State of New Jersey v. Raymond E. Troxell

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3730-10T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. February 13, 2013
RAYMOND E. TROXELL, APPELLATE DIVISION
Defendant-Appellant.
_____________________________________________________
Submitted March 5, 2013 – Decided February 13, 2014
Before Judges Messano, Lihotz and Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 09-02-0348.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jacqueline E. Turner,
Assistant Deputy Public Defender, of counsel
and on the brief).
Bruce J. Kaplan, Middlesex County
Prosecutor, attorney for respondent (Joie
Piderit, Assistant Prosecutor, of counsel
and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
MESSANO, P.J.A.D.
Defendant Raymond E. Troxell was indicted by the Middlesex
County grand jury for the first-degree murder for hire of his
business partner, Vincent Russo, N.J.S.A. 2C:11-3(a)(1) or (2),
-3(b)(4) and -3(b)(4)(e). Co-defendant, Frank Marsh, was
charged in the same indictment with the first-degree purposeful
or knowing murder of Russo, N.J.S.A. 2C:11-3(a)(1) or (2),
-3(b)(4) and -3(b)(4)(d); second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Defendant
was tried separately from Marsh and found guilty by the jury.
The jury also answered two specific interrogatories in the
affirmative, compelling a mandatory sentence of life without
parole, pursuant to N.J.S.A. 2C:11-3(b)(4). Defendant raises
the following arguments on appeal:
POINT I
THE DEFENDANT'S VIDEOTAPED STATEMENT WAS THE
PRODUCT OF PSYCHOLOGICALLY COERCIVE
INTERROGATION. U.S. Const. Amends. V, XIV;
N.J.R.E. 503.
POINT II
THE JUDGE ERRED IN ADMITTING EVIDENCE OF THE
CO-DEFENDANT'S OWNERSHIP OF A NUMBER OF
LEGAL GUNS, AS PROOF OF THIS OWNERSHIP WAS
IRRELEVANT AND WAS AN IMPROPER COMMENT ON
THE EXERCISE OF A CONSTITUTIONAL RIGHT[.]
U.S. Const. Amends. II, VI, XIV; N.J. Const.
Art. I, para. 10. (Not Raised Below)
POINT III
THE TRIAL JUDGE ERRED IN FAILING TO TELL THE
JURY THAT A FINDING ON THE TRIGGERING
FACTOR, MURDER FOR HIRE, MUST BE UNANIMOUS
2 A-3730-10T2
AND, IF NOT, A VALID VERDICT WOULD STAND.
(Not Raised Below)
In a pro se supplemental brief, defendant raises the following
points:
POINT I
DEFENDANT'S STATEMENT TO POLICE SHOULD HAVE
BEEN SUPPRESSED AS HE DID NOT KNOWINGLY OR
VOLUNTARILY WAIVE HIS RIGHT TO REMAIN SILENT
. . . .
POINT II
DEFENDANT'S STATEMENT MUST BE SUPPRESSED AS
THE POLICE FAILED TO SCRUPULOUSLY HONOR HIS
RIGHT TO REMAIN SILENT . . . .
POINT III
THE ADMISSION OF EVIDENCE OF FRANK MARSH'S
INVOLVEMENT IN THE INSTANT TRIAL
IMPERMISSIBLY LOWERED THE STATE'S BURDEN OF
PROOF ON THE MATERIAL ELEMENTS OF THE CRIME
CHARGED AND RESULTED IN A FLAWED JURY
INSTRUCTION[,] THEREBY DENYING DEFENDANT HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL
. . . .
POINT IV
THE ADMISSION OF EVIDENCE OF FRANK MARSH'S
INVOLVEMENT IN THE INSTANT TRIAL
IMPERMISSIBLY CREATED A CONFLICT OF INTEREST
BY FORCING DEFENDANT'S COUNSEL TO ALSO HAVE
TO DEFEND HIS CLIENT'S CO-DEFENDANT DESPITE
SEVERED TRIALS; THEREBY DENYING DEFENDANT
HIS DUE PROCESS RIGHTS TO A FAIR TRIAL, AND
EFFECTIVE ASSISTANCE OF COUNSEL . . . .
Having considered these arguments in light of the record and
applicable legal standards, we affirm.
3 A-3730-10T2
I.
In summer 2008, defendant and Russo opened an Italian deli,
Mezzaluna, in North Brunswick. Paul Scala, who owned a bakery
next door, was instrumental in introducing the two men to each
other. Russo, who lived on Staten Island, was "like a brother
to [Scala]," and defendant was his "good friend[]." Soon after
the business opened, however, defendant began complaining to
Scala that, despite the fledgling business's financial problems,
Russo was compensating himself and not contributing to the
workload.
