Judges： Lavecchia, Coleman, Long
Filed Date： 7/15/2002
Status： Precedential
Modified Date： 10/19/2024
The opinion of the Court was delivered by
Table of Contents
Introduction........................................65
I. Facts and Procedural History........................66
II. Asserted Guilt-Phase Errors.........................79
A. Failure to Prove Own-Conduct Murder............79
B. Sequential Instruction to Jury on Own-Conduct Murder and Accomplice Liability...........86
C. Other Alleged Guilt-Phase Instruction Errors......96
1. Instruction on Serious-Bodily-Injury Murder V.................................96
2. Additional Asserted Instruction Errors........101
a. Self-Defense/Defense of Others..........101
b. Passion/Provocation.....................103
D. Guilt-Phase Voir Dire Inadequacy...............104
III. Penalty-Phase Errors..............................105
A. Penalty-Phase Jury Selection....................106
1. Reference to Appellate Process...............106
2. Excusal of Juror Based on Views on Death Penalty ...).......................109
B. Conduct of Penalty-Phase Trial..................110
1. Failure to Prove Aggravating Factor 4(g).....110
2. Exclusion of Testimony Criticizing State’s Evidence................................115
3. Improper Introduction of Evidence of Similarity of Prior Murder.................116
4. Introduction of Inflammatory Victim-Impact Evidence............................122
5. Prosecutor’s Remarks During Summation.....122
a. Remarks About Duty to Society..........125
b. Remarks About Experience as a Prosecutor...........................125
c. Remarks About Failure to Testify........126
e. Remarks About Defendant’s Relationship with Son........................128
C. Alleged Error in Jury Charge During Penalty Phase ......................................129
D. Penalty-Phase Jury’s Alleged Failure to Vote Individually on Aggravating Factors............131
IV. Additional Issues ..................................135
A. Standard of Proof of Circumstantial Evidence for By-Own Conduct Murder..................135
B. Constitutionality of New Jersey Death Penalty Statute.....................................137
V. Conclusion........................................142
A Camden jury convicted defendant Daron Josephs of purposeful or knowing murder by his own conduct of Leon Mitchell and Barrington McLean, conspiracy to murder Mitchell, McLean, Christine Williams, and Emil Josephs, and related weapon-possession offenses. A separate jury sentenced defendant to death for the murder of Mitchell and McLean. In this appeal, defendant
We affirm defendant’s non-capital convictions. Also, defendant’s convictions of purposeful or knowing murder of McLean and Mitchell are sustained. Because of error affecting the by own-conduct determinations, we hold that defendant’s death eligibility cannot be sustained. Although error in the own-conduct instruction requires reversal of the death sentences, that does not affect defendant’s conviction of the murders provided the State is willing to accept non-capital sentences. However, if the State intends on remand to seek again capital sentences for the murders, then defendant’s guilt by his own conduct will have to be proven beyond a reasonable doubt in a second guilt-phase trial. As a consequence of our disposition, we need not and do not engage in proportionality review. We also reaffirm our case law upholding the constitutionality of New Jersey’s death penalty statute.
Facts and Procedural History
The shootings that caused the deaths of Mitchell, McLean, and Williams on January 22, 1995, resulted from a dispute among brothers and friends involved in a marijuana distribution operation led by Emil Josephs. Emil lived in Camden in an apartment located at 3212 Federal Street. Residing with him at the time were his brother, Turan Josephs (TJ), and his friend Barrington McLean. The apartment occupied the second floor and attic of a house. On the second floor were two bedrooms, a kitchen, and one bathroom. McLean and TJ slept in the second floor bedroom located at the front of the house. Emil used the attic as his bedroom.
Although drugs were not distributed from the apartment, Emil kept a quantity of marijuana in a compartment under the stairs leading to the attic. Significant amounts of cash also were kept in the house at times. The drug-dealing business had become very busy around the end-of-year holidays in 1994, taking in approximately $15,000 per week at the time of the shootings. Emil shared the profits with McLean and TJ, allowing them a one-third share to split between themselves.
Sometime during December 1994, defendant (whose nickname is Dee) and Hugh Josephs Jr. (nicknamed Junior), Emil’s half-brothers, moved into the apartment because they had agreed to install carpeting for Emil. It is noteworthy that defendant and Junior arrived in a red Honda Civic that they used while they remained at the apartment on Federal Street. In terms of familial relations, we also note that Emil, TJ, defendant, and Junior share the same father, Hugh Josephs Sr.; however, Emil and TJ have a different mother from defendant and Junior.
• Junior was promised $2500, and defendant $1500, to lay the carpeting. Lacking sufficient cash to pay them in full, Emil compensated Junior and defendant with marijuana to sell. The profits from those sales were sufficient to serve as payment for
Emil was the only person present in the apartment on the evening of Saturday, January 21,1995, who testified at defendant’s trial. Other than defendant, and Junior, whose whereabouts are unknown, all of the others present were killed. According to Emil’s testimony, on that Saturday he learned from his friend, “Bloody” (a business associate in the marijuana business), that defendant and Junior were selling marijuana purchased from another source, and that they were selling the other drugs at Emil’s sales location. Apparently, the two were pocketing the money from those sales. Selling marijuana purchased from another distributor was contrary to Emil’s direct orders to defendant and Junior when he allowed them to deal drugs for him.
Emil returned to the apartment that evening to find McLean, Mitchell, defendant, and Junior sitting in the kitchen. He had directed defendant and Junior to leave their designated sales post and to meet him back at the apartment. Emil described himself as enraged because defendant and Junior had not followed his orders. He told them they were “out of the business.” The heated verbal confrontation escalated as Junior and Emil began to scuffle. Brandishing a kitchen knife, defendant approached Emil from behind, but he was disarmed by McLean. Emil ordered Junior and defendant to leave his house, and then proceeded into their bedroom where he took a nine millimeter and .45 caliber gun from their bags and began to pack their clothes. Mitchell interceded and persuaded Emil to let defendant and Junior stay for the remainder of the night because it was past midnight. Nonetheless, Emil took the two guns with him to the attic where he had a third gun, a .357. Normally, a gun would be kept under the kitchen sink for “emergencies.”
Sometime between five and six o’clock in the morning, Emil, dressed only in a tee shirt, underwear, and slippers, went downstairs. He saw defendant and Junior fully dressed in their room as he again passed by. Emil proceeded to the kitchen where he met up with Mitchell and Williams: After a brief time, Mitchell left the room, leaving behind Williams and Emil. Not long thereafter, Junior came in the room. Emil testified that although he was not paying close attention to what Junior was doing, he was aware that Junior went by the sink and then left the room, walking in a hunched-over manner. As noted, a gun typically had been kept in the cabinet under the sink.
Junior then reentered the room, and Williams screamed as he pointed the nine millimeter gun at Emil and stated “What’s up now?” Emil asked him if he was going to shoot. Junior proceeded to pull the trigger, but the gun did not fire. While Junior reloaded, Emil jumped through a kitchen window, breaking the glass as he did. He landed, bleeding, in an alley. His neighbors, Delores Morrison and Raymond Mann, were in the alley at the time. They heard the breaking glass and saw Emil covered with blood from gashes on his leg and arm. He told them that he was in a fight and that someone was trying to kill him.
According to Emil, as he ran away from his apartment, he heard three shots, a pause, and then additional shots. He stated that he believed the shots sounded as if coming from different guns. He
Emil hitched a ride to the apartment of his friend, Bloody, who arranged for friends to take Emil to New York. Bloody then drove to Philadelphia Airport to pick up TJ and Lorna Palmer, who were returning from Texas with some marijuana for Emil. He dropped them off at Emil’s apartment. We note here that Bloody died before trial and, therefore, we have only TJ’s recitation concerning these events.
Because TJ had forgotten his keys, he rang the doorbell. When no one answered, Palmer left. TJ then proceeded to climb into the apartment through one of the two kitchen windows, noticing the broken glass on the ground below the windows. TJ found food cooking on the stove and then discovered that Mitchell, McLean, and Williams had been shot to death. Not wanting to be involved in the shootings, TJ removed his personal items from the apartment. He then reported the murders to the police by calling from a pay phone and by flagging down a patrol car. He also contacted a police officer he knew through a friend.
Upon arrival, the police found no sign of forced entry. The three bodies were found in different locations in the apartment. McLean’s body was in the front bedroom. Williams’s body was found in a crouched position in a corner of the bathroom. Mitch
The Investigation and Arrest
Dr. Robert Catherman, a medical examiner for Camden County, performed autopsies on all three victims. The autopsy on McLean revealed that he had been shot six times. The first bullet entered the top right side of McLean’s head at a sharp downward angle, fracturing his skull and causing acute damage to his brain. The second shot went through McLean’s face, obliterated his right eye, and exited through his left cheek. It caused bruising to the adjacent lobes of McLean’s brain. The third shot entered the back of his left thigh, pierced his scrotum, and then entered and exited his right thigh. The fourth shot entered the back of McLean’s upper right thigh and cut through his abdomen. That bullet ruptured his intestine, fractured his right femur, broke his thigh bone, and damaged his colon. The fifth and sixth shots entered and exited McLean’s right hand and appeared to be defensive wounds. McLean also suffered eight blunt force injuries, all of which were consistent with having been inflicted by a steam iron. Four of the injuries were to his hands and arms and appeared to be defensive wounds. The other four injuries were inflicted to his head. The head injuries went through the scalp and down to his skull. They did not cause bone damage but may have been sufficient to render McLean unconscious.
The cause of death for McLean was the combined effects of the gunshot wounds that involved the head, trunk, right and left legs, the right arm and hand, and, to some extent, the blunt force injuries to his head. The bullet from the first shot was recovered from the base of McLean’s skull and was identified as a .38 caliber class metal-jacketed lead projectile. The bullet from the fourth shot was recovered from McLean’s abdominal wall and was identified as a nine millimeter projectile. Two more bullets were embedded in the carpet directly under McLean’s body: a nine millimeter projectile was found under McLean’s lower chest, and a .45 caliber projectile was found under McLean’s lower abdominal
The autopsy on Mitchell revealed that he had been shot four times. The first shot entered the left side of the front of Mitchell’s chest, shattered his spinal column and cord, damaged his liver, stomach, duodenum, and pancreas, and exited through the lower right side of his back. The second shot went through his face and bruised the lobes of his brain. The third shot went through the left side of Mitchell’s cheek, also bruised the lobes of his brain, and exited through the jaw. The fourth shot entered his lower lip, shattered his upper jaw, and exited in front of his right ear. There was stippling surrounding the second and third gunshot wounds, indicating that they had been fired at close range. Dr. Catherman found that the cause of Mitchell’s death was a combination of all four wounds. There were three defects in the carpeting under Mitchell’s body. One of the defects, located under Mitchell’s torso, was caused by a projectile that was smaller than a .45 caliber projectile, such as a nine millimeter projectile. The other two defects were under Mitchell’s head. They were caused by .45 caliber projectiles. The lead core of a nine millimeter projectile was in Mitchell’s hair, near his fourth exit wound, and the jacketing that had surrounded the lead core was in the fourth exit wound.
The autopsy on Williams revealed that she had been shot twice in the head. The first shot struck the bridge of her nose, passed through her face, and exited on the left side of her cheek. There was stippling surrounding the entrance wound, suggesting that the shot had been fired at close range. The second shot entered through the top of Williams’s head, passed through her skull and brain, and proceeded on an acutely downward angle through the base of the skull and into the neck. The sharp downward angle of this shot suggested that Williams’s head had been flexed against her chest, and that the gun had been pointed directly at the top of
Sergeant Gerald Burkhart of the New Jersey State Police, an expert in ballistics and firearms identification, determined that three different firearms were responsible for discharging the bullets and shells recovered from the scene and from the victims’ bodies. The nine-millimeter-discharged bullets and shells had been fired from one gun, the .45-ealiber-diseharged bullets and shells had been fired from a second gun, and the .38-caliber-class-discharged bullet, recovered from the base of McLean’s skull, had been fired from a third gun, possibly a .357 revolver. Concerning the discharged shells, Sergeant Burkhart testified that they fell into two distinct groupings indicating that they were fired from two guns. He also stated that there is a difference in how different guns sound when discharged.
During cross-examination of Detective Michael Aaron, it was revealed that some of the ballistic casings had been picked up by investigators with bare hands and that no effort was made to test the casings for fingerprints. Sergeant Burkhart did not test the projectiles for fingerprints either. Detective Aaron explained that the preferred method of testing for fingerprints could compromise the ballistics testing that connects ammunition and the gun from which it was fired. He stated further that he did not conduct any of the tests used to determine whether a victim handled or fired a weapon because those tests can yield a positive result when the victim was simply in the same room as a fired gun.
The police did not find useable latent fingerprints in the kitchen, bathroom, or third floor. No cash or firearms were found in the apartment. The police found another discharged nine millimeter cartridge case; a black leather jacket and an electronic organizer, both of which belonged to defendant; two battery operated digital scales; a white plastic bag filled with numerous small- and medi
Fonceta Young was interviewed by the police. Young lived in the first floor apartment at 3212 Federal Street. She did not know the people who lived in the second-floor apartment. While she was watching television that morning, she heard “thumping” noises coming from the second-floor apartment. She described the sound to be like “wrestling” or “playing.” After about six or seven seconds of that noise, Young heard seven to nine “tapping” sounds. She thought her upstairs neighbors were having a “domestic argument.” Approximately fifteen minutes after that noise ended, she heard the sound of footsteps running down the stairs from the second floor to the ground level. She also heard a man’s voice saying, as if in a hurry, “Come on, Dee. Dee, come on.”
