturbance, N.J.S.A. 2C:ll-3c(5)(e). The jury further found that the aggravating factor outweighed the mitigating factors beyond a reasonable doubt, thereby finding that death was the appropriate penalty.

-II-

At the conclusion of the guilt phase, the court’s charge included instructions on the issue of defendant’s diminished capacity. Parts of the charge properly placed on the State the burden of proving each element of the offense beyond a reasonable doubt. The diminished-capacity part, however, improperly required defendant to prove a mental disease or defect by a preponderance of the evidence. As we have now instructed trial courts, the State always bears the burden of proving beyond a reasonable doubt the culpable mental state, and the defendant need not prove by a preponderance of the evidence the alleged mental disease or defect. State v. Moore, 122 N.J. 420, 425-27, 585 A.2d 864, 866-67 (1991).

In Moore, we reviewed the issue of diminished capacity. We would serve no useful purpose by again reviewing it here. Neither need we revisit the history of mental states as outlined in State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987). In Moore, we described our attempt in Breakiron to construe N.J.S.A. 2C:4-2, which defines diminished capacity, to accommodate due-process concerns; the Third Circuit’s conclusion that the statute was beyond salvation, Humanik v. Beyer, 871 F.2d 432, 442-43 (1989); the Chief Justice’s directive to the trial courts to follow Humanik, see 124 N.J.L.J. 1562 (Dec. 28, 1989) (summarizing the directive); and the 1990 statutory amendment removing the preponderance-of-the-evidence burden from defendants, L. 1990, c. 63. See Moore, supra, 122 N.J. at 431-34, 585 A.2d at 869-71.

In this tragic case, we do not break any new ground. The outcome is controlled by the now-settled principle that if there is any evidence that defendant suffered from a mental disease or defect that might affect his ability to form an intent to kill, the State must prove beyond a reasonable doubt that such disease or defect did not prevent defendant from acting with the requisite mental state. See N.J.S.A. 2C:l-13a.

At the time of the trial, N.J.S.A. 20:4-2, the statute pertaining to the “defense” of diminished capacity, provided:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

In its charge, the court began by explaining the State’s general burden to prove defendant’s guilt beyond a reasonable doubt:

This defendant, as are all defendants in criminal cases, is presumed to be innocent until proven guilty beyond a reasonable doubt. * * * The burden of proof is on the State and it never shifts, it remains on the State throughout the entire trial of the case. No burden with respect to proof is imposed on the defendant, he is not obliged to prove his innocence. Unless the State proves the crimes charged beyond a reasonable doubt, the defendant is assumed to be innocent and is entitled to be acquitted.

The part of the charge specifically concerned with defendant’s mental state contradicted that general explanation by placing on defendant the burden of proving his diminished capacity:

Now, apart from his general denial of guilt, the defendant maintains that he is not guilty because of the existence of a mental disease or defect which precluded him from forming the requisite mental state of acting with purpose or purposely. * * *

********

Mental disease or defect is an affirmative defense, and the burden of proving by a preponderance of the evidence is upon the defendant who asserts that defense. * * *

If you find the State has proved all the elements of each of the crimes and the defendant’s participation in those crimes beyond a reasonable [doubt] and if you also find that the defendant had established the affirmative defense of mental disease or defect by a preponderance of the credible evidence, your verdict would be not guilty. If on the other hand, you find that the State has proved beyond a reasonable doubt all of the essential elements of each of the crimes and the defendant’s participation in those crimes and you also find that the State has disproved beyond a reasonable doubt this defense of mental disease or defect, then you must find the defendant guilty.