The complaints worsened as the months passed, and, on one
occasion, defendant told Scala that "if he (Russo) takes another
. . . dime[,] my friend . . . will go in there and shoot him in
the back of the store in the head." On another occasion,
defendant told Scala he had some "crazy friend . . . from
Edison" who would "do the job." On a third occasion, defendant
told Scala, "I'll kill that mother f------, I got a guy for
[$]3000 [who] is going to shoot him[.]" Scala told Russo, who
brushed off the threats, saying Scala was "paranoid" and
defendant "talk[ed] too much."
Other witnesses called by the State testified to the
animosity between defendant and Russo over the operation of the
business. Mezzaluna's cook, Anthony Agostino, identified notes
4 A-3730-10T2
left by defendant for Russo, threatening legal action and
complaining about Russo talking money from the business.
At approximately 6:30 a.m. on December 16, 2008, North
Brunswick Township police officer Robert Frangella was
dispatched to Mezzaluna. All the doors were locked, but
Frangella noted a Jeep with New York license plates parked in
the rear. Shortly thereafter, Agostino arrived and opened the
front door. Frangella found Russo's lifeless body near the back
office door, on its knees and slumped over a box. It was "ice
cold" and exhibited "lividity." No spent bullet casings were
found at the scene, and a bottle containing Oxycontin was found
on a table near the body.
It was estimated that Russo had been dead for approximately
twelve hours. Although not initially clear what caused Russo's
death, the medical examiner determined at autopsy that Russo
died from a single gunshot wound to the head fired from a
distance of four to six inches. The medical examiner opined it
was most likely that Russo was shot while sitting in the chair
in his office. Russo may have survived the shooting for a short
period of time, during which he would still have had limited
movement.
John Kissel testified that defendant was "one of [his] best
friends," the two having both grown up together in Edison. They
5 A-3730-10T2
both knew co-defendant Marsh, who was also from Edison. Kissel
owned Alpha Cab Company (Alpha Cab), and both defendant and
Marsh worked at Alpha Cab at the time of the murder. Defendant
complained about Russo and offered Kissel $3000 to kill Russo;
Kissel refused. Kissel testified that defendant talked about
killing Russo in Marsh's presence, but Kissel did not know
whether the two discussed the issue outside his presence.
Kissel testified that on December 15, 2008, at
approximately 7:00 p.m., Marsh came to his office at Alpha Cab.
Following a brief conversation, the substance of which was not
admitted before the jury, Kissel went to Mezzaluna and saw
Russo's Jeep parked in the back. Kissel called defendant and
met him in the parking lot of a Walmart in North Brunswick.
Kissel "told [defendant] that [Russo] was dead." Defendant was
"[s]tunned a little bit." Kissel and defendant then went to
defendant's house, and, at some point, Kissel saw defendant
"holding a wad" of cash. Marsh arrived at defendant's house and
stayed "[m]aybe [fifteen] minutes" before leaving. Kissel did
not see defendant give the money to Marsh.
Kissel and defendant went to a bar around 11:00 p.m., and
Marsh arrived a short time later. Angela Cusamano, a barmaid,
testified that the three men were there, and videotapes from
surveillance cameras at the bar corroborated the meeting. Cell
6 A-3730-10T2
phone records also revealed that defendant and Marsh spoke to
each other numerous times on December 15. Defendant also called
Marsh shortly after leaving the bar, at approximately 12:47 a.m.
on December 16. Marsh called defendant later that afternoon,
but, the call went directly to defendant's voice mail. At the
time, defendant was being interviewed by investigators. Within
thirty minutes of completing the interview, cell phone records
revealed that defendant called Marsh and spoke to him for
several minutes.
Bill Unger, a dispatcher and driver at Alpha Cab, saw
defendant and Marsh speaking together outside the cab company on
the afternoon of December 15. Unger, a gun enthusiast,
testified that Marsh previously had shown him a "two-shot
derringer" he owned.1 Marsh showed Unger the "very large" ".357"
bullets that the derringer used and left one in the cab
company's office "as a souvenir . . . ." Subsequent testimony
by the State's ballistics expert revealed that this caliber
bullet was consistent with the projectile fragments recovered
from Russo's body at autopsy. The bullet that produced the
fragments could have been fired from a derringer.
1
A derringer is a "short-barreled pistol having a large
bore." Webster's New College Dictionary 306 (2 ed. 1999).
7 A-3730-10T2
Charles Chicarella, a friend of Marsh, testified that he
was trying to obtain some Oxycontin on December 15, 2008, but
Marsh claimed he had none. However, late in the evening, at
around 10:00 p.m., Marsh arrived at Chicarella's house and gave
him two pills. Chicarella testified the pills looked the same
as those in the bottle found by Russo's body.