Joyce Poole also was interviewed. Her home shared a common wall with the house located at 3212 Federal Street. Poole was upstairs when she heard what sounded like “bumping” noises coming from the other side of the common wall. She thought it was the sound of men fighting. She then heard sounds like a jack hammer coming from the apartment. The events she described lasted between ten and fifteen minutes.
Sandra Delgado lived across the street. Although she did not hear gunshots she heard the sound of shattering glass, and when she looked out her window she saw someone speaking to Morrison. She watched as Morrison handed something to the man. Delgado said she went back to bed not thinking that what she had witnessed was significant. Delgado did not know the people living at 3212 Federal Street, but on one occasion she had seen a stream
At approximately 9:30 a.m. on the morning of the murders Detective Jeffrey Frampton and Officer Shane Sampson were on patrol in Camden. A red Honda Civic approached their car and then made a sudden stop. A black male, who appeared to be 5'6" or 5'7", got out of the car and fled into the neighboring town of Pennsauken. The driver of the Honda then proceeded at high speed in the wrong direction on a one-way street. Frampton and Sampson activated their siren and pursued the Honda until another vehicle cut them off. Believing that they were pursuing a stolen vehicle, they radioed their fellow officers to watch for the Honda. Another unit found the car approximately fifteen minutes later, abandoned at a nearby street corner where it had struck a fire hydrant. The officers took down the vehicle information and impounded the car because it had not been reported as stolen.
The following month Emil returned to Camden and was apprehended by the police. He was interviewed and his wounds photographed. Charged as a fugitive from Texas, Emil was held in the Camden County Jail.
In early March 1995, police obtained arrest warrants for defendant and Junior and a search warrant for their mother’s house in Brooklyn. When the search warrant was executed, the police found a letter from the City of Camden indicating that on January 22, 1995, a 1986 Honda Civic with New York license plates had been recovered in Camden and was being held by the Camden Police Department. They also found letters from the Camden County Prosecutor’s Office to defendant and Junior, informing them that there were charges pending against them in Camden.
The police obtained a search warrant for the vehicle, which had been taken to a towing and salvage yard. On the seat, police found ignition keys, a large black leather hat, and a pair of sunglasses. No evidence of drugs, drug paraphernalia, or bloodstains were found. The hat was taken because it fit Morrison’s description of the hats worn by the men she saw leaving 3212
Pre-Trial and Guilt-Phase Proceedings
On February 25, 1998, Camden County Indictment Number 803-02-98 charged defendant with the following offenses: first-degree purposeful or knowing murder of Barrington McLean by his own conduct, in violation of N.J.S.A 2C:ll-3a(l) and (2) (Count One); first-degree purposeful or knowing murder of Leon Mitchell by his own conduct (Count Two); first-degree purposeful or knowing murder of Christine Williams, not by his own conduct (Count Three); first-degree attempted murder of Emil Josephs, in violation of N.J.SA 2C:ll-3a (Count Four); second-degree aggravated assault of Emil Josephs, in violation of N.J.SA 2C:12-lb(l) (Count Five); conspiracy to murder Emil Josephs, Barring-ton McLean, Leon Mitchell, and Christine Williams, in violation of N.J.SA 2C:5-2 (Counts Six, Seven, Eight, and Nine, respectively); second-degree possession of a firearm for an unlawful purpose, in violation of N.J.SA 2C:39-4a (Count Ten); and third-degree possession of a handgun without a permit, in violation of N.J.S.A 2C:39-5b (Count Eleven).
In seeking the death penalty, the State informed defendant that it would establish that defendant had been previously convicted of another murder, an aggravating factor pursuant to N.J.S.A 2C:ll-3c(4)(a), and that the offenses were committed while defendant was engaged in the commission of or attempting to commit murder, N.J.SA 2C:ll-3c(4)(g) (the murder-within-murder aggravating factor).
To avoid the guilt-phase jury from being impermissibly influenced by defendant’s prior murder conviction, separate juries were empaneled for the guilt and penalty phases. The guilt-phase trial was conducted from June 2, 1998 through June 25, 1998. A number of items were admitted into evidence over the objection of defendant. The jury observed the victims’ bloody clothing, including some underwear; graphic autopsy photographs; and an in-
Defendant was acquitted of the murder of Williams and the attempted murder and aggravated assault of Emil. He was found guilty of the capital murder of McLean and Mitchell, of conspiracy to murder McLean, Mitchell, Emil, and Williams, possession of a firearm for an unlawful purpose, and unlawful possession of a handgun. On April 5, 1999, defendant’s motion for a judgment of acquittal or, in the alternative, a new trial, was denied.
Penalty Phase
There were several pre-penalty-phase motions. The court granted the State’s motion for consolidation of several mitigating factors and also ruled that the State did not have to re-prove the elements of murder to establish aggravating factor 4(g).
The State also moved to exclude the proposed testimony of defense witness Professor Marilyn Miller, a forensic science expert. Professor Miller was engaged by the defense to conduct an evaluation of the physical evidence and to present a crime-scene reconstruction for the penalty-phase jury. Because the penalty-phase jury was not present for the guilt-phase presentation of evidence, Professor Miller would have explained to the second jury defendant’s position on the inadequacy of the State’s investigation of the physical evidence and the State’s failure to preserve the evidence. The defense argued that Professor Miller’s testimony was relevant to the circumstances of the crime generally, defendant’s lesser role in the crime compared to Junior, possible provocation by the victims, and the State’s burden to prove the 4(g) aggravating factor of murder committed in the course of a murder. The trial court concluded that the proposed testimony of Professor Miller was irrelevant to the sentencing phase because it pertained only to a guilt-phase issue; that it was not relevant to
The trial court also granted defendant’s motion to withhold from the penalty-phase jury the determination of the guilt-phase jury that defendant was guilty of murder by his own conduct. Counsel explained that defendant intended to argue as a mitigating factor that he played a lesser role in the offense than Junior. Although the trial court granted defendant’s motion, the court additionally instructed the jury that it was not to doubt defendant’s guilt of the murders of Mitchell and McLean. Lastly, the trial court ruled that the State could rely on the transcript of the guilt-phase testimony of Emil Josephs because he was unavailable to testify during the penalty phase.
The penalty-phase trial began on March 21,2000. As noted, the State relied on two aggravating factors: that defendant had been convicted, at some other time, of murder; and that the offenses were committed while defendant was engaged in the commission of murder. For the first aggravating factor, the State relied on testimony from the district attorney who tried defendant in New York that on May 21, 1997, defendant was convicted of second-degree murder in that state. The victim, Philip Rowe, was a twenty-four-year-old “friend” of defendant who suffered two gunshot wounds to the head and one in his hand.
In support of the second aggravating factor, “murder in the course of a murder,” the State presented evidence about the police discovery of the shootings; the processing of the apartment for forensic evidence; the general police investigation involving TJ, Emil, and defendant; and the results of ballistics examinations. The guilt-phase testimony of Emil and TJ was read to the jury. Investigator John Alloway, who had responded to the scene as a representative from the medical examiner’s office, and Dr. Robert Catherman, who performed the autopsies, testified that the vie
The defense alleged as mitigating factors that defendant was under the influence of mental or emotional disturbance insufficient to constitute a defense to prosecution, N.J.S.A. 2C:ll-3c(5)(a); defendant’s age at the time of the murders, N.J.S.A 2C:11-3c(5)(e); and thirteen circumstances of defendant’s life under the “catch-all” mitigating factor, N.J.S.A 2C:ll-3c(5)(h). Numerous mitigation witnesses testified on behalf of defendant.
On April 6, 2000, the jury unanimously found both aggravating factors. The jury also found the N.J.S.A. 2C:ll-3C(5)(a) mitigating factor (mental illness or emotional disturbance) (one juror) and eight of the N.J.S.A 2C:ll-3C(5)(h) (catch-all) factors: impairment of the bonding process between defendant and his mother (five jurors); defendant’s lack of parental guidance from his mother (nine jurors); absence of defendant’s father from his life (one juror); defendant’s vulnerability to being used by others (eight jurors); defendant’s relationship with his children and younger sister (three jurors); defendant’s positive adjustment in prison (one juror); the precipitation of the murders by defendant’s brother (two jurors); and defendant’s notification to New York prison authorities about the New Jersey charges when his identity was unknown (nine jurors). Six mitigating factors were unanimously rejected: defendant’s age; his witnessing of domestic violence; his family members’ attitude about his dark skin color; blame for his brother’s misdeeds; defendant’s cooperation in his extradition to New Jersey; and any other factor relevant to his character or the offenses.
The jury concluded that the two aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Judgments of two capital convictions and two death warrants were filed on the same date.
On May 25, 2000, the trial court denied a motion for a new trial. The court merged Count Seven (conspiracy to murder McLean) into Count One (capital murder of McLean), Count Eight (conspir
II.
Asserted Guilt-Phase Errors
A. Failure to Prove Own-Conduct Murder
Defendant asserts a fundamental claim of error. He contends that the State failed to prove beyond a reasonable doubt that he murdered McLean and Mitchell by his own conduct, and therefore did not establish his eligibility for a capital sentence. Defendant points to the absence of direct evidence that any of the shots that killed either McLean or Mitchell were fired by defendant. The State’s case relied exclusively on Emil’s testimony, other evidence of a circumstantial nature retrieved at the scene of the shooting, and expert testimony.
After the jury reached its verdict in the guilt phase, defendant moved to dismiss his capital murder conviction. We note that the own-conduct issue was a matter of concern to the trial court and that defendant’s motion required the trial court to assess the sufficiency of the proofs. Nonetheless, after hearing oral argument on the motion, the court concluded that “the circumstantial evidence presented by the State was sufficient to create a reasonable inference that defendant was present at the apartment,
A motion for judgment of acquittal is governed by Rule 3:18-1, which states:
At the close of the State’s case or after the evidence of all parties has been closed, the court shall, on defendant’s motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.
[Rule 3:18-1.]
State v. Reyes, 50 N.J. 454, 236 A.2d 385 (1967), established that the general test to be applied when determining the sufficiency of evidence is
whether, viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[Id. at 459, 236 A.2d 385.]
The same standard or one substantially similar to that set forth in Reyes is common among the various states across the country. See, e.g., State v. Fulminante, 193 Ariz. 485, 975 P.2d 75, 82-84 (1999) (upholding capital conviction using similar standard after finding sufficient circumstantial evidence, taken as whole, to allow reasonable person to determine defendant’s guilt beyond reasonable doubt); People v. Kipp, 26 Cal.4th 1100, 113 Cal.Rptr.2d 27, 50-51, 33 P.3d 450 (2001) (upholding capital conviction for first-degree murder in commission of robbery after finding sufficient evidence to support robbery conviction using similar standard); People v. Williams, 193 Ill.2d 1, 249 Ill.Dec. 840, 737 N.E.2d 230, 243-44 (2000) (applying similar standard in capital murder case to assess sufficiency of evidence), cert. denied, 532 U.S. 996, 121 S.Ct. 1657, 149 L.Ed.2d 640 (2001); Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 499-501 (1997) (employing same standard to find sufficient circumstantial evidence to conclude that defendant had requisite malice aforethought and specific intent to kill to
The Reyes standard accords with the appellate standard for reviewing the sufficiency of evidence to support a criminal conviction that is set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that appellate standard of review, the relevant question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. See also State v. Martinez, 97 N.J. 567, 572, 483 A.2d 117 (1984) (following Jackson v. Virginia and holding that “the State’s right to the benefit of reasonable inferences cannot be used to reduce the State’s burden of establishing the essential elements of the offense charged beyond a reasonable doubt”). Thus, when reviewing a trial court’s determination on a motion for acquittal, the appellate tribunal must “consider the State’s proofs in light of the [Reyes ] standard and ... determine therefrom how the motion should have been decided.” State v. Gora, 148 N.J.Super. 582, 596, 372 A.2d 1335 (App.Div.), certif. denied, 74 N.J. 275, 377 A.2d 679 (1977). The approach is the same whether the evidence is direct or circumstantial. State v. Mayberry, 52 N.J. 413, 437, 245 A.2d 481 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969); State v. Franklin, 52 N.J. 386, 406, 245 A.2d 356 (1968); State v. Fiorello, 36 N.J. 80, 87, 174 A.2d 900 (1961) , cert. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962) . See also, State v. Taccetta, 301 N.J.Super. 227, 241, 693 A.2d 1229 (App.Div.1997) (stating “[ajppellate review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its duty” and citing State v. Butler, 32 N.J. 166, 195, 160 A.2d 8 (1960), cert. denied, 362 U.S. 984, 80 S.Ct. 1074, 4 L.Ed.2d 1019 (1960)). We therefore apply the Reyes standard to assess the sufficiency of the evidence to support
Defendant contests the reasonableness of a jury inferring from the evidence that he murdered McLean or Mitchell by his own conduct. According to defendant, the evidence “implicated Junior as the person who shot and killed McLean and Mitchell (as well as Christine Williams),” and only “pure speculation and conjecture” could lead to the conclusion that defendant took a direct and active role in the killings. There were no living witnesses to the murders. Only Emil saw someone attempt to fire a weapon, and that person was Junior, who shot at Emil with a nine millimeter handgun. Although the evidence established that defendant was still in the apartment and had been awake during the prior night talking with his brother, it is undisputed that at the time Emil jumped through the window to escape from Junior, defendant was neither in the room, nor were the other two guns, the .45 and the .357, in view. Therefore, defendant argues that an inference is required to conclude that defendant retrieved those weapons and used them to kill McLean and Mitchell after Emil fled. Other equal, or more plausible, inferences can be drawn, such as that Junior could have shot all three guns. Or, defendant may have assisted Junior only by retrieving the guns for Junior’s use. The latter scenario would support a conviction for accomplice murder, but not murder by own conduct. Moreover, that McLean was assaulted with a steam iron could indicate that he was attacked by someone who was unarmed. Defendant argues that the injuries resulting from the attack with the iron were non-lethal, and that the perpetrator would not necessarily have caused McLean’s death.