Taken together, these two portions of the instructions could have misled the jury to believing that defendant had the burden of proving his diminished capacity. Although the instructions began correctly by placing on the State the burden of proving beyond a reasonable doubt each element of the offense, including defendant’s mental state, the diminished-capacity instruction relieved the State of part of that burden by requiring defendant to prove a mental disease or defect by a preponderance of the evidence. The jury could have found that the evidence raised a reasonable doubt whether Oglesby had the requisite mental state at the time of the homicide, but that defendant was guilty because he had not proved the existence of a mental disease or defect by a preponderance of the evidence. That possibility requires the reversal of Oglesby’s conviction. As we recently stated, “[cjontradictory and inconsistent charges are inherently inadequate as they ‘create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner____’” Moore, supra, 122 N.J. at 433, 585 A.2d at 870 (quoting Humanik, supra, 871 A.2d at 442 (quoting Francis v. Franklin, 471 U.S. 307, 323 n. 8, 105 S.Ct. 1965, 1976 n. 8, 85 L.Ed.2d 344, 359 n. 8 (1985))).

The State recognizes that the charge was flawed, but now argues that the error was harmless for two reasons. First, the State contends the challenged instructions did not have the capacity to prevent the jury from considering relevant evidence on the issue of defendant’s mental state. Essentially, the State is arguing that the defects in the instruction were not so substantial as to have affected the jury’s verdict. We disagree.

As the preceding discussion reveals, the charge was defective because it could have confused the jurors about the State’s burden of proving beyond a reasonable doubt that defendant acted knowingly or purposefully. A defect on so critical a point clearly had the capacity of producing an unjust result. See R. 2:10-2.

Second, the State argues that even if the instruction had been correct, there was insufficient evidence of a mental disease or defect for a jury to have a reasonable doubt that defendant had the requisite mental state for knowing or purposeful murder. Again, we disagree.

Our review of the record in the present case leads us to conclude that the evidence of diminished capacity was sufficient to require a charge on diminished capacity. When, as here, defendant did not request an instruction on diminished capacity, the test is whether the facts clearly indicate that a diminished-capacity charge is appropriate. State v. Pitts, 116 N.J. 580, 607-10, 562 A.2d 1320 (1989); State v. Choice, 98 N.J. 295, 299, 486 A.2d 833 (1985). Our review, consistent with the decision of the trial court, satisfies us that the evidence meets that test.

Much of the evidence at trial tended to prove that defendant suffered from a diminished capacity within the meaning of N.J.S.A. 2C:4-2. A jury could have found that from the time defendant suffered brain injury at the age of sixteen, his life was a chronicle of mental illness. Defendant’s history reveals that he was institutionalized numerous times, suffered from hallucinations, sustained serious bodily injuries in two motor vehicle accidents — one a head injury and one resulting in the amputation of one of his legs — and was diagnosed as suffering from a form of schizophrenia.

Other evidence also supports the conclusion that on the night of the homicide, Oglesby, even if sane, was suffering from a mental disease or defect. In the weeks before Russell’s death, Oglesby destroyed the apartment that he shared with her, talked with Boyaz, and according to his brother and sister, otherwise acted “spacy.” Shortly before Oglesby left Georgia in August, defendant’s sister became so concerned about his behavior that she obtained a peace warrant for his own protection. His father, however, raised sufficient bail for defendant’s release.

Defendant’s conduct on the evening of September 28 was ambivalent. At Church’s Chicken restaurant, where defendant and Muriel went to eat, a counter clerk recalls that Oglesby was “just a little bit mad because he couldn’t figure out what he wanted.” The operator of a tow truck, whom Muriel called on the restaurant’s telephone when defendant's car became stuck in mud, recounted a dispute with defendant over the payment for towing defendant’s truck.

When examining defendant after the homicide, Dr. Rushton injected him with sodium amytal, a drug that the doctor explained helps remove “an emotional block” to memory. In that examination, Oglesby related that the murder victim had attacked him and that “she walked into the fire.” Such evidence of defendant’s mental disease or defect, in conjunction with Oglesby’s history of mental illness and Dr. Rushton’s testimony that Oglesby “has been insane for about 15 years according to the history,” clearly justified a charge on diminished capacity.