Defendant was interviewed by Investigator Paul Miller of
the Middlesex County Prosecutor's office on December 16, 2008.
A formal statement was videotaped and played for the jury.
Miller interviewed defendant again on December 18, 2008, after
having interviewed Kissel and other witnesses. Defendant
acknowledged saying months earlier that he "wish[ed] [Russo]
wasn't around." But, defendant claimed he did not know Marsh
would actually take him seriously and kill Russo. When Marsh
came to his house to be paid, defendant gave Kissel $3000 and
told him to give it to Marsh out of fear. The second statement
was videotaped and played for the jury.
Marsh lived in Macungie, Pennsylvania. On December 19,
Miller and other law enforcement officers executed a search
warrant at Marsh's home and seized various firearms and
ammunition. Also found was an empty American Derringer "gun
box."
8 A-3730-10T2
While in the Middlesex County Correctional Center awaiting
trial, defendant approached David Stankovits, a fellow inmate,
and asked him "to testify on [defendant's] behalf." Stankovits
told the jury that defendant asked him to tell police that, on
December 15, while Stankovits was selling drugs near Scala's
bakery, he saw a large man exit a car and enter Mezzaluna
through the rear door. In exchange for this testimony,
defendant promised Stankovits $1000 and "goodies in jail."
[At the court's direction, Sections II
and III of its opinion have been
redacted from the published opinion
because they do not meet the criteria
set by R. 1:36-2(d) for publication.]
IV.
Finally, we consider defendant's contention that the judge
failed to properly instruct the jury that it must return a
unanimous verdict as to any "triggering" factor -- a finding
that would make defendant eligible for a mandatory sentence of
life imprisonment without parole. See N.J.S.A. 2C:11-3(b)(4).
Defendant also posits a more subtle argument.2 Analogizing to
prior death penalty jurisprudence, he argues that the judge
should have told the jurors they were free to return a non-
unanimous verdict on the triggering factor. He contends this
2
We asked defendant and the State to supplement their original
briefing on this point and now consider the arguments presented.
9 A-3730-10T2
failure amounts to plain error, because had the jury been
properly instructed and returned a non-unanimous verdict on the
triggering factor, he would not have faced a mandatory life
sentence without parole.
The State contends that prior jurisprudence is inapplicable
in light of the Legislature's repeal of the death penalty and
adoption of significant statutory amendments in 2007. The State
further argues that, even if it was error to omit a non-
unanimity instruction, we must conduct our review under the
plain error standard, since defendant did not object. See e.g.,
State v. Singleton, 211 N.J. 157, 182 (2012) ("Appellate review
applies the plain-error standard when a defendant fails to
object to a given jury charge."). Under the unique facts of the
case, the State contends any error was not "clearly capable of
producing an unjust result." R. 2:10-2. Lastly, the State
notes that if we conclude it was plain error to omit such an
instruction, only defendant's sentence is affected, and we
should remand for imposition of a sentence in accordance with
N.J.S.A. 2C:11-3(b)(1), and the No Early Release Act, N.J.S.A.
2C:43-7.2 (NERA).
A.
Pursuant to amendments enacted by the Legislature in 2007,
New Jersey's death penalty was repealed and "replace[d] . . .
10 A-3730-10T2
with life imprisonment without eligibility for parole in certain
circumstances." See Senate Comm. Statement to Senate Comm.
Substitute for S. Nos. 171 and 2741 (May 10, 2007), enacted as
L. 2007, c. 204 (Dec. 17, 2007) (the 2007 amendments). Under
the present statutory scheme, "a person convicted of murder
shall be sentenced . . . to a term of 30 years, during which the
person shall not be eligible for parole, or . . . to a specific
term of years which shall be between 30 years and life
imprisonment of which the person shall serve 30 years before
being eligible for parole." N.J.S.A. 2C:11-3(b)(1).
However, if the State proves one of several "triggering
factors," a defendant is eligible for a mandatory sentence of
life imprisonment without parole. N.J.S.A. 2C:11-3(b)(4) sets
forth one such triggering factor: a defendant convicted of
purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2),
becomes eligible for a mandatory sentence of "life imprisonment
without . . . parole" if he, "as an accomplice[,] procured the
commission of the offense by payment or promise of payment of
anything of pecuniary value." Ibid.