Defendant maintains that the State’s contentions about own conduct are as speculative as any offered by the defense. Even assuming Emil testified truthfully, that would not preclude the possibility that Junior fired two of the weapons (including the nine millimeter with which he shot at Emil). It is undisputed that Junior shot all three victims, because all victims were struck with
The State responds that ample evidence supports the convictions. The State points to testimony from the trial establishing that: defendant was in the apartment at the time of the murders; defendant and Junior were the only individuals who left the apartment after the murders; a downstairs neighbor heard two men hurriedly leave the apartment, one of whom referred to the other using defendant’s nickname, “Dee”; on the morning of the murders, the police chased a red Honda owned by defendant’s mother; a black man fled from the vehicle before the chase began, and the driver was missing from the vehicle when the police found it moments later crashed into a fire hydrant; another neighbor described the two men who left the apartment as wearing leather hats, like the one found in the Honda, and said that the men were black, in their late twenties, and “just a little bit taller than she was”; Emil heard two different sounding guns being fired at or about the same time; McLean and Mitchell, who each engaged in struggles before their deaths, were shot multiple times with different weapons; Williams, on the other hand, was shot only two times through the head with a nine millimeter, and she was found crouched in a corner of the bathroom; Mitchell was found in the hallway on top of a shower curtain indicating that his struggle started in the bathroom but concluded with his being shot in the hallway.
The State disputes that the evidence supports a reasonable inference that Junior was the sole shooter. Defendant must have
In addition, the State contends that the evidence presented at trial illuminated defendant’s probable motives: greed and revenge for being told to leave the apartment and the lucrative drug-distribution operation. That revenge would cause defendant to become physically violent was demonstrated the night before the murder when McLean had to wrestle a kitchen knife from him. The greed motive, on the other hand, was supported by the fact that a bloody footprint was found in the attic where, according to Emil, he had stored $36,000.
The State’s position on the sufficiency of the evidence is the better of the two. Of particular note is the forensic evidence. According to that testimony, which was not contradicted or impeached, Williams was killed by two nine millimeter gunshots to the head. Mitchell sustained four gunshot wounds: through the chest, the top of the forehead, the left cheek of his face, and the lower lip of his mouth. A projectile consistent with a nine millimeter bullet was found under Mitchell’s torso. Two .45 caliber projectiles were found under his head. The lead core of a nine millimeter projectile was in his hair near an exit wound, and its jacketing was in the wound. Thus, two different guns were used in his death, the shots of both contributing to his death.
Sergeant Burkhart, qualified as an expert in ballistics and firearms identification, established that all of the nine millimeter bullets had been fired from one gun, all the .45 caliber bullets had been fired from a second gun, and the .38 caliber bullet had been fired from a third gun, possibly a .357 revolver.
Emil’s testimony identified Junior as having the nine millimeter when Emil fled the apartment. He immediately encountered neighbors and both Emil and his neighbors heard shots at different intervals being fired within the apartment. Although arguably Emil’s testimony is self-serving, having been given in exchange for cooperation with the State, it was corroborated in significant ways by the testimony of what neighbors heard going on in the apartment after Emil had jumped from the kitchen window. Tussling and shots fired at different intervals were heard by various neighbors, and defendant’s nickname was heard being uttered by one of two men leaving the apartment thereafter.
Moreover, the fact that Williams was shot only with a nine millimeter suggests that two shooters were involved in the deaths of McLean and Mitchell — each of whom was shot not only with a nine millimeter, but also with one or two other guns. McLean, who was found down the hall in the bedroom, was shot at with three types of guns and bludgeoned with a steam iron. His struggle indicated that more than one perpetrator was involved in
We do not reweigh the evidence considered by the jury in our review. Appellate review serves to corroborate the absence of an injustice, taking care to ensure that the jury has not committed an obvious failure of duty. Mindful that we examine the sufficiency of the evidence by viewing it in its entirety and by giving the State the benefit of all reasonable inferences that can be drawn from the evidence in its favor, we conclude that the trial court did not err in denying defendant’s motion for judgment of acquittal based on a failure of proof. Accordingly, we reject this first and most fundamental challenge to whether the jury could have found defendant guilty of own-conduct murder.
B. Sequential Instruction to Jury on Own-Conduct Murder and Accomplice Liability
Defendant contends that the trial court erred in the sequential instructions to the jury on own-conduct murder and accomplice
After explaining the meaning of purposeful or knowing murder, the court instructed the jurors that if they found defendant guilty of murdering either Leon Mitchell or Barrington McLean, or both, they were then to consider whether he did so by his own conduct.
The court explained •
The phrase by his own conduct means that Daron Josephs caused the death or serious bodily injury resulting in the death of the decedents in either of two ways. One, that Daron Josephs inflicted bullet wounds which caused the death or serious bodily injury resulting in the death of the decedents McLean and/or Mitchell or inflicted a combination of bullet wounds or blunt instrument blows to the head which caused the death or serious bodily injury resulting in the death of McLean. Or, two, that Daron Josephs along with Hugh Josephs inflicted bullet wounds upon Leon Mitchell or inflicted bullet wounds or combined bullet wounds and blunt force wounds upon the head of Barrington McLean which caused the death or serious bodily injury resulting in the death of one or more of the decedents. And when he did so it was Daron Josephs’ purpose that the decedents or either of them should die or suffer serious bodily injury by his own conduct. Or he was aware that it was practically certain that his conduct would cause death or serious bodily injury. If you find that the death of the decedents or the serious bodily injury resulting in the death of the decedent was caused by a combination of wounds inflicted either by Daron Josephs and Hugh Josephs, Jr., acting in concert, and you further find that Daron Josephs when he inflicted those wounds had the purpose to kill or cause serious bodily injury or that he knew that the wounds he inflicted were practically certain to lead to death or serious bodily injury, then you may find Daron Josephs guilty of murder by his own conduct.
The relevant inquiry is whether or not Daron Josephs actively and directly participated in the homicidal act; that is, in the infliction of the injuries from which the victims died or from which they suffered serious bodily injury resulting in death.
If you find that Daron Josephs merely inflicted some minor injuries to the decedents and those wounds did not contribute in any substantial way to the death of the victims, then his acts could not be said to have caused the death of the decedents by his conduct.
In this case there are a number of different legal routes by which you could arrive at a conviction. The routes chosen, if there is a conviction, depends on what you find the facts to be. Generally we ask a jury only if a defendant has been found guilty of a crime. We do not inquire if the jury considers the defendant who they convict to be what we call a principal or an accomplice or a co-conspirator. However, the practice is different when, as here, one of the charges is murder. If the jury convicts the defendant of murder in such a case, I then must ask if the jury unanimously and beyond a reasonable doubt finds two things. One, that the defendant committed a purposeful or knowing murder; and, two, that the defendant committed the fatal act by his own conduct____
It is permissible for a jury to find a person guilty of a murder if some jurors see the person as the- principal while others see him as an accomplice. What is essential is that each juror be satisfied in his or her own mind that all of the elements necessary to establish guilt under the theory upon which the individual juror convicts has been proven beyond a reasonable doubt.
A conviction of purposeful or knowing murder or any other kind of murder under these circumstances is perfectly proper. However, under our law a person is guilty of murder by his own conduct only if all 12 jurors find unanimously and beyond a reasonable doubt or both, one, that the defendant committed a purposeful and knowing murder; and, two, that he did so as a principal, not as an accomplice. And you’ll be given a verdict sheet which is designed to capture that information. And if I might make a suggestion. You may find it convenient to first decide if all 12 jurors agree whether the defendant is guilty of murder. If the jury does so agree, then you should decide if the jurors individually and unanimously agree that it has been proven beyond a reasonable doubt that the defendant committed a purposeful or knowing murder as a principal; that is, by his own conduct. However, the order in which you consider these questions in your deliberations is entirely your own decision.
During a recess, counsel for defendant objected to the court’s instructions on the ground that there was no evidence in the record to support a finding that defendant committed murder by his own conduct without the assistance of Junior. In addition, defendant contended that the court’s charge on own-conduct murder was “premature” because the jurors had not been told the meaning of accomplice liability and so might presume that it applied to any “concerted action” between multiple defendants. Counsel requested that the court clarify for the jury that the “first issue before them ... is to determine whether Daron Josephs is guilty of murder; whether it’s by direct responsibility as a principal or as [an] accomplice and that it doesn’t matter if they
Upon return from break, the court instructed the jurors that “whether Daron Josephs was a principal depends upon your answers to certain questions:”
Let’s take Barrington McLean first. First, did Daron Josephs shoot or wound Barrington McLean with a blunt instrument? Two, if so, what did he have in mind when he shot and/or wounded Barrington McLean with this instrument? Three, did the wounds he inflicted contribute in some substantial way to the death of Barrington McLean or cause serious bodily injuries that resulted in his death? As to Leon Mitchell, ask yourselves, one, did Daron Josephs shoot Leon Mitchell? Two, if so, what did he have in mind when he shot Leon Mitchell? Three, did the wounds he inflicted contribute in any substantial way to Mr. Mitchell’s death or cause serious bodily injuries that resulted in his death?
Now, if you’re satisfied beyond a reasonable doubt that the answers to the first question as to any of the decedents is in the affirmative, you’ll then address his state of mind when he did so. Was his purpose to kill or inflict serious bodily injury that resulted in death? Was he aware that his conduct was practically certain to cause death? You then ask the question if the wounds inflicted by Daron Josephs contributed in some substantial way to the death of the decedents. If Daron Josephs did inflict wounds which contributed to the death of the decedents in a substantial way, and he did so with the purpose to kill or to inflict serious bodily injuries resulting in death, or with knowledge that his conduct was practically certain to kill, he’s guilty of a purposeful and knowing murder as a principal; that is, the acts would be by his own conduct.
The court then instructed the jurors that if they found that defendant injured the victims but did not do so purposefully or knowingly, it would then have to determine whether he committed aggravated manslaughter or manslaughter.
After the above instruction, the court charged the jury on accomplice liability:
Should you find that it has not been proven beyond a reasonable doubt that Daron Josephs inflicted the wound that caused the death of the decedents, then you shall consider if Daron Josephs should be held liable as an accomplice. Of course, I’m assuming that if you consider this question you would have found that Hugh Josephs inflicted the wounds that lead to the death of the decedents. If Daron Josephs is guilty as an accomplice of Hugh Josephs, Jr., then you face the question of what crime he had committed and this brings us to a discussion of the law regarding accomplices.
*90 A person is guilty — strike that. A person is an accomplice in the commission of an offense if with the purpose of promoting or facilitating the commission of the crime he (a), solicits such other person to commit it; or (b), he aids or agrees or attempts to aid such other person in planning.or committing the crime----
In order to find Daron Josephs guilty of committing the crime of murder as an accomplice of Hugh Josephs, the following elements must be proven beyond a reasonable doubt, (a), that Hugh Josephs, Jr. committed the crime of murder. And (b), that Daron Josephs aided him in planning or committing the murder. Or agreed to aid or attempted to aid him in planning or committing the murder. Or solicited him to commit the murder. And (c), that Daron Josephs purpose was to promote or facilitate the commission of the offense. And (d), that Daron Josephs possessed the same criminal state of mind that’s required to be proven against the person who actually committed the murder____
If you find that Daron Josephs with the purpose of promoting or facilitating the commission of the crime of murder solicited Hugh Josephs, Jr. to commit murder or aided or agreed to aid or attempted to aid him in planning or committing murder, then you should find him guilty of murder as an accomplice and not by his own conduct.
Remember, if you find Daron Josephs guilty of murder as an accomplice, you cannot find him guilty of murder by his own conduct____
Should you find that it has not been proven beyond a reasonable doubt that Daron Josephs inflicted the wound upon the decedents, but that Hugh Josephs, Jr. alone inflicted the wounds, you must consider whether Daron Josephs is guilty as an accomplice to murder. He would be deemed to be an accomplice if you find he aided Hugh Josephs, Jr. in committing the crimes and if, when he did so, he had the purpose to aid or assist Hugh Josephs, Jr. in -the commission of a crime of murder.
Later, the court instructed the jury that if it found that the State failed to prove defendant inflicted the wounds that caused death, it still had to determine whether he was guilty as an accomplice. The court explained to the jury that it could find an accomplice guilty of a lesser degree of offense than was actually committed by the principal depending on the accomplice’s state of mind. Finally, when discussing conspirator liability, the court repeated that “these questions only come up if you decide that the evidence does not establish beyond a reasonable doubt that Daron Josephs inflicted wounds which contributed in any substantial way to the. death of the decedents.”
Defense counsel again objected to that portion of the instructions that “suggested the order of deliberation by saying well, you won’t have to consider this if you consider by your own conduct
implie[d] that you have this murder by your own conduct and then accomplice murder. And in terms of unanimity we know you can have [a] unanimous verdict of murder where some people believe it’s accomplice and some people believe it’s by your own conduct. And so it’s not really necessary that they kind of conclude that it’s not one thing before they consider it’s another thing. It really suggests a manner of deliberation and unanimity that’s not really appropriate.
Counsel requested the court to instruct the jurors that they can deliberate in any order they choose and can split on whether defendant committed murder by his own conduct or as an accomplice. Counsel also suggested that when handing out the verdict sheets the court could explain the jury’s options in respect of own conduct and accomplice liability.
Following another break, the court instructed the jury that unanimity was required to convict defendant of all offenses except own-conduct murder, where a non-unanimous verdict was permissible. In reference to the verdict sheets, the court instructed the jurors that in respect of each victim they were to cheek off first whether defendant was guilty of murder and then check off whether they unanimously agreed that defendant committed murder by his own conduct. No mention was made of the possibility of accomplice liability.
