State v. Martini ( 1996 )

The opinion of the Court was delivered by

O’HERN, J.

It is difficult to explain why a murderer who has admitted his guilt and had his conviction and sentence of death affirmed on direct appeal should not be granted his request to be executed immediately. For some, no explanation may be necessary. For others, no explanation will suffice. For those who wish to understand, we explain that under our form of government it is not the inmate on death row or the accused who determines when and whether the State shall execute a prisoner; rather, the law .itself makes that determination. The public has an interest in the reliability and integrity of a death sentencing decision that transcends the preferences of individual defendants.

I

The specific question is whether to grant John Martini’s request to dismiss the Office of the Public Defender’s application for post-conviction relief filed on Martini’s behalf but without his consent. The facts of Martini’s case are set forth in detail in our two prior decisions, State v. Martini, 131 N.J. 176, 619 A.2d 1208 (1993) (Martini I), and State v. Martini, 139 N.J. 3, 651 A.2d 949 (1994) (Martini II).

Briefly, Martini kidnapped Irving Flax, a Fair Lawn business executive in 1989. He telephoned Flax’s wife and demanded ransom money. Despite receiving the ransom money, Martini shot Mr. Flax in the back of the head three times, the jury found to prevent Flax from identifying him. A jury convicted Martini of, among other offenses, purposeful and knowing murder over his claim of drug dependency or diminished capacity and sentenced him to death. We affirmed his conviction of murder in Martini I and the proportionality of his sentence of death in Martini II.

On October 2, 1995, the United States Supreme Court denied Martini’s petition for certiorari. Martini v. New Jersey, — U.S. —, 116 S.Ct. 203, 133 L.Ed.2d 137. The following day, the Law Division issued a warrant for defendant’s execution, to take place on November 15,1995. On October 30,1995, the Public Defender applied to the Law Division for permission to pursue post-eonvietion relief on defendant’s behalf over his objection, or for an evidentiary hearing on his competency, as well as for a stay of execution pending post-conviction relief proceedings. At a hearing that same day, the Public Defender acknowledged that defendant did not wish to stay his execution or seek any post-conviction relief. Defendant informed the court that this was correct. With his consent, the court appointed independent counsel for defendant from a list supplied by the Public Defender. The Court also appointed a psychiatrist to examine defendant to determine his competence to waive post-conviction proceedings. On February 14, 1996, at the conclusion of a two-day competency hearing, the trial court ruled that defendant was competent to waive post-conviction proceedings, and that the Public Defender could not seek post-conviction relief on defendant’s behalf over his objection. The trial court continued the stay of defendant’s execution pending review by this Court. The Public Defender appealed the denial of her motion to pursue post-conviction relief. We expedited review of the matter and held oral argument on May 29, 1996.

II

Although the context differs, the issues are essentially the same as those that we faced in State v. Koedatich, reported at 98 N.J. 553, 489 A.2d 659 (1984) (Koedatich I), and 112 N.J. 225, 548 A.2d 939 (1988) (Koedatich II), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989), and State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990). In those cases, each defendant asked either that no mitigating evidence be presented on his behalf, that he be permitted to ask the jury to sentence him to death immediately, or that no appeal of his sentence of death be taken. Koedatich attempted to waive a jury during the penalty phase and instructed his attorney to introduce no mitigating evidence. Koedatich II, supra, 112 N.J. at 327, 548 A.2d 939. Defense counsel followed those instructions and made neither an opening nor closing statement, and presented no evidence in the penalty phase. Ibid. After the jury imposed the sentence of death, the Public Defender filed an appeal on Koedatich’s behalf over his objection. An automatic stay of Koedatich’s execution was entered. Koedatich asked this Court to vacate the stay of his execution and to dismiss the appeal that the Public Defender had filed on his behalf. Koedatich I, supra, 98 N.J. at 553, 489 A.2d 659. He asked to be executed immediately. We denied Koedatich’s motion to dismiss his appeal or to vacate the stay of execution, but ordered that in addition to the appeal prosecuted by the Public Defender, the defendant might secure other counsel or proceed pro se in order to raise such argument on the appeal as he might feel necessary or appropriate. Ibid. The Public Defender prosecuted a successful appeal on Koedatich’s behalf. In our decision of that appeal, we set forth the reasons for our earlier decision that the Public Defender’s appeal should not be dismissed. We noted that “persuasive policy reasons exist for not allowing a defendant in a capital case to execute even a knowing and voluntary waiver of his right to present mitigating evidence during the penalty phase. These policy reasons are based substantially on the State’s ‘interest in a reliable penalty determination.’” Koedatich II, supra, 112 N.J. at 329-30, 548 A.2d 939 (quoting People v. Deere, 41 Cal.3d 353, 222 Cal.Rptr. 13, 19, 710 P.2d 925, 931 (1985)). We also quoted with approval the Appellate Division’s interlocutory opinion in the Hightower ease¹ in which the court allowed a defense attorney to present mitigating evidence even over the client’s express order riot to contest the imposition of the death sentence:

Certainly tension exists between the desires of the client as expressed to his lawyer and the constitutional necessity to insure that the ultimate penalty is not extracted in a “wanton and freakish manner.” In normal circumstances, the lawyer is required by the Rules of Professional Conduct to “abide by a client’s decisions concerning the objectives of representation.”

Under our statutory scheme, a jury may impose the death penalty only if the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. If the jury did not hear the evidence allegedly in mitigation, it could have difficulty discharging its statutory, and indeed moral, duty. Our conclusion is reinforced by a recent amendment to the death penalty statute which requires that an appeal must be taken even if defendant does not want to appeal and that our State Supreme Court must review the issue of proportionality of the sentence on defendant’s request.

[Koedatich II, supra, 112 N.J. at 330, 548 A.2d 939 (quoting State v. Hightower, 214 N.J.Super. 43, 44-45, 518 A.2d 482 (App.Div.1986)).]

The Koedatich Court' explained: “Essential to our [capital punishment] statute is that its application cannot result in death sentences that are “wantonly and ... freakishly imposed.’ ” 112 N.J. at 331, 548 A.2d 939 (quoting Furman v. Georgia, 408 U.S. 238, 310, 92 S.Ct. 2726, 2762-63, 33 L.Ed.2d 346, 390 (1972) (Stewart, J., concurring)). Our procedures for trial and appeal are established

not only to protect the interests of the accused, but also to enable a state to enact a constitutional death penalty statute____ A defendant who prevents the presentation of mitigating evidence “withholds from the trier of fact potentially crucial information bearing on the penalty decision no less than if the defendant was himself prevented from introducing such evidence by statute or judicial ruling.” People v. Deere, supra, 222 Cal.Rptr. at 19, 710 P.2d at 931.

Courts have recognized that the qualitative difference between death and any other penalty gives rise to “a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.24 944, 961. It is self-evident that the state and its citizens have an overwhelming interest in insuring that there is no mistake in the imposition of the death penalty. Accordingly, we have the constitutional and statutory duty to review every judgment of death.

[Id. at 331-32, 548 A.2d 939 (citation omitted).]

Thus, under our law a defendant may not waive a sentencing hearing, may not waive the presentation of mitigating evidence, and may not waive an appeal. The question is whether a defendant who has presented mitigating factors to a jury and has had his conviction and sentence affirmed on direct appeal may waive post-conviction relief (PCR). The answer depends on the importance of post-conviction relief to ensuring the reliability and integrity of death sentences imposed in New Jersey.

We strongly disagree with the position of the Public Defender that Martini has had only half an appeal. Post-conviction relief is not in any sense a half appeal. We have repeatedly emphasized that post-conviction relief is not a substitute for a direct appeal. State v. Mitchell, 126 N.J. 565, 583, 601 A.2d 198 (1992) (citations omitted). Rule 3:22-4 sharply limits what may be raised on PCR.

The State has a strong interest in achieving finality. Without procedural rules requiring the consolidation of issues, litigation would continue indefinitely in a disconnected and piecemeal fashion. Each time a petitioner brought forward a new issue, attorneys and courts would waste their limited resources acquainting themselves with all of the complex details necessary to adjudicate it. When the grounds for challenging a conviction are consolidated, that investment need occur only once, and judicial resources can be more efficiently used to decide cases in a timely fashion.

[Mitchell, supra, 126 N.J. at 584, 601 A.2d 198.]

On the other hand, there are some issues that one simply cannot raise on direct appeal and other issues that are best raised on PCR. “Ineffeetive-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.” State v. Preciose, 129 N.J. 451, 460, 609 A.2d 1280 (1992) (citations omitted). Other particularly well-suited claims arise when “new case law has changed the applicable standards and should be retroactively applied to the case [undergoing post-conviction review],” when “the challenge is to the appellate proceedings themselves,” or when “the claim is based on testimony outside of the trial court that could not have been raised on direct appeal.” Mitchell, supra, 126 N.J. at 585, 601 A.2d 198. Examples of claims that are often based on facts outside the record include claims based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (failure to disclose exculpatory evidence), and ineffectiveness of counsel claims.