In order for defendant to have been eligible for a
mandatory life sentence without parole in this case, the jury
was specifically required to unanimously decide that defendant
knowingly or purposely caused the death of Russo as Marsh's
11 A-3730-10T2
accomplice, and that the State had proven the triggering factor,
i.e., as an accomplice, defendant procured the commission of
Russo's murder with payment, or promise of payment, to Marsh.
Once eligible, a mandatory sentence of life imprisonment
without parole must be imposed "if a jury finds beyond a
reasonable doubt that any of" certain "aggravating factors
exist." Ibid. One aggravating factor is that "[t]he defendant
procured the commission of the murder by payment or promise of
payment of anything of pecuniary value." N.J.S.A. 2C:11-
3(b)(4)(e).3 As one noted commentator has explained:
Like the death penalty it replaced, the
sentence of life imprisonment without parole
requires two separate findings: first, that
the murderer is eligible for the sentence
based on the particular circumstances of the
3
A similar redundancy between the "murder for hire" triggering
factor and aggravating sentencing factor existed in N.J.S.A.
2C:11-3 prior to the 2007 amendments. See former N.J.S.A.
2C:11-3(c) and -3(c)(4)(e). In State v. Ramseur, 106 N.J. 123,
188 (1987), the Court explained:
There is one class of murder in which a
factor defines both death eligibility as
well as selection for the penalty itself.
The defendant who pays another to commit
knowing or purposeful murder and is
therefore death eligible (Sec. c) will,
without proof of any further aggravating
factor (since such payment itself is an
aggravating factor, Sec. c(4)(e)), be
subject to the death penalty if that
aggravating factor outweighs any mitigating
factors.
12 A-3730-10T2
crime; and, second, that the murder involved
one or more aggravating factors.
[Cannel, New Jersey Criminal Code Annotated,
comment 7 on N.J.S.A. 2C:11-3 (2013).]
The record reflects that in this case the judge reviewed
his charge with the attorneys at length. Defense counsel agreed
not only to the charge, but also to the proposed interrogatories
on the verdict sheet. At the beginning of the instructions, and
before explaining the verdict sheet, the judge explicitly told
the jury that its verdict must be unanimous. The first question
on the verdict sheet asked whether defendant was guilty as an
accomplice to Russo's murder; the second question asked whether
defendant was guilty of "procur[ing] the murder by payment of
money to Frank Marsh." The court again reminded the jury that
its verdict had to be unanimous at the conclusion of the charge.
After the jury announced its unanimous verdict regarding
the first two questions, the judge told the jury to
return . . . to the jury room and consider
again whether the State has proven the
aggravating factor that Raymond Troxell
procured the murder of Vincent Russo by
payment or promise of payment of money to
Frank Marsh.
The court again instructed the jury that its "verdict in this
regard must be unanimous." A special interrogatory was
submitted to the jury, asking whether defendant "procured the
murder of . . . Russo by payment or promise of payment of money
13 A-3730-10T2
to Frank Marsh[.]" The jury returned a unanimous verdict as to
the aggravating sentencing factor.4
4
Because the issue is not squarely before us, we do not decide
whether this second "penalty" phase was required under the
particular facts of this case, i.e., where the triggering factor
and the aggravating sentencing factor were the same. As noted,
the Court in Ramseur, supra, 106 N.J. at 188, implied that in
such circumstances, a guilty verdict as to the "death eligible,"
i.e., triggering, factor would "without proof of any further
aggravating factor (since such payment itself is an aggravating
factor . . .) . . . subject [a defendant to] the death penalty
if that aggravating factor outweighs any mitigating factors."
But later, again considering the same aggravating factor, the
Court held:
[T]rial courts in future capital cases in
which this issue arises should explicitly
inform the penalty-phase jury that . . . the
guilt and sentencing phases are considered
as separate proceedings. Hence, the jury in
the penalty phase should be informed of its
duty to deliberate anew concerning any facts
established by the verdict in the guilt-
phase determination that the State relies on
to prove an aggravating factor, and of its
right to reach a different conclusion
concerning such facts in the penalty phase.
[State v. Marshall, 123 N.J. 1, 139 (1991).]
In State v. Josephs, 174 N.J. 44, 114 (2002), the Court accepted
the argument that the penalty-phase jury "should . . . be[]
given an opportunity to consider anew the evidence" supporting
the aggravating sentencing factor "and to view it from a
different perspective than that of the guilt-phase jury." The
Court explained that, if "[p]roperly instructed[, the] penalty-
phase jury could have concluded that the . . . aggravating
factor should have been accorded less weight in the balancing
process" required to determine whether the defendant was to be
sentenced to death. Ibid.
However, after the 2007 amendments, "the presence or
absence of mitigating factors is not considered at all."