In reviewing this claim of error, we begin with the requirement, fundamental to the assurance of a fair trial, that the trial court ensure that jury deliberations are based solely on the evidence and in accordance with proper and adequate jury instructions. State v. Purnell, 126 N.J. 518, 531, 601 A.2d 175 (1992). A trial court must “make absolutely certain the jury is aware, not simply of the consequences of its actions, but of its total responsibility for the judgment.” State v. Ramseur, 106 N.J. 123, 316, 524 A.2d 188 (1987). In furtherance of the trial court’s responsibility, it is not uncommon for the trial court to suggest an order of
Here, the presentation of the own-conduct murder charge and the accomplice-liability charge, and the relationship between the two, is of critical importance. N.J.S.A. 2C:ll-3(c) renders death eligible those defendants who commit purposeful or knowing murder by their own conduct or who hire others to do the same. The own-conduct requirement is not an element of purposeful or knowing murder; it is the triggering device for the death penalty phase of the trial. State v. Gerald, 113 N.J. 40, 99, 549 A.2d 792 (1988). The jury must be satisfied unanimously and beyond a reasonable doubt that the defendant committed murder by his or her own conduct in order to proceed to the penalty phase. State v. Brown, 138 N.J. 481, 511, 651 A.2d 19 (1994). In contrast, even if the jury disagrees about whether the defendant committed murder by his own conduct or as an accomplice, it may still find the defendant guilty of murder. Id. at 527, 651 A.2d 19. The consequence of that disagreement is that the jury’s decision will “constitute[ ] a final verdict that results in the imposition of a sentence .of imprisonment.” Id. at 511, 651 A.2d 19. Thus, because the principal and accomplice are equally guilty of purposeful or knowing murder under New Jersey’s statutory scheme, accomplice-liability murder constitutes an alternative, not a lesser-included form of murder. State v. Mejia, 141 N.J. 475, 485, 662 A.2d 308 (1995).
As the Court in Feaster explained:
In capital cases that present a jury question whether a defendant is guilty of death-eligible own-conduct murder or accomplice-liability murder, the trial court, after instructing the jury on the requisite elements of the charged offenses, should instruct the jury first to determine whether the defendant is guilty of purposeful- or-knowing murder. See Gerald, supra, 113 N.J. at 100, 549 A.2d 792. The jury should be instructed that only if it unanimously reaches a guilly verdict on that offense should it then determine whether the defendant committed the murder “by his own conduct” or, alternatively, as an accomplice, the charge emphasizing that because those alternatives are mutually exclusive the jury should consider them*94 simultaneously. During the course of its instructions, the court should make clear to the jury that it need not be unanimous on the own-conduct determination, and it must inform the jury of the legal consequences of its own-conduct finding.
[Feaster, supra, 156 N.J. at 42, 716 A.2d 395.]
The jury’s initial determination of guilt or innocence on the charge of purposeful or knowing murder is not intended “to resolve whether the defendant acted as principal or accomplice.” Ibid. Instead, “[ojnly subsequent to a guilty verdict of purposeful-or-knowing murder will the jury specifically consider what form of murder — accomplice-liability or own-conduct — supports the murder conviction.” Id. at 42-43, 716 A.2d 395. Applying that holding to the facts before it, the Court concluded that the trial court erred by instructing the jury to consider accomplice liability after it rejected own-conduct murder. Id. at 40-41, 716 A.2d 395. The Court stated:
[T]he instructions improperly focused the jury’s attention on the State’s theory of the case and “had the potential to foreclose jury consideration,” Coyle, supra, 119 N.J. at 222, 574 A.2d 951, of the non-death-eligible alternative. Moreover, the sequential instructions, standing alone, effectively required the jury to reject own-conduct murder in order to reach accomplice liability. That framework contravened our holding in Brown, supra, 138 N.J. at 509-22, 651 A.2d 19, that the own-conduct determination may be nonunanimous, in which event the penalty phase would be avoided.
[Id. at 40, 716 A.2d 395.]
Ultimately, it was determined that the error was harmless for two reasons. Ibid. First, counsel failed to object at trial, indicating “a trial strategy aimed at avoiding a compromise verdict and securing a complete acquittal for defendant.” Id. at 41, 716 A.2d 395. Second, because the victim died as a result of a single shotgun wound, the facts rendered resolution of the own-conduct question essentially equivalent to rejection of an accomplice liability theory. Id. at 40, 716 A.2d 395.
The prejudicial capacity of a sequential charge depends always on the “ ‘circumstances of the case.’ ” Mejia, supra, 141 N.J. at 484, 662 A.2d 308 (quoting Zola, supra, 112 N.J. at 406, 548 A.2d 1022). Here, unlike in Feaster, defendant objected to the sequential jury instructions. Therefore, the applicable
Because the charge placed such emphasis upon the determination of own-conduct murder, including the repeated references to deciding own conduct responsibility before deciding accomplice liability, it is improbable that the jury understood that it could decide those issues in whatever order it saw fit. Unlike the situation in Feaster, the sequential instructions in this ease were highly likely to have affected the jury’s deliberations. As noted earlier, Feaster did not have a co-defendant and he admitted to being the triggerman, so accomplice liability was not a feasible theory in that case.
Here, there were two defendants and three guns. Accomplice liability was a very viable theory for defendant. If the jury followed the suggestions of the trial court, however, it might not have even considered accomplice liability until after it decided on own-conduct murder. That risk creates an unmitigated flaw in the reliability of the jury’s verdict.
If defendant is to be found guilty of purposeful or knowing murder by his own conduct, we must have confidence that the jury understood the availability of an accomplice-liability theory, and instead unanimously chose the own-conduct theory. We have no reason to be confident of that here, either from the charge to the jury, considered in its totality, or from the facts of the case, as in Feaster. Indeed, as the discussion of the prior issue reveals, although the jury reasonably could infer from the evidence and testimony that defendant engaged in murder by his own conduct, it also would have been possible for' the jury to fail to find unanimously that defendant committed the murders by his own conduct — and not as an accomplice.
Thus, it was critically important for the jury to have understood its options as it deliberated through the various choices it had to make with regard to defendant’s role in the deaths of McLean and Mitchell. Of equal importance is that on review we can be confident that defendant was found unanimously guilty of own-
On the determination of own-conduct murder hinged defendant’s death eligibility. By no means can an error in the determination of own-conduct murder on these facts be deemed inconsequential. We conclude that this error in the sequential instructions to the jury on own-conduct murder and accomplice liability constitutes error that is not harmless, and that it requires reversal of the jury determination of death eligibility. Brown, supra, 138 N.J. at 526-27, 651 A.2d 19. The erroneous instruction does not affect defendant’s murder convictions, however, because the jury could have convicted him of the murders notwithstanding a disagreement about whether he committed them by his own conduct or as an accomplice. Id. at 527, 651 A.2d 19.
C. Other Alleged Guilt-Phase Instruction Errors
Although we are reversing defendant’s death sentence on the basis of the sequential instruction error, we review nonetheless defendant’s other contentions of error. With regard to his guilt trial, defendant’s remaining contentions concern aspects of the instructions to the jury.
1. Instruction on Serious-Bodily-Injury Murder
Defendant asserts that the court erred by instructing the jury that it could find him guilty of murdering McLean by his own conduct even if he was responsible only for inflicting the blunt force injuries. According to defendant, the medical examiner’s testimony was insufficient to prove that blunt force injuries were a
To address this issue, we turn first, as we must, to the controlling statute. N.J.S.A. 2C:ll-3c provides, in pertinent part, that “[a]ny person convicted under [N.J.S.A 2C:ll-3a(l) or (2) ] who committed the homicidal act by his own conduct; or who as an accomplice procured the commission of the offense by payment or promise' of payment of anything of pecuniary value ... shall be sentenced” in accordance with the Act’s capital punishment provisions. N.J.S.A 2C:ll-3c (emphasis added). In Gerald, supra, 113 N.J. at 96, 549 A.2d 792, we considered the meaning of the “own conduct” provision of N.J.S.A. 2C:ll-3c. There, the victim’s death was caused by blunt-force injuries to the head, inflicted by blows of the fists and feet from multiple persons. Id. at 50, 549 A.2d 792. Because the expert testifying was unable to isolate who administered the fatal blows, the defendant argued that he was not death eligible. Id. at 92-93, 549 A.2d 792. That argument was rejected, the Court holding that to find a defendant guilty of own-conduct murder, the pertinent jury determination must be that “the defendant actively and directly participated in the homicidal act, that is, in the infliction of injuries from which the victim died.” Id. at 97, 549 A.2d 792.
In this ease, we are satisfied that the court properly instructed the jury that it could find defendant guilty of murdering McLean by his own conduct even if he was responsible only for inflicting the blunt-force injuries. Dr. Catherman testified that, “to some extent, although small,” the four blunL-force injuries to McLean’s head contributed to his death in combination with the six gunshot wounds. Undoubtedly, that testimony did not prove that the blunt-force injuries were the exclusive, or even the primary, cause of McLean’s death. However, all that was necessary was that the
In any event, any error here was harmless. Because defendant also was found guilty of murdering Mitchell, who suffered only from gunshot wounds, the jury must have concluded that defendant possessed a gun. Moreover, Mitchell was shot with the .45 caliber gun and the nine millimeter gun; because Emil testified that Junior shot at him with the latter weapon, the jury must have found that defendant used the former. Not coincidentally, McLean also was shot with the .45 caliber gun. It is logical, then, that the jury concluded that defendant shot McLean with the .45 caliber gun.
Defendant further contends that the trial court committed error by charging the jury that it could find him guilty of serious-bodily-injury murder if he intended to seriously injure McLean, but was unaware that the injuries were likely to result in death, in contravention of our holding in Cruz, supra, 163 N.J. at 417-18, 749 A.2d 832. Because defendant failed to raise an objection to the charge at the time the charge was given, we review defendant’s claim under the plain error standard. State v. Hock, 54 N.J. 526, 538, 257 A.2d 699 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970) (stating that jury charge will qualify as plain error if there is “legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result”).
Concerning the applicable mental states, the court stated that “[a] person who causes another’s death does so purposely when it is the person’s conscious object to cause death,” and that “[a] person who causes another’s death does so knowingly when the person is aware that it is practically certain that his conduct will cause death.” With respect to murder by one’s own conduct, the jury was instructed that it had to find that defendant, acting with the requisite mental state, inflicted the bullet wounds and/or the blunt instrument wounds that caused the death or serious bodily injury resulting in the death of McLean or committed the same along with Junior. If the jury found only that defendant “inflicted some minor injuries to the decedents and those wounds did not contribute in any substantial way to the death of the victims,” then it could not convict him of murder by his own conduct because he did not cause the death of the victims.
Again, we turn to the statutory language. “Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily mem
Here, the court charged the jurors on purposeful or knowing infliction of serious bodily injury, but failed to instruct them that they must find that defendant had knowledge that the injury created a substantial risk of death. Although the trial court did not specifically instruct the jurors that they could not convict defendant of serious-bodily-injury murder unless they found that defendant knew the injury created a substantial risk of death, and knew it was highly probable that death would result, we find that the court’s instructions, considered as a whole, achieved the same result. The trial court did define “serious bodily injury” as “bodily injury which creates a substantial risk of death.”
Further, there is no reasonable likelihood that defendant was prejudiced by the alleged deficiency in the serious-bodily-injury instructions. As. noted earlier, logic dictates that the jury convicted defendant of the murders of both McLean and Mitchell because it found that he was the shooter of the .45 caliber gun. Consistent with this Court’s prior decisions, the jury was instructed that if it found that defendant used a deadly weapon such as a firearm in committing the murders, it could draw an inference that he had the intent to kill. See generally State v. Martini, 131 N.J. 176, 269-72, 619 A.2d 1208 (1993), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed.2d 137 (1995) (approving of that instruction); Simon, supra, 161 N.J. at 450, 737 A.2d 1 (noting that “common
2. Additional Asserted Instruction Errors
Defendant’s final contentions concern the denial of his request for a charge on self-defense, defense of others, and the lesser-included offense of passion/provoeation manslaughter. The trial court declined to give those charges because they were unsupported in the record.
a. Self-Defense/Defense of Others
The use of force against another in self-defense is justified “when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” N.J.S.A. 2C:3-4a. Self-defense requires an actual, honest, and reasonable belief by the defendant of the necessity of using force. State v. Kelly, 97 N.J. 178, 198-99, 478 A.2d 364 (1984). The reasonableness of the defendant’s belief is determined by the jury, using an objective standard of what a reasonable person in the defendant’s position would have done at the time the force was used. Id. at 199-200, 478 A.2d 364. The jury is not required to find beyond a reasonable doubt that the
For a defense of others charge, it must be shown that “the use of force upon or toward the person of another is justifiable to protect a third person when ... [t]he actor would be justified under section 2C:3-4 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect.” N.J.S.A. 2C:3-5a(l). The defense is applicable if the defendant reasonably believed “that the person he sought to aid was unlawfully attacked and that the force used was necessary to protect the person from the attack.” State v. Bryant, 288 N.J.Super. 27, 35, 671 A.2d 1058 (App.Div.), certif. denied, 144 N.J. 589, 677 A.2d 761 (1996). Similar to the self-defense doctrine, the trial court is required to instruct on defense of another if there is a rational basis in the record to support it. State v. Doss, 310 N.J.Super. 450, 458-60, 708 A.2d 1219 (App.Div.), certif. denied, 155 N.J. 589, 715 A.2d 992 (1998).
