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State v. McCrary

Decided: June 26, 1984.


On certification to the Superior Court Law Division, Essex County.

For modification, affirmance and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollack and Garibaldi. Dissenting -- Justice O'Hern. The opinion of the Court was delivered by Clifford, J. Handler, J., concurring. O'Hern, Justice, Dissenting. Handler, J., concurring in the result.


[97 NJ Page 135] Under the New Jersey Code of Criminal Justice (Code), a defendant convicted of purposeful or knowing murder will be sentenced to death if one or more statutorily-specified aggravating factors exist and are not outweighed by one or more mitigating factors. N.J.S.A. 2C:11-3a, c. The Code requires the prosecuting attorney to give defendant notice of any aggravating factor that he intends to prove, either "[p]rior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor * * *." N.J.S.A. 2C:11-3c(2). The issue is whether the Code and our Rules permit judicial review, prior to trial, of the

factual basis for aggravating factors, and, if so, by what kind of hearing that review should be conducted.


Defendant, Victor McCrary, was indicted for purposeful or knowing murder, N.J.S.A. 2C:11-3a(1), (2); aggravated assault, N.J.S.A. 2C:12-1b(1); unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and possession of a firearm with a purpose to use the weapon unlawfully, N.J.S.A. 2C:39-4a.

Statements taken from witnesses disclosed that on January 2, 1983, Lavon Jackson, Barbara Frye, and the deceased, Willie Jones, were present with others at Harold Glass's East Orange apartment. At approximately 8:00 p.m. the defendant, Victor McCrary, and an unidentified companion arrived at the apartment. An altercation ensued between Glass and defendant that ended with McCrary leaving the apartment.

At approximately 11:00 p.m. there was a knock at the apartment door. Willie Jones and a man described as "Poochie" went to answer it. Ignoring Glass's warning, Willie Jones opened the door, whereupon he was killed by a bullet fired into his forehead at point-blank range. A second bullet struck Glass in the abdomen. Two other bullets were fired, one into the molding of the apartment door and the other into a wall near a bathroom to which Barbara Frye had fled.

Through the use of photographic arrays, the witnesses identified McCrary as the gunman. Although all the witnesses agreed that when Jones opened the door, McCrary opened fire immediately, the report of the incident furnished by the East Orange police contained Glass's statement that before the shooting started, McCrary said, "This is a hold up." In a subsequent statement given to the police Glass failed to make any mention of the alleged attempted robbery.

Pursuant to the procedure set forth in N.J.S.A. 2C:11-3c(2) and Rule 3:13-4(a), the State gave notice prior to trial of its intention to prove at the sentencing proceeding the following

aggravating factors to support the imposition of a death sentence:

In the commission of the murder, the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim;

The offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery * * *.

[ N.J.S.A. 2C:11-3c(4)(b), (g).]

Defendant moved to strike these aggravating factors as "totally unsupported by the evidence." In response the State argued that prosecutorial charging discretion foreclosed the trial court from exercising jurisdiction.

The trial court rejected this contention, ruling that it could appropriately exercise jurisdiction to review the sufficiency of aggravating factors that the State intends to prove at the sentencing proceeding. It ordered a hearing as to the sufficiency of the proof of aggravating factors, indicating that the parties could introduce testimony at the hearing if they were unable to stipulate what that testimony would reveal. The standard would be the same as that applicable to motions to dismiss indictments -- that is, no aggravating factor would be dismissed unless evidence were clearly lacking to support the factor challenged. The court ruled further that the State would bear the burden of submitting proof that evidence to support an aggravating factor was not clearly lacking. The defense could conduct limited cross-examination directed at determining whether the State had submitted prima facie proof of those aggravating factors of which the prosecution had given notice. Finally, the court ruled that credibility would not be an issue in cross-examination, and that hearsay would be admissible.

The Appellate Division granted the State's motion for leave to appeal from the order for a hearing and defendant's cross-motion for leave to appeal from so much of the order as permitted the introduction of hearsay evidence. We certified the cause directly, 95 N.J. 228 (1983), and, subject to the

modification set forth below, now affirm. As a cautionary note we add that our willingness to entertain this appeal and cross-appeal carries with it no implication of any view on questions of constitutionality or statutory interpretation not squarely presented by these proceedings.


In opposing the hearing ordered by the trial court the State contends that the court "lacks the power" to make a pretrial determination of the sort envisioned by the order; and that even if the court has the power to review a prosecutor's decision to notify a defendant of his intention to prove an aggravating factor, nevertheless "that review should be limited to a consideration of the information upon which the prosecutor acted and a determination of whether the prosecutor's decision constitutes a gross and patent abuse of his discretion."

The prosecutor's obligation to give independent notice of any aggravating factors he intends to prove at a capital sentencing proceeding arises "at such time as he has knowledge of the existence" of those factors. N.J.S.A. 2C:11-3c(2). When notice is given, it must be accompanied by "all discovery bearing on" the aggravating factors. R. 3:13-4(a). This Rule was adopted in September 1982 to provide for additional discovery in capital cases. Pressler, Current N.J. Court Rules, Comment R. 3:13-4.

As to the intent of the notice provisions of the Code, the legislative history is uninformative beyond disclosing a purpose of avoiding delays and furnishing a defendant adequate time within which to prepare a defense. Because the legislation is silent as to a hearing, the State contends that the judiciary lacks jurisdiction to review the State's allegation of aggravating factors until after the sentencing phase of a capital case -- that is, the traditional after-the-event appellate review. To permit a pretrial evidentiary hearing, argues the State, amounts to a breach of separation of powers.

At the outset we recognize a difference in impact between subject matter jurisdiction and the separation-of-powers doctrine. Without subject matter jurisdiction our consideration of the case would be "wholly and immediately foreclosed." Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 700, 7 L. Ed. 2d 663, 674 (1962), quoted in Gilbert v. Gladden, 87 N.J. 275, 281 (1981) (holding governor's "pocket veto" presents a nonjusticiable political question). Separation of powers, however, takes us beyond the issue of jurisdiction over the controversy to the question of whether the exercise of jurisdiction in a particular case encroaches upon powers constitutionally entrusted to another branch of government. When we have found that such power is properly reposed elsewhere, we have stayed our hand. See, e.g., Gilbert v. Gladden, supra, 87 N.J. 275; Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55 (1978). See generally Gibbons, "The Interdependence of Legitimacy," 5 Seton Hall L.Rev. 435, 436 (1974) (separation of powers contemplates a dispersal of decisional responsibility in the exercise of each power).

In this case we harbor no doubts about our jurisdiction to address the issues presented, nor do we hesitate to exercise that jurisdiction. Under the New Jersey Constitution "judicial power" is vested in this Court and all inferior courts. N.J. Const. (1947), art. VI, ยง 1, para. 1. That power has been construed as the repository of the judicial authority to fashion remedies. See State v. Leonardis, 73 N.J. 360, 369 (1977). In no context is this judicial power to fashion remedies more appropriately exercised than in a criminal case. See, e.g., State v. Carter, 64 N.J. 382, 392 (1974).

When a criminal proceeding takes on the character of a capital case, the exercise of such authority is not only tenable, it is absolutely imperative to ensure fundamental fairness to a defendant. There is a qualitative distinction between death and imprisonment. "Because of that qualitative difference, there is a corresponding difference in the ...

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