(continued)
14 A-3730-10T2
Any claim that the jury was not provided adequate
instructions regarding the need for unanimity of its verdicts
regarding defendant's guilt as Marsh's accomplice, the
triggering factor of procuring Russo's murder and the
aggravating sentencing factor is clearly without merit. R.
2:11-3(e)(2).
B.
The more difficult issue is whether the judge was required
to tell the jury it could return a non-unanimous verdict on the
triggering factor. Defendant argues a non-unanimous verdict as
to the triggering factor would have been a valid verdict which
eliminated the possibility of a mandatory life sentence without
parole. Under those circumstances, the judge would have
necessarily been required to sentence defendant in accordance
with N.J.S.A. 2C:11-3(b)(1) and NERA. See Cannel, supra,
comment 7(a) on N.J.S.A. 2C:11-3 ("Where the jury is unable to
agree unanimously as to any one of the four triggers, subsection
b(4) does not apply, and sentencing of the defendant will be
under b(1)."). We now consider the argument.
(continued)
Cannel, supra, comment 7 on N.J.S.A. 2C:11-3. It would appear
that since the jury already found the triggering factor was
proven beyond a reasonable doubt, and without the need any
longer to weigh the very same aggravating sentencing factor
against mitigating factors, a second "penalty" phase was
unnecessary in this case.
15 A-3730-10T2
Prior Death Penalty Jurisprudence
Prior to the 2007 amendments, a defendant was eligible for
the death penalty if, having been convicted of knowing or
purposeful murder, N.J.S.A. 2C:11-3(a)(1) or (2), the jury
unanimously concluded beyond a reasonable doubt that the State
proved one of certain triggering factors. These included, among
others, that the defendant "committed the homicidal act by his
own conduct; or . . . as an accomplice procured the commission
of the offense by payment or promise of payment of anything of
pecuniary value[.]" Former N.J.S.A. 2C:11-3(c).
If the jury returned a unanimous verdict as to the
triggering factor, "a separate sentencing proceeding" was held
"to determine whether the defendant should be sentenced to
death[.]" Former N.J.S.A. 2C:11-3(c)(1). The State had the
burden of proving at least one statutory aggravating factor
beyond a reasonable doubt. Former N.J.S.A. 2C:11-3(c)(2)(a), -
3(c)(4). The defendant's burden was only to "produc[e]
evidence" as to any statutory mitigating factor. Former
N.J.S.A. 2C:11-3(c)(2)(a), -3(c)(5).
The statute explicitly provided for three possible verdicts
following the sentencing hearing. If the jury were to find that
"any aggravating factors exist and that all the aggravating
factors outweigh[ed] beyond a reasonable doubt all of the
16 A-3730-10T2
mitigating factors," the defendant would be sentenced to death.
Former N.J.S.A. 2C:11-3(c)(3)(a). If the jury found no
aggravating factors existed, or those that existed did "not
outweigh all of the mitigating factors," the defendant's life
would be spared, and he would be sentenced in accordance with
subsection (b) of the statute. Former N.J.S.A. 2C:11-
3(c)(3)(b). Finally, defendant would be sentenced pursuant to
subsection (b) "[i]f the jury [were] unable to reach a unanimous
verdict[.]" Former N.J.S.A. 2C:11-3(c)(3)(c) (emphasis added).
Subsection (b) in turn provided that if the defendant were
found to be death-eligible, "and the jury . . . found the
existence of one or more aggravating factors, but that such
factors did not outweigh the mitigating factors . . . or the
jury was unable to reach a unanimous verdict as to the weight of
the factors, the defendant [was to] be sentenced . . . to a term
of life imprisonment" without parole. Former N.J.S.A. 2C:11-
3(b)(4) (emphasis added). In 1985, the Legislature amended the
statute to provide that, "[p]rior to . . . sentencing
deliberations," the jury would be informed that "a failure to
reach a unanimous verdict [would] result in sentencing by the
court," and also be informed "of the sentences which may be
imposed." L. 1985, c. 178, § 2; former N.J.S.A. 2C:11-3(f).
17 A-3730-10T2
The jurisprudence regarding proper jury instructions that
arose initially relied exclusively upon the express language of
the statute. Providing a non-unanimity instruction in the
sentencing phase of a death penalty case was first required in
Ramseur. There, citing extensively the language of former
N.J.S.A. 2C:11-3(c)(3)(c), and the then-recently enacted former
N.J.S.A. 2C:11-3(f), the Court held that "juries in capital
cases [must] be informed of, and free to exercise, their
statutory option to return a final, non-unanimous verdict
resulting in imprisonment if, after a reasonable period of
deliberations, they are unable to agree." Ramseur, supra, 106
N.J. at 300-01, 312. Accord State v. Bey (II), 112 N.J. 123,
180 (1988) ("To prevent unacceptable speculation about the
consequences of a non-unanimous verdict, the court must inform
the jury of its option of returning a final, non-unanimous,
verdict that would result in a minimum of thirty years of
imprisonment without parole."); see also State v. Hunt, 115 N.J.