To support his claim to the charges, defendant cites to several parts of the record: Emil's testimony that tensions had been mounting in the apartment; the testimony of Fonceta Young and Joyce Poole, the two neighbors who heard “thumping” noises and who thought that “some guys” in the apartment were “wrestling,” “playing around,” or fighting before the shootings occurred; and the fact that McLean had been beaten with a steam iron before he was shot as indicating that McLean either threatened or attacked defendant causing defendant to pick up the iron and use it in self-defense.
Defendant’s recitation of the evidence would require a jury to make several inferences: that the sounds heard by the neighbors were fights, that one of the victims was the aggressor, that defendant was provoked into attacking the victim, and finally that
b. Passion/Provocation
Defendant’s contention concerning the trial court’s denial of a passion/provocation manslaughter charge suffers from similar infirmities. Murder is reduced , to manslaughter if the murder is committed in the heat of passion in response to a reasonable provocation. N.J.S.A. 2C:ll-4b(2). Passion/provocation manslaughter has four elements: (1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying. State v. Mauricio, 117 N.J. 402, 411, 568 A.2d 879 (1990). The first two elements of the offense are objective; thus, if they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury. State v. Robinson, 136 N.J. 476, 491, 643 A.2d 591 (1994).
In support of the passion/provocation manslaughter claim, defendant theorizes that based on the neighbors’ testimony of possible wrestling or fighting before the shootings, a fight broke out between defendant and Junior and the victims after Junior attempted to shoot Emil. Under that version of events, defendant claims he had little time to cool off as a result of the provocation. Further, defendant submits that Emil, McLean, or Mitchell may have threatened defendant with a weapon, which also would have added to the adequacy of the provocation.
Although mutual combat may constitute adequate provocation, State v. Crisantos, 102 N.J. 265, 274, 508 A.2d 167 (1986), defendant’s suggestions of “mutual” combat are nothing more than rank speculation and are unsupported by the record. We find no basis on which to overturn the trial court’s refusal to give a
D. Guilt-Phase Voir Dire Inadequacy
Finally, we note that defendant argues that the jury voir dire for the guilt-phase proceedings was inadequate in several respects. Specifically, defendant maintains that the trial court erred by failing to ask prospective jurors whether they would accept the principles of presumption of innocence and reasonable doubt. Defendant argues that such inquiries are essential to determine whether the prospective jurors would hold the State to its burden of proof during deliberations.
Jury.fairness and impartiality takes on added significance in capital cases. State v. Williams, 93 N.J. 39, 61, 459 A.2d 641 (1983) (Williams I). We have emphasized the importance of the voir dire examination of prospective jurors to reveal potential and latent biases. State v. Williams, 113 N.J. 393, 409-10, 550 A.2d 1172 (1988) (Williams II). However, trial courts are allowed broad discretion to assess the qualification of jurors, the exercise of which “will ordinarily not be disturbed on appeal.” State v. Jackson, 43 N.J. 148, 160, 203 A.2d 1 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965); Ramseur, supra, 106 N.J. at 256-57, 524 A.2d 188 (“Of necessity, a sound measure of discretion must be reposed in our trial courts to determine whether a given juror can well and truly discharge the grave responsibility entrusted.”).
Two of defendant’s proposed questions were rejected by the trial court. The first pertained to the prospective juror’s ability to presume defendant’s innocence despite the fact that defendant had been charged with three murders. The second question focused on the juror’s ability to hold the prosecution to its burden of proof even if the juror personally believed that defendant was guilty. The trial court declined to present those questions because presumption of innocence and burden of proof would be adequately addressed in the court’s jury instructions and in the court’s
The trial court instructed the assembled prospective jurors and the jury selected on the presumption of innocence and the burden of proof. The court also probed each juror concerning whether he or she would have difficulty setting aside personal feelings in a ease involving three murders. When one prospective juror indicated that he would hold it against defendant if he elected not to testify, the court asked whether he could not set aside that bias in light of the court’s instructions on the defendant’s right not to testify and the State’s burden of proof beyond a reasonable doubt. When the juror responded that he would hold defendant’s failure not to testify against defendant “if it was close,” the court promptly excused the juror.
Based on an examination of the record, we find no abuse of discretion in the trial court’s rejection of defendant’s request to question individually prospective guilt-phase jurors on their willingness to accept the presumption of innocence and the State’s burden of proving guilt beyond reasonable doubt. Although we encourage trial courts to be “sensitive to permitting attorneys to conduct some voir dire,” State v. Biegenwald, 106 N.J. 13, 30, 524 A.2d 130 (1987), we note here that the trial court adopted the majority of the voir dire questions submitted by defendant. The decision to omit two of eight questions was well within the trial court’s discretion. Further, the instructions to the prospective jurors and the deliberating jurors were sufficient to ensure that the jury was impartial and could follow the law as charged.
III.
Penalty-Phase Errors
Defendant asserts error in the selection of the penalty-phase jury, in the conduct of the penalty trial, in the jury charge during
A. Penalty-Phase Jury Selection
1. Reference to Appellate Process
Defendant contends that the prosecutor improperly diminished Juror Robert Bighan’s sense of responsibility as a penalty-phase juror by providing assurance that the jury’s verdict would be reviewed on appeal. The prosecutor explained to Bighan that the appellate process would be long and thorough, and asked him directly whether that information comforted him'. Defendant disputes the State’s assertion that the prosecutor’s comments were invited by the juror’s comments on the State of Illinois’ death sentence moratorium and concern about the risk of executing innocent people. According to defendant, the juror merely expressed a general concern about the death penalty that was unworthy of the highly specific response given by the prosecutor. Further, defendant contends that the trial court’s curative instruction increased the risk of prejudice. Instead of simply ordering the juror to disregard the prosecutor’s remarks, the trial court told the jury that what was said about the appellate process was “absolutely correct.”
In Williams II, this Court emphasized the need for a “thorough and searching inquiry” into the jurors’ attitudes on the death penalty. 113 N.J. at 413, 550 A.2d 1172. That inquiry is necessary given the “important, delicate, and complex nature of the death qualification process.” Ibid. This Court also observed in Ramseur that trial courts must be accorded “a sound measure of discretion” in determining whether a juror’s death penalty views would prevent or substantially interfere with the juror’s performance of his or her duties. Supra, 106 N.J. at 256, 524 A.2d 188. However, as part of that delicate interaction with
The United States Supreme Court in Caldwell v. Mississippi considered the validity of a capital sentence after the prosecutor urged the jury to refrain from viewing its role as determining whether the defendant would die because the state Supreme Court would review the correctness of the death sentence. 472 U.S. 320, 323, 105 S.Ct. 2633, 2635, 86 L.Ed.2d 231, 235-36 (1985). The Court overturned the death sentence, stating that “[bjecause we cannot say that [the State’s effort to minimize the jury’s sense of responsibility for determining the appropriateness of death] had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.” Id. at 341, 105 S.Ct. at 2646, 86 L.Ed.2d at 247.
The holding in Caldwell was refined later to prohibit only those remarks “that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U.S. 168, 183 n. 15, 106 S.Ct. 2464, 2472 n. 15, 91 L.Ed.2d 144, 158-59 n. 15 (1986); see also Romano v. Oklahoma, 512 U.S. 1, 8, 114 S.Ct. 2004, 2009, 129 L.Ed.2d 1, 11 (1994) (noting Justice O’Connor’s concurring opinion in Caldwell narrowing scope of holding); State v. Koskovich, 168 N.J. 448, 536, 776 A.2d 144 (2001) (stating that “[l]ike the United States Supreme Court, we also assume that capital-sentencing jurors recognize the gravity and significance of their responsibility”). Thus, to establish a Caldwell violation, the defendant has the burden of showing that the remarks to the jury on the death penalty improperly described the role assigned to them under state law. Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 1215, 103 L.Ed.2d 435, 443 (1989).
The responsibility borne by a sentencing jury is grave and the jury’s perception of its signal responsibility to determine whether to impose the death penalty cannot be lightened. It is the difficult judgment that each juror must face. No dilution of the jury’s singular role can be allowed to dull an individual juror’s comprehension of that responsibility. Our review of the record in this matter persuades us that the prosecutor’s statement did tend to minimize Bighan’s sense of responsibility. For the prosecutor to have suggested that the appellate process would take care of Bighan’s concern about “the execution of innocents” was improper and had the capacity to mislead. It could have left Bighan with a lessened sense of responsibility for his role as a juror because it. assured him that a “higher” authority would act as a check on the correctness of a jury verdict of death. That was an impermissible suggestion for the prosecutor to convey. The risk that Bighan would take that misapprehension with him into deliberations was not ameliorated when the court informed him that the prosecutor’s comments were “absolutely correct.”
2. Excusal of Juror Based on Views on Death Penalty
Defendant contends that the trial court erred in excusing for cause penalty-phase juror Rebecca Pierson because she could not say explicitly whether she would be willing to vote to impose the death penalty.
The test for determining when it is proper to excuse a prospective juror for cause based on the juror’s death penalty views is the same under the New Jersey Constitution as it is under the United States Constitution: a juror may not be excused for cause based on his or her views on capital punishment “ ‘unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Ramseur, supra, 106 N.J. at 255, 524 A.2d 188 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2523, 65 L.Ed.2d 581, 589 (1980)). While the “standard does not require that a juror’s bias be proven with unmistakable clarity,” it also does not require a “conscientious juror to state with the same clarity a willingness to convict in a case that has not yet been heard.” Ramseur, supra, 106 N.J. at 256-57, 524 A.2d 188. Thus, the trial court must conduct a sensitive appraisal of the juror’s beliefs and opinions to determine if they would substantially interfere with the juror’s performance of his or her duties.
Here, Juror Pierson vacillated concerning her ability to impose the death penalty. Although not philosophically or religiously opposed to the death penalty, she equivocated concerning her
We are fully satisfied that the trial court did not abuse its discretion in excusing Juror Pierson. The trial court conducted a thorough and thoughtful voir dire examination of Juror Pierson’s ability to perform the function as a penalty-phase juror in a capital murder trial. After reviewing the record and the extensive probing conducted by the trial court into Juror Pierson’s beliefs and opinions, we are satisfied that Juror Pierson’s honest and profound uncertainty concerning her ability to vote for the death penalty, even if the aggravating factors outweighed the mitigating factors, rendered her unable to serve as a capital juror. Therefore, the trial court’s dismissal of Juror Pierson constituted an appropriate exercise of its discretion.
B. Conduct of Penalty-Phase Trial
1. Failure to Prove Aggravating Factor 4(g)
Defendant contends that the trial court erred in instructing the penalty-phase jury that it was required to accept the murder verdicts of the guilt-phase jury in its deliberations on the 4(g)— murder in the course of murder — aggravating factor. In support, defendant cites to the death penalty statute, which states that
To impose the death penalty, the jury must find that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. Bey II, supra, 112 N.J. at 158-59, 548 A.2d 887. This Court has declared that a trial is constitutionally defective if “the State is not required to prove, over the defendant’s objection, the essential elements of the offense charged. The requirement is so basic and fundamental that it admits of no exception no matter how inconsequential the circumstances.” State v. Vick, 117 N.J. 288, 293, 566 A.2d 531 (1989) (holding trial court committed reversible error for failing to instruct jury on State’s burden to prove that defendant did not have permit for handgun found in his possession).
The necessity of a jury’s reconsideration of the elements of a crime established during an earlier portion of a bifurcated trial was recognized in State v. Ragland, 105 N.J. 189, 519 A.2d 1361 (1986). In Ragland, the jury convicted the defendant of several offenses, including unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5. Id. at 192, 519 A.2d 1361. Another charge, possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7, was severed to avoid prejudice, but was tried before the same jury. Ibid. Before the jury deliberated on the severed count, the trial court instructed the jury that: “[i]f you find that the defendant ... was previously convicted for the crime of robbery and that he was in possession of a sawed-off shotgun, as you have indicated ... then you must find him guilty as charged by this Court.” Ibid. That jury instruction had the effect of directing a guilty verdict on the possession of a weapon by a convicted felon charge. Id. at 193, 519 A.2d 1361. The Court held that it is “essential ... that the jury be instructed in no uncertain terms to consider anew
The sole function of a penalty-phase jury is to determine the appropriate sentence, and the evidence presented by the State need only be relevant to that issue and not to a defendant’s guilt. Biegenwald, supra, 106 N.J. at 71, 524 A.2d 130. However, the distinct nature of the penalty phase allows the jury to “reach conclusions concerning aggravating factors and mitigating factors different from and inconsistent with the findings at the original sentencing proceeding.” Id. at 72, 524 A.2d 130. Further, although the “defendant may lose whatever advantage inheres in the ‘residual doubts’ that the original jury may have had regarding defendant's guilt, the State may also lose whatever ‘advantage’ inheres in the emotional impact that often surrounds the initial guilt phase.” Id. at 71, 524 A.2d 130 (citation omitted).
That proposition served in part as a basis for our decision in State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991), where we held that the State’s burden at the penalty phase remains even when an aggravating factor duplicates an element of a crime found by the jury during the guilt phase. Id. at 138-39, 586 A.2d 85. The aggravating factor alleged, namely that the defendant procured the commission of the offense by payment or promise of payment, was analogous to an element of the crime for which he was convicted during the guilt phase of the trial. Id. at 138, 586 A.2d 85. The defendant argued that by not instructing the jurors to disregard their former factual finding and “deliberate anew,” the trial court allowed a directed verdict on the aggravating factor in contravention of Ragland. Id. at 138-39, 586 A.2d 85 (citing to Ragland, supra, 105 N.J. at 195-96, 519 A.2d 1361).