We conclude that the trial court did not err by delivering on its own motion a charge on diminished capacity. The charge, however, was defective and had the capacity to produce an unjust result. Consequently, it constituted plain error. R. 2:10-2. As we have previously stated, “erroneous instructions on material issues are presumed to be reversible error, excusable only if they are harmless beyond a reasonable doubt.” State v. Crisantos (Arriagas), 102 N.J. 265, 273, 508 A.2d 167 (1986). That presumption is particularly appropriate when, as in this case, defendant’s mental state was the critical issue at trial.

-III-

Even in the absence of a defective diminished-capacity charge, we would be compelled to vacate the imposition of the death sentence. The reason is that the charge concerning aggravating factor e(4)(c), the sole basis for the imposition of the death penalty, was constitutionally deficient. That conclusion follows from the failure of the charge to comply with our subsequent decision in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987). See also State v. McDougald, 120 N.J. 523, 566, 577 A.2d 419 (1990) (listing cases that have applied our holding in Ramseur concerning c(4)(c)). In Ramseur, we narrowed the meaning of aggravating factor c(4)(c) to remedy a constitutional defect in its statutory definition.

As we stated in Ramseur, without a narrowing construction, section c(4)(c) does “not pass constitutional muster * * 106 N.J. at 200, 524 A.2d 188. For this reason, we advised trial courts not to quote the statutory language in their jury instructions. Id. at 211, 524 A.2d 188. Finding that “the essence of the legislative concern [in section c(4)(c)] is the defendant’s state of mind,” id. at 207, 524 A.2d 188, we explained that either of two states of mind was necessary to establish, the factor: (1) the intent to “cause extreme physical or mental suffering,” when the defendant’s conduct causes extreme suffering by the victim, id. at 208, 524 A.2d 188; or (2) the intent to kill for “no purpose * * * beyond [the defendant’s] pleasure of killing,” id. at 211, 524 A.2d 188. Without such a limiting instruction, section c(4)(c) “permits juries to find the existence of the aggravating factor in an arbitrary and capricious manner, and therefore fails to assure the ‘channeling’ of the jury’s discretion required by [the United States Supreme Court] * * Id. at 197, 524 A.2d 188.

Section c(4)(c) provides in relevant part:

(4) The aggravating factors which may be found by the jury or the court are:

(c) The murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim.

Virtually tracking the statute, the court charged:

The State has alleged that the following aggravating factor is present in this case, and that is, “That the murder of Muriel Russell was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.”

Insofar as the aggravating factor which I have mentioned, although every murder may be viewed as vile, horrible or inhuman, this does not mean that there is an automatic aggravating factor in every case of murder. What is necessary is that the State prove the attack by the defendant, Mr. Oglesby, on the victim, Muriel Russell, involved either torture or conduct indicating a depraved mind or that the attack was so savagely brutal or outrageously cruel and violent that the adjectives wantonly vile or horrible or inhuman are justified.

The instructions, which did not comply with any of Ramseur’s requirements, thus provide an independent ground for vacating Oglesby’s death sentence.

-IV-

Because we reverse Oglesby’s conviction and sentence for the reasons given in Parts II and III, we do not discuss his claim of insufficiency of counsel. Nor do we discuss his other claims of error, none of which was raised at trial. We limit our discussion to those issues on which further guidance might be helpful on retrial.

A. GUILT PHASE

1. Defendant’s Right to Remain Silent and Right to Counsel

Defendant' argues that the prosecutor unconstitutionally penalized him for exercising his right to counsel and his right to remain silent by repeatedly referring to defendant’s silence as evidence of his sanity. On the State’s case, the prosecutor elicited testimony from the arresting and investigating police officers that after they had administered Miranda warnings, defendant invoked his right to counsel on several occasions. During cross-examination of Oglesby’s psychiatrist, moreover, the prosecutor asked whether Oglesby’s invocation of that right demonstrated defendant’s sanity. Again, during his summation, the prosecutor argued that Oglesby’s silence evidenced his sanity. For instance, at one point, the prosecutor argued:

Can there be any better example of [the defendant’s] rationality and state of mind, of his appreciating right from wrong, that when he gets to the crucial issue, .* * * that is when he said, “I know I have rights because I gave them up and I know I have rights because I take them back at this time.