330, 382-83 (1989) ("In a capital case, unlike the ordinary
criminal prosecution, jurors need not reach a unanimous verdict.
Thus, a decision not to agree is a legally acceptable outcome,
which results not in a mistrial, but in a final verdict.")
(emphasis added).
In Bey II, the Court also considered the need for unanimity
18 A-3730-10T2
regarding the finding of aggravating and mitigating sentencing
factors. Firmly tethering its conclusions to the language of
the statute, the Court said:
Although the Act does not expressly require
the jury to be unanimous in finding the
existence of an aggravating factor or
factors, the lack of unanimity suggests that
the factor has not been established beyond a
reasonable doubt as required by [former]
N.J.S.A. 2C:11-3(c)(2)(a). Requiring a
unanimous finding on the existence of an
aggravating factor is consistent with the
general requirement of unanimity in criminal
cases . . . . The unanimity requirement
extends only to verdicts adverse to the
defendant, and the Legislature may provide
for the return of a verdict favorable to the
defendant on less than unanimity. For
example, under the Act, the unanimity
requirement redounds to the benefit of the
defendant by mandating that he or she must
be sentenced to imprisonment rather than
death unless the jury is unanimous on the
imposition of the death penalty.5
[Bey II, supra, 112 N.J. at 159 (citations
to out-of-state authority omitted) (emphasis
added).]
Because the statute only required a defendant to "produc[e]
evidence of the existence of a mitigating factor," former
5
Of course, the statutory provision requiring imposition of a
sentence other than death if the jury could not reach unanimity
was also "favorable" to the defendant because it eliminated "the
customary practice in criminal trials that a hung jury results
in a mistrial, after which the State has the option of
instituting new proceedings against the defendant" and again
seeking the maximum penalty. State v. Brown, 138 N.J. 481, 512-
13 (1994).
19 A-3730-10T2
N.J.S.A. 2C:11-3(c)(2)(a), "jurors need not unanimously find the
existence of a mitigating factor." Id. at 159. As a result,
"[a]ny juror who believes in the existence of a mitigating
factor must be allowed to determine whether he harbors such a
[reasonable] doubt by conducting his or her own weighing
process." Id. at 160. Jury instructions advising jurors they
must unanimously agree as to any mitigating factor were,
therefore, improper and required reversal. Id. at 160-61.
The Court first extended the requirement of a non-unanimity
instruction to the guilt phase of a capital case in Brown.
There, the defendant argued "that the court should have
instructed the jury . . . to decide only whether it unanimously
found beyond a reasonable doubt that [he] had committed the
murders by his own conduct," the death penalty triggering
factor, thereby "informing the jury that a non-unanimous verdict
on that issue was acceptable and would not affect the murder
conviction." Brown, supra, 138 N.J. at 509. The Court decided
that
[a]lthough a jury verdict that a defendant
committed a murder by his own conduct must
be unanimous, unanimity is not required to
support a verdict that a defendant guilty of
murder did not commit the murder by his own
conduct. Rather, the inability of the jury
to reach a unanimous decision on the own-
conduct determination constitutes a final
verdict. . . .
20 A-3730-10T2
[Id. at 511.]
The Court further explained:
We acknowledge that the death-penalty
statute does not expressly provide for a
non-unanimous option in regard to the own-
conduct determination, although it
specifically authorizes a non-unanimous
verdict with respect to the weighing of
aggravating and mitigating factors.
[Former] N.J.S.A. 2C:11-3(c)(3)(c).
Nevertheless, the considerations underlying
the legislature's express recognition of
non-unanimous verdicts in the penalty phase
to determine whether a defendant receives a
life or death sentence apply with equal
force when a jury that has convicted a
defendant of murder decides whether that
defendant committed the murder by his own
conduct. . . . [W]hen a jury in a capital
case decides whether a defendant committed
the homicide "by his own conduct," its
determination establishes whether that
defendant will be eligible for the death
penalty. Although the consequences of the
own-conduct determination and the penalty-
phase verdict are not identical, the analogy
is compelling. In the context of
determining whether a jury should be
informed of its non-unanimous option, any
distinction is inconsequential.
[Id. at 516-17.]
"[T]he significance of the own-conduct determination in
triggering the penalty phase supports the conclusion that jurors
must be instructed on the nonunanimity option." Id. at 518.