Marshall held that penalty-phase jurors are not bound by findings of fact made by guilt-phase jurors. Id. at 139, 586 A.2d 85. Because the guilt and sentencing phases are separate proceedings under the Capital Punishment Act, a trial court should instruct a penalty-phase jury “of its duty to deliberate anew concerning any facts established by the verdict in the guilt-phase
The Court’s holding in Marshall is reflected in the model jury charge on the 4(e) aggravating factor — that the defendant procured the commission of the offense by payment or promise of payment of anything of pecuniary value. When the guilt-phase jury finds that the defendant procured a murder by payment or promise of payment, the trial court must instruct the penalty-phase jury to deliberate anew:
While you have already determined that the defendant procured the commission of the murder by payment or promise of payment of anything of pecuniary value during the guilt phase of the trial, that finding is insufficient for this sentencing proceeding. That is so because the guilt and sentencing phases are considered as separate proceedings. Therefore, you must deliberate anew regarding any facts established by your verdict in the guilt phase determination that the State relies on to prove an aggravating factor, and you have the right to reach a different conclusion about such facts in the penalty phase.
[Judges Bench Manual For Capital Causes, Appendix J-22 (July 17, 2000).]
A similar instruction is required when the alleged aggravating factor is 4(g), that the defendant committed murder in the course of committing, attempting to commit, or fleeing after committing or attempting to commit felony murder (murder in the course of robbery, sexual assault, arson, burglary, kidnaping, or the crime of contempt in violation of N.J.S.A. 2C:29-9b). Judges Bench Manual, Appendix J-26. However, when the defendant is alleged to have committed murder in the course of murder, the instruction
I charge you that in order to find the existence of this aggravating factor, you must be satisfied beyond a reasonable doubt of the following: (a) the commission of a [murder] AND (b) that the killing of another victim was caused by the defendant at some time within the course of the commission of that crime which can include flight after the commission of the murder.
[,Judges Bench Manual, Appendix J-26.]
The issue raised by defendant is whether the State should be required to reprove the elements of murder to establish that he committed murder in the course of murder pursuant to aggravating factor 4(g). In cases of felony murder, the model jury charge on aggravating factor 4(g) requires the trial court to instruct the penalty-phase jury to disregard the guilt-phase jury’s conclusion that the defendant did commit the predicate felony. That is because the commission of the predicate felony constitutes an element of aggravating factor 4(g). Similarly, in the case of murder within murder, where the predicate felony is murder and where murder constitutes an element of aggravating factor 4(g), it ’ follows that the penalty-phase jury should be instructed to deliberate anew in conformance with this Court’s holding in Marshall. Although the jury in Marshall was the same for the guilt and penalty phases, that does not distinguish the Marshall holding such that application of the principle of deliberation anew should not occur here. Further, to accomplish that deliberation, the prosecution is required under N.J.S.A. 2C:ll-3e(2)(c) to reintroduce relevant guilt-phase evidence when the factfinder at the penalty phase is different from the factfinder at the guilt phase.
Defendant argues not that the penalty-phase jury should have been permitted to acquit him of the murders, but that it should have been given an opportunity to consider anew the evidence supporting his convictions and to view it from a different perspective than that of the guilt-phase jury. Properly instructed, the penalty-phase jury could have concluded that the 4(g) aggravating factor should have been accorded less weight in the balancing process in conformance with this Court’s holding in Biegenwald.
2. Exclusion of Testimony Criticizing State’s Evidence
Defendant contends that the trial court erred in excluding from the penalty-phase criticism of the State’s physical evidence, thereby depriving the jury of the ability to consider “residual doubt” in its sentencing decision. Prior to commencement of the penalty trial, the court heard argument on the State’s motion to exclude the proposed testimony of a forensic scientist who was hired by defendant to evaluate the physical evidence and to present a crime scene reconstruction for the jury. Defendant sought to call the forensic scientist to illuminate the inadequacies in the State’s crime-scene processing and evidence collection. Defendant intended to rely on that testimony with respect to the circumstances of the crime and the State’s burden to prove aggravating factor 4(g); to suggest defendant’s lesser role in the crime from that of Junior’s; and to establish a basis to support a passion/provocation jury charge.
Because residual doubt concerning a defendant’s guilt is not relevant to character or the circumstances of the offense, defendants do not have the right under the United States Constitution to have the jury instructed on residual doubt as a mitigating factor. Franklin v. Lynaugh, 487 U.S. 164, 174, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155, 165-66 (1988) (O’Connor, J., concurring). The Eighth Amendment of the United States Constitution limits the penalty-phase jury in capital cases to consider, as a mitigating factor, evidence of “any aspect of a defendant’s character or
Defendant urges reconsideration of our prior decisions, seeking a holding that evidence of residual doubt is admissible at the penalty phase. We decline to do so and reaffirm the principle that the only evidence admissible in the penalty phase is evidence relevant to the aggravating and mitigating factors. Defendant also argues that he was improperly precluded'from presenting evidence that was both critical of the aggravating factors and relevant to the circumstances of the offense. Because we are requiring the State to reprove the elements of murder to establish aggravating factor 4(g), defendant will have the opportunity to criticize the evidence presented in support of aggravating factor 4(g) and to present his own evidence relevant to the circumstances of the offense on retrial.
3. Improper Introduction of Evidence of Similarity of Prior Murder
Defendant argues that the prosecutor’s introduction of inadmissible evidence of the similarity between the circumstances of defendant’s prior murder conviction and the present matter improperly encouraged the imposition of the death sentence. Defendant contends that the prosecutor elicited testimony during the penalty phase that defendant and his prior murder victim worked together in a large marijuana distribution network, a fact that, in
Our jurisprudence reflects an abiding effort to guard against jury prejudice in the penalty phase of a capital case. State v. Pitts, 116 N.J. 580, 638-39, 562 A.2d 1320 (1989). Other-crimes evidence is of special concern because of its capacity to prejudice the capital-sentencing deliberations. State v. Pennington, 119 N.J. 547, 586, 575 A.2d 816 (1990). The prejudicial effect of prior-conviction evidence is particularly high when the prior conviction is for a similar crime. State v. Brunson, 132 N.J. 377, 386, 625 A.2d 1085 (1993).
In proving the aggravating factor of prior murder, the State may offer evidence of a prior homicide in the form of “the identity and age of the victim, the manner of death and the relationship, if any, of the victim to the defendant.” N.J.S.A 2C:ll-3c(2)(f). Ordinarily, the existence of a prior murder conviction is established simply by the introduction into evidence of the judgment of conviction. Simon, supra, 161 N.J. at 460, 737 A.2d 1. Because the conviction itself constitutes the statutory aggravating factor, Ramseur, supra, 106 N.J. at 276, 524 A.2d 188, the judgment is introduced for the limited purpose of aiding the jury’s determination whether to impose a life or death sentence.
Thus, although the State may offer evidence of a prior conviction to prove the aggravating factor of prior murder, the purpose of N.J.S.A. 2C:ll-3c(2)(f) is “ ‘to avoid turning the sentencing proceeding into a second trial of the previous case and
In Erazo, supra, this Court considered thoroughly the constitutionality of N.J.S.A 2C:ll-3c(2)(f) and the policy considerations that support it. Rejecting the claim that N.J.S.A 2C:ll-3c(2)(f) violated the prohibition against double jeopardy, the Court stated that the statute makes evidence of a prior murder admissible “not for the purpose of punishing defendant for that murder, but to enable the jury to determine the appropriate sentence for the present murder.” Id. at 134, 594 A.2d 232. The Court noted that “[t]he history of c(2)(f) reflects the Legislature’s concern about the amount of evidence of prior murders that is admissible on the penalty phase.” Id. at 136, 594 A.2d 232. Reiterating the “need to guard against ‘jury prejudice,’ ” the Court held that in addition to complying with the statutory restrictions on evidence used to prove a prior murder, a trial court also must instruct the jury on the limited relevance of prior-murder evidence. Id. at 135-36, 594 A.2d 232.
Case law has examined the parameters of various aspects of prior murder that are admissible in a capital penalty trial. See generally State v. Bey, 129 N.J. 557, 595-97, 610 A.2d 814 (1992) (Bey III) (stating that medical evidence presented in clinical terminology does not eliminate potentially prejudicial effect and instructing that “manner of death” should be described in general terms); Pennington, supra, 119 N.J. at 574-75, 575 A.2d 816 (citing prosecutor’s conduct as “improper” and an attempt to inflame penalty jury in case decided prior to Erazo when prosecutor exceeded defense stipulation and court instruction on prior murder by telling jury that defendant “ ‘blew away half of the victim’s face’ ” and “ ‘crippled another human being’ ”).
The amount of prior murder information that should be disclosed concerning a victim’s relationship to the defendant has
I learned through the trial testimony that [defendant] and the victim as well as Mr. Nicholas [a co-defendant in the prior murder] were not only close friends but also involved in a major drug distribution network involving marijuana.
Defendant objected to the irrelevant and highly prejudicial nature of the testimony. The trial court sustained the objection on the ground that the prosecutor was allowed only to show that defendant and the victim were “friends” and “[ajnything beyond that such as involving a major drag distribution is irrelevant.”
We concur with the trial court’s ruling. That defendant and the victim were friends is admissible under N.J.S.A. 2C:ll-3c(2)(f). However, the further circumstances surrounding the nature of the relationship exceeded permissible limits under the statute. The evidence had the ability to prejudice defendant given the similarity between the circumstances surrounding the prior murder and that of the current murders.
Due to the potentially prejudicial effect of the testimony, the trial court gave the jury a curative instruction immediately after the prosecutor elicited the testimony about the New York drag operation. In no uncertain terms, the court instructed the jury not to consider that information in its deliberations:
Ladies and gentlemen, I instruct you that under our law when the State intends to prove that one of the aggravating factors is a prior murder, there’s certain limitations that are in place upon it insofar as the proofs are concerned. When evidence is admitted concerning prior murders, nothing of the facts of the murders beyond name and age of [sic] victim, the manner of death and the victim’s relationship to the defendant should be allowed. Anything else is irrelevant. Therefore, I instruct you that anything you heard about these people being involved in a major drug distribution business, although you heard it, I can tell you to disregard it but I’m also going to tell you that it’s not to be considered at all during your deliberations.
Consistent with this Court’s direction in Erazo, supra, 126 N.J. at 135-36, 594 A.2d 232, the court also charged the jury that defen
Defendant further contends that the trial court erred by permitting the prosecutor to prove the manner of death in the prior murder with diagrams illustrating the location of the victim’s wounds. Specifically, the prosecutor called the medical examiner who performed the autopsy on the victim in the New York case. When the medical examiner took the stand, the prosecutor inquired as to his name, position, and qualifications. The following ensued concerning the autopsy:
Q. Now after completing the autopsy, did you reach a conclusion as to the cause of Philip Rowe’s death?
A. Yes, I did.
Q. And did he sustain a gunshot wound to the hand?
A. Yes, he did.
Q. That was a through and through wound?
A. From the back of the left hand through the palm side through and through, correct.
Q. Did he sustain two gunshot wounds to the head?
A. Yes, he did.
Q. Did one enter through the left temple and exit through the ear?
A That’s correct.
Q. And did the other enter through the back of the head and exit through the parietal orbit?
A On the right side. Yes. True.
Q. Did he sustain any injuries that were consistent with what are known as defensive wounds?
A Yeah ____ [Tjhere was no such cluster of [defensive] wounds in this case except for an abraded mark that was circular on the back of the left hand but isn’t what we would typically call a cluster of defense wounds.
Defendant’s objection is similar to the one raised by the defendant in Erazo. At issue in Erazo was the admissibility of three pages from the autopsy report from the defendant’s prior murder conviction. Erazo, supra, 126 N.J. at 131, 594 A.2d 232. The selected pages described in detail the multiple stab wounds to the victim and contained a diagram showing the location of the wounds. Ibid. Noting that the evidence was admitted pursuant to a stipulation by both parties, the Court declined to find plain error. Id. at 136, 594 A.2d 232. However, because the case was being remanded on other grounds, the Court held that the defendant should not be bound by his prior stipulation in his new trial, reasoning:
We believe that the statutory purpose can be served with less than the stipulated evidence. The prejudicial effect of a graphic and detailed account of the victim’s death might exceed its probative value. On remand, the purposes of the statute will be served if the evidence of the manner of [the former victim’s] death is described as multiple stab wounds to the chest, lungs, and heart.
[Ibid]
Similarly, the evidence here presented a graphic and detailed account of the victim’s death. For purposes of the statute, the description of the manner of death should have been more general, providing no more detail than that death resulted from two gunshot wounds to the head. However, as the Court similarly found in Bey II, supra, 129 N.J. at 597, 610 A.2d 814, we do not find that the difference between the testimony presented here and the more limited permissible “manner of death” testimony was of such magnitude that it prejudiced the jury, or that it clearly was capable of producing an unjust result. We direct, however, that in the event of a penalty retrial only the more limited and general description of the victim’s death should be permitted.
Finally, we turn to the issue of defendant’s proposed stipulation to the prior murder. In other contexts, courts have
N.J.S.A 2C:ll-3c(2)(f) authorizes the admissibility of evidence relating to a prior murder conviction. However, the statute does not circumscribe the trial court’s inherent ability to limit the prejudicial effect of admissible evidence. Trial courts have latitude to control the impact that prior murder conviction evidence may have on the jury. Here, the trial court rejected defendant’s proposed stipulation under the belief that it could not compel the prosecutor to enter into a stipulated form of such evidence. The trial court took an unduly narrow view of its ability to act as gatekeeper of the evidence presented to the jury. On retrial, the court should exercise control over the prejudicial effect of prior-murder evidence by requiring, if necessary, that that evidence be submitted by stipulation or other limited form.