In her 1995 Madison Lecture at New York University, Judge Betty B. Fletcher of the Ninth Circuit gave two examples of the need for post-conviction relief. Betty B. Fletcher, The Death Penalty in America: Can Justice be Done?, 70 N.Y.U.L.Rev. 811, 822 (1995). The first involved Randall Adams. Mr. Adams was tried and convicted for the murder of a Dallas police officer. Subsequent events revealed significant questions about the evidence used to convict him. That evidence prompted the court to grant a post-conviction hearing that resulted in one of Adams’ chief accusers confessing to the crime. Ibid.

The second involved Clarence Brandley. An all-white jury sentenced Brandley to death for the rape and murder of a white student from the high school where Brandley worked as a janitor. The conviction was based on circumstantial evidence. After Brandley’s conviction, the ex-wife of a white janitor from the same high school informed authorities that her former husband had admitted committing the crime. In a PCR hearing, a state court judge reviewed that new information, along with statements of others who had come forward, and ordered a new trial. Ibid. These men, unlike Martini, were innocent and protested their innocence. The point is that without post-conviction relief procedures they would have been executed. Of course, such examples of successful petitions for PCR are rare. Many PCR petitions do seek only to rerun the trial. The problem lies in separating the wheat from the chaff.

In this case, the Public Defender informs us that there are three issues that defendant could not have raised on direct appeal: (1) a defense based on certain undisclosed confidential information that has been imparted to the Public Defender and presumably was not disclosed to the jury below; (2) a new constitutional principle announced by the Supreme Court after Martini’s trial in Simmons v. South Carolina, 512 U.S. -, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); and (3) evidence disclosed after Martini’s conviction that suggests that New Jersey’s death penalty system may be constitutionally flawed because of systemic discrimination against blacks and other minorities.

We are obviously unable to assess the significance of the first issue because we do not know the nature of the confidential information. We do know that the Public Defender received this information as attorney for Martini and may be obliged to respect the confidences of her client. Presumably there will be an in camera hearing. The trial court will have to balance the interests of the client against any public interest in the disclosure of the information.

Concerning the second issue, Simmons, supra, held that “[t]he State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.” 512 U.S. at-, 114 S.Ct. at 2198, 129 L.Ed.2d at 147. In Martini I, defendant argued that the trial court should have instructed the jury that it would sentence Martini to consecutive terms for the murder and kidnapping, thus assuring that he would die in jail. 131 N.J. at 308-09, 619 A.2d 1208. Martini’s defense counsel did make the argument that defendant was not likely to live long enough to be released after a thirty-year period of parole ineligibility. Defendant was sixty years old at the time of trial. Having served more than a year in jail prior to trial, his release, at the earliest, would have come as he approached ninety. The jury was well aware of those circumstances. Id. at 308, 619 A.2d 1208. Based on that record, the lack of defense counsel’s request, and the jury’s knowledge of the practical consequences of defendant’s life sentence, the Court found no error in the trial court’s failure to instruct the jury about defendant’s potential consecutive sentence for his kidnapping conviction. Id. at 313, 619 A.2d 1208. The issue is similar, but not identical, to the one raised in Simmons. In any event, disposition of the issue should not require extended proceedings.

The third issue, if meritorious, would fit within a traditional category for which post-conviction relief would be granted. The State does not dispute that the new data on capital sentencing make this an issue that could be raised only on post-conviction relief. Rather, the State argues that the Public Defender has no standing to raise the issue on defendant’s behalf because defendant has waived the issue.² The problem is that the judiciary is constitutionally involved in the administration of the death penalty; the judiciary issues the death warrant. N.J.S.A 2C:49-5; Judges Bench Manual for Capital Cases, March 10, 1995 (Appendix N). Thus, the question is not whether the Public Defender has standing to raise an issue on behalf of the defendant, but whether the judiciary, in the discharge of its “constitutional and statutory duty to review every judgment of death,” Koedatich II, supra, 112 N.J. at 332, 548 A.2d 939, must consider the issue in order to ensure the reliability of the decision to execute. Consequently, we need not debate or decide the differences between standing under Article III of the United States Constitution and under Article VI of the New Jersey Constitution. See Crescent Park Tenants Ass’n v. Realty Equities Corp., 58 N.J. 98, 107-08, 275 A.2d 433 (1971) (explaining that “overall [in evaluating standing] we have given due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of ‘just and expeditious determinations on the ultimate merits.’ ”) (citations omitted).

In Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), the United States Supreme Court declined on standing grounds to consider an appeal by Gary Gilmore’s mother that the Utah death penalty act was unconstitutional. That approach may be constitutionally permissible for the United States Supreme Court because it is not part of a state system of administration of the death penalty. In contrast, the New Jersey judiciary is an integral part of the administration of the death penalty. There are three requirements for the constitutionality of a death penalty statute: (1) that sentencers be “given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision,” Gregg v. Georgia, 428 U.S. 153, 192, 96 S.Ct. 2909, 2934, 49 L.Ed.2d 859, 885 (1976) (opinion of Stewart, Powell, and Stevens, JJ.), (the aggravating and mitigating factors); (2) that there be an individualized determination of the sentence on the basis of the character of the individual and the circumstances of the crime, Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1, 8-9 (1982); and (3) that “the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously____” Gregg, supra, 428 U.S. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at 886-87.

Unless we regard as meaningless the procedures for post-conviction relief set forth in our Rules of Court, even were there no Office of the Public Defender in New Jersey, we would undoubtedly be required to appoint standby counsel for defendant in order to perform a “meaningful appellate review” of his death sentence. Because the issues potentially raised in a PCR petition are so varied and important, “[f]rom our state perspective, finality is achieved [only] when our courts grant or deny post-conviction relief.” Preciose, supra, 129 N.J. at 475, 609 A.2d 1280. This is because when “meritorious issues are presented, our interest in affording defendants access to both state post-conviction and federal habeas review outweighs our interest in finality____ Simply put, considerations of finality and procedural enforcement count for little when a defendant’s life or liberty hangs in the balance.” Id, at 475-76, 609 A.2d 1280.

We acknowledge that other jurisdictions do not recognize the standing of one such as the Public Defender to prosecute a post-conviction relief application on behalf of a death row inmate who does not seek their assistance. It is a natural reaction for some to wish to be rid of an admitted murderer who asks to be executed. The Court is nonetheless required to ensure the integrity of death sentences in New Jersey. In State v. Ramseur, 106 N.J. 123, 190, 524 A.2d 188 (1987), we said that Article I, paragraph 12 of the New Jersey Constitution requires “consistency and reliability” in enforcement of the death penalty. There can be no illusions for us that there is a bureaucracy of death that discharges for us that responsibility. Ralph P. Hummel, The Bureaucratic Experience 90-93 (2nd ed. 1982). The Court must decide if issues that could not be raised on direct appeal make the prisoner’s sentence of death unconstitutional or illegal.

Of course, we cannot stay scheduled executions for each new issue that arises. There must be an end to the process. We recognized in State v. Marshall, 130 N.J 109, 219, 613 A.2d 1059 (1992), that someone will die before every avenue of inquiry will have been ended: “Ours is a finite role defined by our obligation to see that justice is done at a given time.” Consequently, for capital defendants who do not desire post-conviction review, we tailor the process to the limited demands of integrity and reliability, establishing the following truncated procedure. There shall be one proceeding. Such post-conviction relief will be limited to matters that have always been capable of being raised in post-conviction relief, even when procedurally barred, such as newly discovered evidence of innocence, unconstitutionality, or illegality of a death sentence. In addition, we shall specifically require accelerated disposition of any such claim, both in the interest of the defendant who wishes to conclude the appeal process as soon as possible, and in the interest of the public that seeks to know that justice is done.

We direct that a PCR application for a capital defendant opposed to PCR be filed by the Public Defender or other designated counsel within thirty days after knowledge that a defendant does not wish to pursue post-conviction relief. (In this case, within thirty days of today.) Standby counsel should be appointed to represent the interests of one such as Martini. We direct that the Assignment Judge of the vicinage assign the petition to a judge capable of conducting the proceedings on a continuous day-to-day basis from the date of the assignment. Preciose, supra, 129 N.J. at 462, 609 A.2d 1280, outlines the circumstances in which a PCR court may dispose of a petition without a hearing. We direct that the Administrative Office of the Courts provide to the trial court the services of a computer-assisted court reporter so that transcripts may be generated simultaneously with the proceedings. Upon the conclusion of any hearings, we direct that the judge conducting the post-conviction relief proceedings immediately certify to the Supreme Court the transcribed record and copies of any exhibits and briefs filed in the Law Division. The trial court may render its decision either orally from the bench or by written opinion promptly after the conclusion of the hearings, as did the trial court below. An aggrieved party must file with the Supreme Court its notice of appeal with any supplemental briefs within fifteen days after the trial court’s ruling. The Court shall thereafter render its own decision within forty-five days of receipt of the notice of appeal and any supplemental briefs or within thirty days of any scheduled oral argument.