In State v. Mejia, 141 N.J. 475, 486 (1995), the Court
extended this rationale to the then-death-penalty-triggering
factor that the defendant acted with "intent to kill," as
21 A-3730-10T2
opposed to with an intent to cause serious bodily injury that
resulted in death. The Court reasoned, "[l]ike the 'by your own
conduct' requirement, the 'intent to kill' requirement is not an
element of the offense of murder [but is] merely a triggering
device for the death-penalty phase of the trial." Ibid.
(citations and internal quotation marks omitted) (alteration in
original). Therefore, it was reversible error for the judge to
have failed to "inform the jurors they ha[d] an option to return
a non-unanimous, or reasonably-doubtful, finding on the
distinction between the intent to kill and to cause serious
bodily injury." Id. at 487.6
As a result, the model jury charges used in death penalty
prosecutions included a non-unanimity instruction regarding the
finding of a triggering event. For example, in a murder-for-
hire death penalty prosecution, judges were required to give the
following instruction:
Before you may conclude that defendant
procured the murder as an accomplice by
payment or promise of payment to another,
you must be unanimously convinced of that
6
In State v. Gerald, 113 N.J. 40, 89 (1988), the Court concluded
that under the New Jersey Constitution it was cruel and unusual
punishment to impose the death penalty when the actor's intent
was only to cause serious bodily injury. The constitutional
amendment that overturned Gerald had not taken effect when the
events in Mejia occurred. State v. Cooper, 151 N.J. 326, 362
(1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 154 L. Ed.
2d 681 (2000).
22 A-3730-10T2
beyond a reasonable doubt. If you have a
reasonable doubt on this issue or if you are
unable to reach a unanimous decision beyond
a reasonable doubt as to whether defendant
was an accomplice who brought the murder
about by payment or promise of payment to
another as distinguished from a mere
accomplice, that is a permissible final
verdict on this issue that would result in
the imposition of a non-capital sentence for
murder. . . .
[Judges Bench Manual for Capital Causes,
"Supplemental Charge on Accomplice Who Hired
Another (To Resolve the 'Trigger' Issue
Where Own Conduct Not in the Case," (Jan. 1,
2005) (emphasis added).]
The 2007 Amendments
In January 2006, the Legislature established the New Jersey
Death Penalty Study Commission (the Commission). See L. 2005,
c. 321 (effective January 12, 2006). The Commission was charged
with "study[ing] all aspects of the death penalty as currently
administered in the State of New Jersey[,] . . . propose new
legislation, if appropriate[, and] report its findings and
recommendations to the Governor and the Legislature, along with
any legislation it desires to recommend for adoption by the
Legislature[.]" Id. at §§ 2(b), 2(c), and 2(k).
In its final report, the Commission "recommend[ed] that the
death penalty in New Jersey be abolished and replaced with life
imprisonment without the possibility of parole[.]" New Jersey
Death Penalty Study Commission Report (Jan. 2, 2007) at 2. One
23 A-3730-10T2
of the Commission's specific findings was that "[t]he
alternative of life imprisonment . . . without the possibility
of parole would sufficiently ensure public safety and address
other legitimate social and penological interests . . . ." Id.
at 56. In support of this finding, the Commission noted:
"[r]eplacing the death penalty with life without parole would be
a certain punishment, not subject to the lengthy delays of
capital cases; it would incapacitate the offenders; and it would
provide finality for victims' families." Id. at 61.
The Commission's report included recommended legislation.
Id. at 68-77. On December 17, 2007, the Legislature approved L.
2007, c. 204, a bill that was "substantially similar to the bill
proposed by the . . . Commission . . . ." Senate Judiciary
Comm. Statement, supra.
Changes made by the 2007 amendments were sweeping and
exceeded mere elimination of the death penalty as a possible
sentence. Now, once a triggering factor is found, "a defendant
will receive a sentence of life without parole if the State
demonstrates beyond a reasonable doubt that one or more of the
statutory aggravating factors is present. The amended statute
does not permit the defendant to present mitigating factors."
State v. Fortin, 198 N.J. 619, 624 (2008) (citation omitted).
The Legislature also eliminated the requirement that the jury be
24 A-3730-10T2
told of the possible sentences that may be imposed. Compare
N.J.S.A. 2C:11-3 with former N.J.S.A. 2C:11-3(f). Most
important to the issue we face, the 2007 amendments completely
eliminated any statutory reference to the option of a non-
unanimous verdict at any stage of the prosecution.
C.
We conclude that in this case the judge was not required to
provide a non-unanimity instruction regarding the triggering
factor that made defendant eligible for a mandatory life
sentence without parole. We reach this decision for several
reasons.