4. Introduction of Inflammatory Victim- . Impact Evidence (Not raised below)
Defendant contends that during the penalty phase the trial court improperly admitted' portions of Emil’s guilt-phase
Victim-impact evidence is admissible for the sole purpose of rebutting mitigating evidence presented by the defendant to support the catch-all mitigating factor 5(h). N.J.S.A 2C:ll-3c(6); State v. Muhammad, 145 N.J. 23, 50-51, 678 A.2d 164 (1996). To rebut evidence offered in support of mitigating factor 5(h), the State is limited to presenting “evidence of the murder victim’s character and background and of the impact of the murder on the victim’s survivors.” N.J.SA 2C:ll-3c(6). The victim impact evidence must be relevant and reliable, and its probative value must not be outweighed by “the risk that its admission may pose the danger of undue prejudice or confusion to the jury.” Muhammad, supra, 145 N.J. at 47, 678 A.2d 164.
To ensure that the admission of victim impact evidence “will not be admitted in a manner that would allow the arbitrary and unconstitutional imposition of the death penalty,” Muhammad set forth safeguards that must be followed when admitting victim-impact statements into evidence. Id. at 53-54, 678 A.2d 164. Specifically concerning the substance of a victim’s testimony, the statement may include “a general factual profile of the victim, including information about the victim’s family, employment, education, and interests.” Id. at 54-55, 678 A.2d 164. It also may include a general description of “the impact of the victim’s death on his or her immediate family.” Id. at 55, 678 A.2d 164. However, the testimony must be factual and “free of inflammatory comments or references.” Ibid. Thus, the testimony may not include “the victim’s family members’ characterizations and opin
Based on an examination of Emil’s testimony, we are satisfied that the admission of Emil’s testimony on victim impact does not constitute plain error. Emil’s testimony that Mitchell had eight or nine children and that one of them was born the day after Mitchell’s death provided the jury with factual information about the victim’s family. Defendant contends that the prejudice resulting from Emil’s references to Mitchell’s children was exacerbated by Emil’s characterization of the murders as “senseless.” However, defendant failed to object at the time the testimony was admitted. Defendant’s reliance on State v. Hightower, 146 N.J. 239, 680 A.2d 649 (1996), is unpersuasive. In Hightower, the jury foreperson disclosed that a member of the jury had heard from a source outside the courtroom that the victim had three children. Id. at 249, 680 A.2d 649. Here, the circumstances surrounding the admission of the victim impact testimony did not involve the jury acquiring information from outside the courtroom. Rather, the information was admitted in open court and without any objection to it at the time. We decline to disturb the trial court’s discretionary decision to admit Emil’s victim impact testimony.
5. Prosecutor’s Remarks During Summation
Defendant cites to numerous instances of prosecutorial misconduct as constituting reversible error. Prosecutorial misconduct is a basis for reversal of a criminal conviction if the conduct was so egregious that it deprived the defendant of the right to a fair trial. State v. Timmendequas, 161 N.J. 515, 575, 737 A.2d 55 (1999), cert. denied, — U.S. -, 122 S.Ct. 136, 151 L.Ed.2d 89. When determining whether alleged prosecutorial misconduct meets that standard, we consider “whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.” Ramseur, supra, 106 N.J. at 322-23, 524 A.2d 188. Generally, if counsel did not object, the remarks will not be deemed prejudicial.
a. Remarks About Duty to Society
Defendant’s first claim is that the prosecutor committed misconduct by advising the members of the jury that it was their duty to sentence him to death. Specifically, defendant argues that when the prosecutor told the jury to consider whether defendant fulfilled his duty as a human being “to assume the right relationship in society,” she in fact was telling the jury that it had a duty to society to sentence defendant to death. Although prosecutors are not permitted to encourage juries to convict or impose the death penalty on the basis of a societal duty, Brown, supra, 138 N.J. at 557, 651 A.2d 19, here, the prosecutor only referred to defendant’s duty to society, not to the jury’s duty to society. Accordingly, we find no prejudice capable of producing an unjust result.
b. Remark About Experience as a Prosecutor
Defendant contends that the prosecutor informed the jury of her opinion of the case by stating that this was her first time seeking a death sentence. Defendant claims that the implication of the prosecutor’s remark was that she had decided against seeking the death penalty in other cases. We have often emphasized the impropriety of a prosecutor’s statements of personal beliefs “if the import is or may be that it is based upon facts not before the jury.” Aponte v. State, 30 N.J. 441, 447, 153 A.2d 665 (1959). However, a failure to make a timely objection indicates defense counsel’s belief that the prosecutor’s remarks were not prejudicial at the time they were made. Timmendequas, supra, 161 N.J. at 576, 737 A.2d 55 (citing State v. Irving, 114 N.J. 427, 444, 555 A.2d 575 (1989)). In context here, we note that the prosecutor’s remark followed defense counsel’s statement in his summation that this was the second time he had represented a capital defendant at penalty phase in his thirty-three years of
c. Remarks About Failure to Testify
Defendant’s third claim relates to the prosecutor’s reference to the medical examiner’s testimony as “uncontradicted,” and the State’s proof of the aggravating factors as “based on objective testimony and ... rooted in uncontradicted, irrefutable facts and evidence.” By way of contrast, the prosecutor argued that the defense failed to set forth sufficient evidence to support the mitigating factors. Defendant maintains that those remarks highlighted defendant’s decision not to take the stand on his own behalf.
Although comment on the evidence and its significance to the jury is permitted, prosecutors may not discuss the significance of testimony not presented. State v. Sinclair, 49 N.J. 525, 548-49, 231 A.2d 565 (1967). Further, if the prosecutor infers that there are no other witnesses other than the defendant who could have testified, there is a danger that the prosecutor may impermissibly reflect on the defendant’s Fifth Amendment right not to testify. Id. at 549, 231 A.2d 565.
Defendant fails to show how the prosecutor’s statements alluded to his decision not to testify. He was not the only witness who could have refuted the State’s evidence on the aggravating factors. The prosecutor permissibly argued that, qualitatively, the evidence set forth by defendant regarding the mitigating factors was not sufficient to overcome the weight of the evidence presented by the' State in support of the aggravating factors. Thus, we are satisfied that the prosecutor’s attempt to depreciate the significance of defendant’s mitigating evidence did not unfairly prejudice defendant.
Defendant’s next claim is that the prosecutor unfairly criticized the testimony of Carmeta Albarus, defendant’s mitigation specialist. The prosecutor stated that defendant was “certainly no scapegoat, to use Ms. Albarus’s term.” The prosecutor also suggested reasons for discrediting Albarus, noting that Albarus “is a paid professional” who “makes her living as a mitigation specialist” and who is a member of organizations “that believe that the death penalty is never an appropriate punishment for murder.” Shortly thereafter, the prosecutor attacked Albarus’s credibility by telling the jury that Albarus’s testimony reminded her “of a statement made by the great showman P.T. Barnum, always have a little something for everybody.” The prosecutor added that Albarus “drew conclusions of a psychosocial nature, conclusions unsupported by any objective fact or outside review” and that the conclusions were “tainted and influenced by her professional and her philosophical bias.” After citing instances when Albarus conceded that she did not consider certain evidence or speak with certain individuals, such as psychiatrists, defendant’s father, and the police, the prosecutor urged the jury to find that defendant failed to demonstrate a link between his upbringing and his role in the murders.
A prosecutor may suggest to the jury that the defense’s presentation of the evidence was unbalanced and incomplete. Timmendequas, supra, 161 N.J. at 593, 737 A.2d 55. A prosecutor’s statements on the deficiency of a defendant’s defense and the inferences to be drawn therefrom are permissible as long as they are grounded in the record. Id. at 594, 737 A.2d 55. In assessing the worth of the defense’s case, the jury is entitled to “consider whether it was receiving a full picture, as interest and bias are always relevant.” Ibid.
We reject defendant’s argument that the prosecutor unfairly criticized his mitigation expert. Here, there was a sufficient basis for the prosecutor to urge the jury to find that Albarus’s testimony was incomplete and inaccurate. It is a fact that Albarus
e. Remarks About Defendant’s Relationship with Son
Defendant also claims that the prosecutor improperly suggested that defendant used his young son, Ringo, to arouse sympathy. Defendant argues that the prosecutor improperly commented that the presentation of a videotape of Ringo talking about his father was “ “very sad ‘cause the defense has exploited a six-year-old to play on your emotions.’ ” Defendant asserts that his relationship with his son was a legitimate mitigating factor and that the prosecutor’s comments improperly suggested that such evidence should be rejected as an insufficient excuse for murder.
Defendant compares the prosecutor’s comments to those made in Marshall. In Marshall, the prosecutor in summation told the jury that it was “obscene” for the defendant to call his three sons to testify as defense witnesses, stating “ ‘for that there’s a place in hell for him.’ ” Supra, 128 N.J. at 159, 586 A.2d 85. Although denying the defendant’s motion for a mistrial, the trial court issued a curative instruction. Id. at 160, 586 A.2d 85. We agreed with the defendant that those remarks were “inflammatory and highly emotional, possessing the capacity to anger and arouse the jury and thereby divert them from their solemn responsibility to render a verdict based on the evidence.” Id. at 161, 586 A.2d 85. However, because the prosecutor spoke only about a “distinctly collateral aspect of trial” and because the trial court issued a
Here, the prosecutor’s remarks did not have the same incendiary capacity. The comments went only to a “collateral aspect of trial,” and because defendant did not object to them at trial, we are satisfied that the prosecutor’s remarks were not clearly capable of producing an unjust result.
C. Alleged Error in Jury Charge During Penalty Phase
Defendant contends, for the first time on appeal, that he is entitled to a new penalty-phase trial because the court failed to inform the jury of the exact length of the New York sentence. He argues that the trial court’s omission of the exact length of the New York sentence in the jury instructions violated his Eighth Amendment rights under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 138 (1994).
“A capital sentencing jury must be fully informed of its responsibility in determining the appropriateness of the death penalty.” State v. Loftin, 146 N.J. 295, 370, 680 A.2d 677 (1996) (citing Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976)). As was explained in Ramseur, supra, “[t]o' hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation, is to mock the goals of rationality and consistency required by modern death penalty jurisprudence.” 106 N.J. at 311, 524 A.2d 188. Generally, in capital sentencing proceedings, the trial court should inform the jury of prior sentences being served by the defendant “because that information may bear on the jury’s thought process in determining the adequacy of a life sentence as opposed to death.” Cooper, supra, 151 N.J. at 373, 700 A.2d 306; Bey III, supra, 129 N.J. at 603, 610 A.2d 814 (noting that jury’s “sentencing decision may be affected by uncertainty about whether the defendant has been punished adequately for the earlier murder,” when prior murder is presented as aggravating factor); Loftin, supra, 146 N.J. at 372, 680 A.2d 677 (stating that jury should be informed of
However, a trial court is not required to inform the jury about a defendant’s prior sentence absent a request by the defendant or an inquiry by the jury. Bey III, supra, 129 N.J. at 603, 610 A.2d 814. Defendant concedes that he made no such request at trial. However, he contends that the failure to inform the jury of the length of the New York sentence constituted plain error, and alternatively, that a jury inquiry was made in the form of a request to clarify the verdict sheet.
We disagree that the jury instructions prejudiced defendant. The jury was told on numerous occasions that if it did not vote for death, defendant would be sentenced to two life terms with sixty years of parole ineligibility to run consecutive to his New York sentence. Specifically, in his opening statement, defense counsel informed the jury that defendant “will never get out of prison,” and that even without the New York sentence the earliest defendant would be released is when he is eighty-seven years old. Defense counsel reminded the jury of that fact in his closing argument. In addition, the court charged the jury that if defendant was not sentenced to death for both victims, it “would impose consecutive life sentences with 60 years to be served before parole eligibility which sentence shall be made to be served consecutively to the sentence imposed in the State of New York.” Because the jury was adequately informed of its sentencing options and the effect the prior sentence would have on the present sentence, we find that the omission in the jury instructions of the exact length of defendant’s prior murder sentence does not constitute plain error.
Regarding the jury’s inquiry made in the form of a request to clarify the verdict sheet, we note that the inquiry- in question was as follows:
A and B refer to a unanimous decision on which set of factors outweigh the other and on what the appropriate punishment is. C refers to the punishment with no*131 reference to the factors. Are we being asked to unanimously agree on both the factors and the punishment?
Nothing in that inquiry pertained to the New York sentence. Indeed, in addition to answering the jury’s question, the court clarified that the total amount of parole ineligibility that it would impose would be sixty years since the sentences would be made to run consecutively.
Finally, defendant urges us to reconsider our holding in Loftin, supra, to the extent that it interpreted Simmons, supra. In Simmons, the United States Supreme Court held that when future dangerousness is alleged as an aggravating factor, and the defendant is ineligible for parole under state law, the jury must be informed that the defendant is ineligible for parole. 512 U.S. at 156, 114 S.Ct. at 2193, 129 L.Ed.2d at 138. As we noted in Loftin, Simmons is not applicable in New Jersey because “future dangerousness” is not an aggravating factor in New Jersey. 146 N.J. at 371, 680 A.2d 677. We recently reaffirmed Loftin in Koskovich, supra, 168 N.J. at 531-32, 776 A.2d 144. Defendant presents no novel argument or law that undermines our holding in Loftin, and thus we reaffirm that Simmons is inapplicable to our jurisprudence on aggravating factors.