That abbreviated hearing schedule for capital defendants who do not desire PCR will enable the Court to determine whether waiver of PCR will result in an execution that would be unconstitutional or illegal. Some issues may not be amenable to summary disposition. The one issue in this case that would require further consideration is an issue of constitutional dimension that has been raised directly in the appeal of Joseph Harris, which will be argued before the Court on September 10, 1996. That issue concerns a challenge to the constitutionality of the death penalty based on recent data that suggests that New Jersey’s death penalty may be constitutionally flawed because of systemic discrimination against blacks and other minorities. In Harris, the defendant argues that the statistics gathered by the Administrative Office of the Courts “establish that the race of the defendant is a strong factor in explaining why some defendants get life sentences and others get death, to a sufficient significance as to implicate the State Constitutional guarantees of equal protection and protection from cruel and unusual punishment.”

“New Jersey’s history and traditions would never countenance racial disparity in capital sentencing.” Marshall, supra, 130 N.J. at 207, 613 A.2d 1059. The Court is the appropriate branch of government to vindicate that tradition and our own constitutional guarantee of equal protection of the laws under Article I, paragraph 1 of the New Jersey Constitution. In Marshall, we specifically reserved the power to re-evaluate the constitutionality of the death penalty statute if statistical evidence were to illustrate a racial disparity in death sentences. Id. at 212-14, 613 A.2d 1059. Plenary briefs have been filed on the issue by Harris and the State. Consequently, Martini’s PCR court may take judicial notice of the pending appeal and its effect on Martini’s case. Both majority and dissent agree that a stay of Martini’s execution until that date would be in order.

The Attorney General acknowledges that her office would not seek to have a prisoner executed by waiver under a system of laws later determined to be unconstitutional. She believes firmly, however, that there is no question of constitutionality and thus no waiver of any procedures that assure the reliability of a death sentence. The Bergen County Prosecutor acknowledges in her brief that there is a narrow class of cases in which PCR would be institutionally required even over a prisoner’s objection, as when there was newly-discovered evidence of innocence or when the death penalty had been declared unconstitutional. She cites Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 177 (1978), in which the Pennsylvania Supreme Court held that because the State’s death penalty statute was declared unconstitutional, defendant’s death sentence “must be vacated, appellant’s professed desire to the contrary notwithstanding.” If, then, there are exceptions to the doctrine that a capital defendant may waive all rights to PCR, standing is not a conceptual obstacle to the administration of justice. Thus, it is not issues of standing or waiver that determine the matter but whether the Court provides meaningful appellate review of a capital sentence when it authorizes the execution of a prisoner at the same time that it is considering whether the Death Penalty Act is constitutional. It seems to us that the answer to that question must be no unless we no longer believe that it is “self-evident that the state and its citizens have an overwhelming interest in insuring that there is no mistake in the imposition of the death penalty.” Koedatich II, supra, 112 N.J. at 332, 548 A.2d 939.

We have considered the other issues raised concerning the competency of Mr. Martini. We are satisfied that the trial court correctly resolved on the basis of psychiatric evidence before it that Martini is competent to make this decision and has voluntarily expressed a desire to prosecute no further appeals. We respect his choice. We have a constitutional responsibility to ensure reliability in the implementation of the death penalty. We shall discharge that responsibility with dispatch. We have accelerated the argument and decision of this appeal and will continue that practice until the matter is resolved.

Finally, we conclude that the trial court was correct to order the Public Defender to pay for the cost of the court-appointed psychiatric expert who evaluated Martini. “In In re Cannady, 126 N.J. 486, 600 A.2d 459 (1991), ... we held that the Public Defender Act mandates that the OPD [Office of the Public Defender] pay for expert services that are necessary to any indigent defendant’s case.” In re Kauffman, 126 N.J. 499, 501, 600 A.2d 465 (1991). An expert evaluation of Martini’s competence, like his representation by private counsel, is a service necessary to defendant’s case. The trial court has an independent interest in assessing Martini’s competence. It is not unfair to permit the court to impose those fees on the OPD. We are confident that there will be no abuse of that authority at the expense of the OPD budget.

The judgment dismissing the post-conviction application is reversed and the matter is remanded to the Law Division for further proceedings in accordance with this opinion.

1 When we reviewed the Hightower case on direct appeal, we approved the procedures set forth in the Appellate Division opinion. Hightower was permitted to ask the juiy that he be sentenced to death. However, his sentence of death had to be vacated because the jury had been instructed that it had to be unanimous in finding any mitigating factors. 120 N.J. at 386, 577 A.2d 99. At his second trial he did not ask to be sentenced to death.

2 The record is not clear whether Martini expressed the wish to be executed if he were the only person to be executed under the State's capital punishment law. As we understand the record, he wishes to avoid delaying the inevitable, not to be the only death row inmate to be executed.