We presume that prior to passage of the 2007 amendments,
the Legislature was fully aware of not only its prior enactments
but also precedent that evolved under the death penalty statute.
See e.g., State v. Greeley, 178 N.J. 38, 46 (2003) ("When
ascertaining legislative intent, we can infer that the
Legislature was 'familiar with its own enactments, with judicial
declarations relating to them, and . . . passed or preserved
cognate laws with the intention that they be construed to serve
a useful and consistent purpose.'") (quoting State v. Federanko,
26 N.J. 119, 129 (1958)). See also Josephs, supra, 174 N.J. at
139-40 (discussing the Legislature's familiarity with and
response to the Court's death penalty jurisprudence).
25 A-3730-10T2
Our recognition of the Legislature's familiarity with the
topic is only strengthened by its initial decision to form the
Commission to study the issue and make recommendations. The
Commission's recommendations eliminated any statutory references
to the validity of non-unanimous verdicts, and the Legislature
ultimately adopted, in essence, the Commission's
recommendations.
In addition, the entire line of cases that first adopted
the requirement of a non-unanimity instruction in the sentencing
phase of death penalty cases, and extended that to the guilt
phase determination as to a triggering factor, had its genesis
in statutory language that has since been repealed. The Brown
Court, which first extended the requirement for the charge to
the guilt phase, did so only because it found a "compelling"
"analogy" between "the consequences" of a jury's decision on a
triggering factor "and the penalty-phase verdict[.]" Brown,
supra, 138 N.J. at 517-518. Of course, when Brown was decided,
the "consequences" of the penalty phase reflected a choice
between life and death; the Legislature has now eliminated one
of those possible consequences.
Furthermore, it is clear that the Court never grounded its
requirement for a non-unanimity instruction in the guilt phase
of a capital prosecution upon the State Constitution. Nor could
26 A-3730-10T2
it have relied upon the federal constitution, because the United
States Supreme Court has expressly rejected the claim that a
non-unanimity instruction is required in capital sentencing
proceedings. Jones v. United States, 527 U.S. 373, 379-84, 119
S. Ct. 2090, 2097-2100, 144 L. Ed. 2d 370, 381-84 (1999).
Indeed, the Jones Court specifically disapproved of New Jersey's
requirement "that the jury be informed of the sentencing
consequences of nonunanimity." Id. at 383, 119 S. Ct. at 2099,
144 L. Ed. 2d at 383 (citing Ramseur, supra, 106 N.J. at 304-
315).
Our decision is further supported by the Court's frequent
recognition that death was a sentence qualitatively different
from all others. See, e.g., Bey II, supra, 112 N.J. at 101
(referring to the death penalty as "'a punishment different from
all other sanctions in kind rather than degree'") (quoting
Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S. Ct. 2978,
2991, 49 L. Ed. 2d 944, 961 (1976)). As a result, the Court has
described its "capital jurisprudence [as] stressing the
importance of providing a jury with every opportunity to spare a
defendant's life." Cooper, supra, 151 N.J. at 362.
In Cooper, the defendant argued that Brown and Meija
compelled a non-unanimity instruction permitting the jury to
return a non-unanimous verdict as between felony murder, to
27 A-3730-10T2
which the death-penalty did not apply, and knowing and
purposeful murder, to which it did. Id. at 357. The Court
rejected the argument, noting that "[t]hose cases have been
restricted to capital murder," and "decline[d] to extend that
jurisprudence to noncapital murder." Id. at 362. "The
fundamental difference in nature between a sentence of death and
a sentence of life without parole suggests that, where the
jurisprudence differs between death penalty cases and subsection
b(4) cases, it will be to remove protections put in place by the
courts in favor of defendants that were applicable in death
penalty cases only." Cannel, supra, comment 7 on N.J.S.A.
2C:11-3 (2013).
Lastly, defendant has not cited us to and our independent
research fails to reveal that any state has taken the path
defendant urges. Within the past 100 years, thirteen other
states and the District of Columbia have repealed their
respective death penalty provisions. Some of them previously
had rejected the non-unanimity instruction in capital cases, and
none of them has yet required such an instruction in non-capital
cases.
For all these reasons, we are firmly convinced that a jury
need not be instructed that it may return a non-unanimous
28 A-3730-10T2
verdict on any triggering factor under the current statutory
scheme for murder in New Jersey.7
Affirmed.
7
Defendant has not argued that a non-unanimity instruction was
required when the jury was considering the aggravating
sentencing factor. We do not, therefore, address that issue
except to note that much of the rationale for our decision would
apply equally if such an argument had been raised.
29 A-3730-10T2