We don’t offer that to you in any way to comment upon whether or not that is an improper thing to do. * * * It’s only offered to you to show his state of mind, his ability to choose intelligently and exercise those rights.

In Wainwright v. Greenfield, the United States Supreme Court held that under the fourteenth amendment of the United States Constitution it is “fundamentally unfair for [a] prosecutor to [use defendant’s] post-arrest, post-Miranda warnings silence as evidence of his sanity.” 474 U.S. 284, 295, 106 S.Ct. 634, 641, 88 L.Ed.2d 623, 632 (1986). Here, the prosecutor’s attempt to disparage defendant’s insanity defense by referring to the invocation of his right to silence and to an attorney contravened that holding. On remand, the prosecutor must not suggest explicitly or implicitly that defendant’s silence evidenced his sanity at the time of the homicide.

2. Failure to Charge Manslaughter

Defendant also raises as plain error under Rule 2:10-2 that the trial court erred by failing to charge the lesser-included offenses of aggravated manslaughter, N.J.S.A. 2C:ll-4c; reckless manslaughter, N.J.S.A. 2C:ll-4b(l); and passion/provocation manslaughter, N.J.S.A. 2C:ll-4b(2).

The question is whether defendant was entitled to a charge on any form of manslaughter. On this record, the evidence supporting any manslaughter charge is sparse. The victim, who had been hacked and stabbed fifty times with three knives, died of bleeding from multiple stab wounds. Aggravated and reckless manslaughter each require proof of recklessness. Given the absence of evidence that the killing was anything less than knowing or purposeful, we cannot say that the trial court committed plain error by failing to charge either aggravated or reckless manslaughter. See R. 2:10-2. As we have previously explained, the mere fact that a court charges on diminished capacity in a murder case does not automatically require an instruction on either form of manslaughter. See Ramseur, supra, 106 N.J. at 269, 524 A.2d 188.

The evidence on passion/provocation manslaughter likewise is slim. Controverted evidence suggests that the victim struck Oglesby before he killed her. By itself, this evidence falls short of adequate provocation. As we have repeatedly stated, the test for adequate provocation is provocation sufficient to arouse the passions of an ordinary person beyond the power of his or her control. State v. Mauricio, 117 N.J. 402, 412, 568 A.2d 879 (1990). In addition, we have observed that “[t]he offense is not manslaughter but murder where the defendant alone was armed * * *.” Crisantos (Arriagas), supra, 102 N.J. at 274, 508 A.2d 167 (quoting 1 O. Warren and B. Bilas, Warren on Homicide § 110 at 525-26 (Perm.Ed.1938)). On the record before us, even if Russell struck Oglesby, we cannot hold that the jury should have been allowed to find that a single blow by an unarmed woman could have aroused the passions of an ordinary man beyond the power of his control.

It may be, as defendant’s counsel argues, that on remand defendant will develop a more compelling record for a manslaughter charge. Given the inscrutability of mental states, State v. Worlock, 117 N.J. 596, 606, 569 A.2d 1314 (1990), a better record might support not only a charge on diminished capacity as a “defense” to a knowing or purposeful crime, but also a charge on one form of manslaughter or another. On the record before us, however, we do not find that the failure to charge manslaughter constituted plain error.

B. PENALTY PHASE

Defendant also urges as a matter of plain error several errors concerning jury instructions in the penalty phase that do not conform to our subsequent holdings. Given our reversal of defendant’s conviction and the imposition of the death penalty, we need not dwell on those points. If, on remand, there should be a new penalty-phase hearing, the trial court should conform its instructions to our intervening holdings.

-V-

We reverse defendant’s conviction for murder, vacate the imposition of the death penalty, and remand the matter to the Law Division.