D. Penalty-Phase Jury’s Alleged Failure to Vote Individually on Aggravating Factors
We now turn to defendant’s last penalty-phase issue. He contends that the jury reached a non-unanimous verdict in the penalty phase, as evidenced by the fact that it initially concluded, without formal vote that either one or the other aggravating factors had been proven. In response, the State argues that the record demonstrates that the jurors were in agreement that the State had proven both aggravating factors (4(a) and 4(g)) beyond a reasonable doubt. Given the “overwhelming evidence” presented at trial, the State maintains that “no reasonable juror” could have concluded otherwise. Further, the State asserts that because the jurors were convinced that either one or the other factor outweighed the mitigating factors, there was no risk that the jury
Our death penalty statute requires the jury’s verdict to “set[ ] forth in writing the existence or nonexistence of each of the aggravating and mitigating factors.” N.J.S.A 2C:ll-3c(3). If the jury finds “that all of the aggravating factors outweigh beyond a reasonable doubt all of the mitigating factors, the court shall sentence the defendant to death.” N.J.S.A 2C:ll-3c(3)(a). See Bey II, 112 N.J. at 158-59, 548 A.2d 887 (1988) (citing Biegenwald, supra, 106 N.J. at 62-63, 524 A.2d 130). However, if the jury finds that “all of the aggravating factors which exist do not outweigh all of the mitigating factors,” a sentence of -imprisonment is imposed. N.J.S.A 2C:ll-3e(3)(b). “By requiring that the jury be unanimous on the imposition of the death penalty, the statute assures that each juror must accept full responsibility for the imposition of that sanction.” Bey II, supra, 112 N.J. at 157, 548 A.2d 887.
Requiring a unanimous finding on the existence of the aggravating factors is consistent with the general requirement of unanimous verdicts in criminal actions. Id. at 159, 548 A.2d 887. And, as important as correct jury instructions are in all criminal cases, they have enhanced significance in capital cases. Id. at 162, 548 A.2d 887. Because “we do not allow aggravating factors to be totaled up as bean-counters would do,” State v. Moore, 122 N.J. 420, 473, 585 A.2d 864 (1991), the jury charge must instruct the jurors to make a normative judgment that all of the aggravating factors do or do not outweigh all of the mitigating factors. Bey II, supra, 112 N.J. at 162, 548 A.2d 887.
Further, a specific charge on the requirement'for unanimity is necessary when “ ‘there is a danger of a fragmented verdict.’ ” State v. Parker, 124 N.J. 628, 637, 592 A.2d 228 (1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1483, 117 L.Ed.2d 625 (1992) (quoting United States v. North, 910 F.2d 843, 875 (D.C.Cir.), vacated in part and rev’d in part on rehearing, 920 F.2d 940 (D.C.Cir.1990)). The risk of a fragmented penalty-phase verdict is
The present circumstances leave no doubt that the jurors misunderstood the instructions on the unanimity requirement for each aggravating factor. Although the jurors were instructed by the trial court, and were reminded on the verdict sheet that they had to find the aggravating factors unanimously and beyond a reasonable doubt, they apparently understood that to mean that each juror only had to “agree[ ] that one or both of the aggravating factors was proven.” Indeed, when the trial court learned that the jurors had interpreted the charge to mean that the individual aggravating factors need not be found unanimously, it agreed that their “interpretation was a reasonable one” and that the court’s “explanation was not as clear as it should have been.” Accordingly, after discussion with counsel, the trial court sent the jurors back to vote separately on each of the aggravating factors. However, the jurors were not required to weigh again the aggravating
We have held that errors “that strike at the core of the jury’s obligation to balance the aggravating and mitigating factors in accordance with statutory requirements and prior case law” are not rendered harmless merely because the evidence is “ ‘overwhelming.’ ” Koskovich, supra, 168 N.J. at 540, 776 A.2d 144. In a capital sentencing it is essential that each juror individually determine whether each mitigating factor exists and then individually decide whether the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. State v. Papasavvas, 163 N.J. 565, 628, 751 A.2d 40 (2000). Here, a question arose concerning the unanimity of the findings on the aggravating factors. The polling of the jury had informed the court of the jury’s weighing of each aggravating factor compared to the mitigating factors, and the combined weight of the aggravating factors compared to the mitigating factors.
The desire for certainty should have led the trial court to have the jury engage in a reweighing of any aggravating factor found unanimously. But, under the circumstances, we view the remoteness of prejudice as not rising to the level of concern voiced in Koskovich, supra Here, aggravating factor 4(a), prior murder, was found unanimously. Defendant made no attempt to refute it during the penalty-phase trial and the State’s evidence left no room for doubt. Further, the jury had informed the court that either aggravating factor, standing alone, outweighed the mitigating evidence. The court’s actions eliminated the initial unanimity question concerning aggravating factor 4(a). Thus, we view this issue of error as harmless under the circumstances.
Additional Issues
A. Standard of Proof of Circumstantial Evidence for By-Own-Conduct Murder
Our dissenting colleagues contend that this case highlights the need to impose a higher burden of proof than “beyond a reasonable doubt” on the by-own-conduct determination in a capital prosecution based on evidence of a circumstantial nature. Unsatisfied with the jury’s determination that defendant committed murder by his own conduct thus triggering his death eligibility, the dissent seeks to impose a heightened “no doubt” standard of proof on that determination when circumstantial evidence exclusively is involved. Although the desire for certainty is an understandably human, and humane, response when criminal consequences hang in the balance, we do not agree that the facts' in this record warrant so dramatic an alteration in our jurisprudence.
The beyond-a-reasonable-doubt standard of proof is imposed by our Code of Criminal Conduct for conviction of all offenses under the Code. N.J.S.A. 2C:1-13. In addition, murder convictions require certain precise findings, made by the jury unanimously applying the beyond-a-reasonable-doubt standard, in order to proceed to a capital penalty phase as well as for imposition of a capital sentence. See N.J.S.A. 2C:ll-3(c) (requiring for death eligibility finding that defendant committed murder by own-eon-duct); Brown, supra, 138 N.J. at 511, 651 A.2d 19 (holding jury must be satisfied beyond reasonable doubt that defendant committed murder by own conduct to proceed to penalty phase). The elimination of all reasonable doubt from each and every juror’s mind involves an extremely thorough and deliberate fact-finding process. It is a process that has worked well for hundreds of years.
We are confident that no capital conviction in this State that has been upheld on appeal or on post-conviction review has posed a serious question about guilt. Careful review of the record in each
Although not dispositive, numerous jurisdictions have rejected the call for a different and heightened standard of proof where circumstantial evidence is involved. Of those federal circuit courts of appeal that have considered the question, all have declined to adopt a higher standard in the context of circumstantial evidence. See generally United States v. Olbres, 61 F.3d 967, 970 (1st Cir.) (“So long as the evidence, taken as a whole, warrants a judgment of conviction, ‘it need not rule out other hypotheses more congenial to a finding of innocence.’ ”), cert. denied, 516 U.S. 991, 116 S.Ct. 522, 133 L.Ed.2d 430 (1995); United States v. Sawyer, 294 F.2d 24, 31 (4th Cir.) (noting that prosecution is not required to exclude every hypothesis except that of guilty beyond reasonable doubt and stating that jury is responsible for weighing evidence to find guilt beyond reasonable doubt), cert. denied, 368. U.S. 916, 82 S.Ct. 196, 7 L.Ed.2d 132 (1961); United States v. Prieur, 429 F.2d 1237, 1238 (6th Cir.1970) (holding “it is not necessary that [circumstantial evidence] remove every reasonable hypothesis except that of guilt”).
The federal courts follow the appellate standard set forth in Jackson v. Virginia for assessing the sufficiency of the evidence, whether direct or circumstantial, to support a criminal conviction. The “relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, supra, 443 U.S. at 319,
Case law from other state courts has echoed the principles contained in the circuit court decisions, and has rejected arguments calling for a heightened standard for circumstantial evidence in capital cases. See People v. Hall, 194 Ill.2d 305, 252 Ill.Dec. 653, 743 N.E.2d 521, 536 (2000) (applying Jackson v. Virginia standard in affirming capital murder convictions based on circumstantial evidence, noting that “[cjircumstantial evidence is sufficient to sustain a criminal conviction, provided that such evidence satisfies proof beyond a reasonable doubt”), cert. denied, — U.S. -, 122 S.Ct. 393, 151 L.Ed.2d 297 (2001); Commonwealth v. Begley, 566 Pa. 239, 780 A.2d 605, 615-19 (2001) (applying Jackson v. Virginia standard to circumstantial evidence used to convict defendant of first-degree murder and kidnapping and to sustain his death sentence); State v. Carruthers, 35 S.W.3d 516, 558 (Tenn.2000) (upholding capital conviction based on circumstantial evidence using appellate standard set forth in Jackson v. Virginia), cert. denied, 533 U.S. 953, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001).
In our state, the Reyes standard is in full accord with the federal appellate standard for review of the sufficiency of the evidence. It is the apt standard of review here. Moreover, we do not deviate from the beyond-a-reasonable-doubt standard because circumstantial evidence is involved. We decline to reform our burden of proof jurisprudence simply because the dissent contends that the prosecution should not be able to retry defendant capitally based on its disagreement with the jury’s outcome on the by-own-conduet finding.
B. Constitutionality of New Jersey Death Penalty Statute
Defendant and amici curiae, the Association of Criminal Defense Lawyers of New Jersey, the American Civil Liberties
We have upheld the constitutionality of New Jersey’s death penalty statute in each and every year since we last examined the issue in 1987 in Ramseur. See, e.g., Koskovich, supra, 168 N.J. at 541, 776 A.2d 144 (citing in 2001 to Ramseur and holding that death penalty statute does not violate either federal or state constitutional prohibitions against cruel and unusual punishment); Simon, supra, 161 N.J. at 483-84, 737 A.2d 1 (reaffirming in 1999 Ramseur and prior decisions upholding constitutionality of death penalty statute); Cooper, supra, 151 N.J. at 379, 700 A.2d 306 (reaffirming in 1997 Ramseur and prior decisions); Harris, supra, 141 N.J. at 574, 662 A.2d 333 (affirming in 1995 Ramseur); Martini, supra, 131 N.J. at 221-22, 619 A.2d 1208 (same in 1993); Moore, supra, 122 N.J. at 486, 585 A.2d 864 (rejecting in 1991 as unjustified defendant’s request that Court depart from prior rulings on death penalty); Pitts, supra, 116 N.J. at 597-98, 562 A.2d 1320 (reaffirming Ramseur in 1989). Nothing submitted in this appeal warrants departure from that uninterrupted chain of decisional law.
That said, we add the following. In assessing whether a form of punishment selected by a democratically elected legislature constitutes cruel and unusual punishment, we must consider whether the punishment conforms with contemporary standards of decency. Ramseur, supra, 106 N.J. at 169, 524 A.2d 188. Community standards of decency and morality are not static. However, the constitutional test for cruel and unusual punishment must rest on objective and reliable data reflecting the evolving stan
Since our Legislature’s enactment of a death penalty statute, we are unaware of any substantial effort within the Legislature to rescind or retrench from its support for the death penalty. Indeed, at times when the Legislature has disagreed with this Court’s decisions, perceiving them as curbing or infringing on the death penalty statute’s application, the Legislature has reacted with clarifying legislation and even a constitutional amendment to reassert the Act’s vitality. See L. 1993, c. Ill (responding to Gerald, supra, and amending Article I, Section 12 of New Jersey Constitution by popular vote to provide that “[i]t shall not be cruel and unusual punishment to impose the death penalty on a person convicted of purposely or knowingly causing serious bodily injury resulting in death who committed the homicidal act by his own conduct”); L. 1992, c. 5 (amending N.J.S.A 2C:ll-3e). The
In Ramseur, we acknowledged .that the actions of juries also can be a form of reliable evidence of the community’s standards of decency. Ramseur, supra, 106 N.J. at 173, 524 A.2d 188 (stating that because actions of jurors constitute a “true reflection of society’s morality,” jury verdicts constitute another form of objective and reliable evidence to assess contemporary standards of decency). Examination of data compiled by our Administrative Office of the Courts concerning capital prosecutions over the last ten years indicates that from 1992 to Fall 2001 there have been sixty-nine capital trials. In those trials, juries have found the necessary aggravating factors that outweighed the mitigating factors and that resulted in twenty-two sentences of death. We recognize that since the time of the Ramseur decision, the number of verdicts imposing the death sentence has declined; nonetheless, it remains the ease that juries still are finding that a sentence of death is appropriate for some defendants. As in Ramseur, if we regard the actions of those juries as a reliable reflection of society’s moral values, the fact that juries continue to return verdicts imposing the death penalty provides additional reliable support for the conclusion that the death penalty does not violate present standards of decency. Ibid.
Public opinion poll data is not as reliable or objective as legislative enactments or jury verdicts in assessing whether the punishment of death conforms with contemporary standards of decency. We did not rely on public opinion poll data in our holding in Ramseur, and neither did the United States Supreme Court in Atkins. Ibid.; Atkins, supra, — U.S. at - n. 21, 122 S.Ct. at 2249 n. 21, 153 L.Ed.2d at - n. 21 (noting in footnote simply that polling data supports consensus against executions of mentally retarded persons otherwise reflected in legislative changes enacted in numerous states across nation). We decline to regard the reported percentage change in public opinion poll data as a persuasive basis for departing from our well-established precedent on this subject. We therefore reaffirm Ramseur, and subsequent case law upholding the constitutionality of New Jersey’s death penalty statute. Ramseur, supra, 106 N.J. at 190, 524
Conclusion
We affirm defendant’s non-capital convictions and the judgment of conviction of purposeful or knowing murder. However, the determination of murder by own conduct is reversed based on prejudicial error in the jury instructions. We reaffirm the constitutionality of the death penalty statute. Defendant’s death sentences are set aside and the matter is remanded for further proceedings consistent with our disposition. Defendant’s proportionality claims are preserved.
Since the decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), at least sixteen states have joined Georgia, Maryland, and the federal government in enacting statutes that prohibit such executions.