Decided: October 12, 1984.
STATE OF NEW JERSEY, PLAINTIFF,
ROY D. SAVAGE AND CHERYL HUBBARD, DEFENDANTS
[198 NJSuper Page 508]
Defendants have been jointly indicted. Only defendant Savage is charged with a capital offense. The court must decide whether to try the defendants jointly, with or without "death qualification", or to sever the cases.
Defendant Roy Savage was indicted for murder under N.J.S.A. 2C:11-3a(1) and (2). A notice of aggravating factors has been filed, R. 3:13-4. Savage has also been charged with hindering apprehension in violation of N.J.S.A. 2C:29-3. In a separate count of the same indictment, defendant Cheryl Hubbard has also been charged with hindering apprehension. Ms. Hubbard is not charged with murder or with any conspiracy to commit the murder. Rather, the exclusive charge against Ms. Hubbard relates to the post death efforts to find Mr. Savage
[198 NJSuper Page 509]
and to prosecute him for the murder. Under these circumstances, where the alleged murder and post-murder events are separate, the court must conclude that severance is appropriate.*fn1
In State v. Bass, 189 N.J. Super. 461 (Law Div.1983), the court held that legislative policy embodied in N.J.S.A. 2C:11-3(c) evidenced an intent for "death qualification" to occur before the guilt phase of a capital prosecution; otherwise the legislative intent to have both phases of a capital prosecution before the "same jury" would not be promoted. In State v. Monturi, 195 N.J. Super. 317 (Law Div.1984), the court indicated that it could determine before the guilt phase of a capital case that a separate jury would be utilized and qualified for the penalty phase. However, the court concluded that legislative policy required "death qualification" and capital jury selection before the guilt phase, subject to a post verdict determination that a second jury could be empanelled for the penalty phase. The notion that the "same jury" could be "death qualified" after the guilt phase was rejected, in part, because prospective capital jurors must be interviewed individually before the exercise of peremptory challenges. See Id. at ftn. 1; 195 N.J. Super. at 325, R. 1:8-3(a). Moreover, if death qualification followed the guilt phase, it is possible that not enough jurors would remain to hear the penalty phase due to their absolute views for or against the death penalty (whether or not alternates could be used to constitute the "same jury").
[198 NJSuper Page 510]
The court now holds that there should be a severance of defendants jointly indicted in the absence of a charge in common relating to the alleged murder.*fn2 As a result, the defendant who is not charged with murder would not participate in the jury selection process unique to a capital case or to joint proceedings with a defendant on trial for a capital offense. In turn, the legislative policy favoring trial of all phases of a capital case before the "same jury" will be promoted.
There are three alternatives which the court could follow. The matter could proceed with individual juror voir dire, R.1:8-3(a), "death qualification" and joint trial as to both defendants. However, that alternative must be rejected under the facts of this case where Ms. Hubbard is not charged with murder. Procedures unique to a capital case require the individual interview of jurors and extended proceedings. See R. 1:8-3(a). Moreover, although this court has rejected the notion that "death qualification" is unconstitutionally prejudicial to a defendant charged with a capital offense, see State v. Bass, supra; compare Grigsby v. Mabry, 569 F. Supp. 1273 (E.D.Ark.1983), the process must be deemed to require consideration of subjects not relevant to the non-capital defendant. "Death qualification" has been upheld, and Grigsby rejected, with respect to defendants charged with a capital offense. See, e.g., Hutchins v. Woodard, 730 F.2d 953 (4th Cir.1984), see also Woodard v. Hutchins, U.S. , 104 S. Ct. 752, 78 L. Ed. 2d 541 (1984)); Rector v. Arkansas, 280 Ark. 385, 659 S.W. 2d 168 (1983), cert. den. U.S. , 104 S. Ct. 2370, 80 L. Ed. 2d 842
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(1984); Pruett v. Arkansas, 282 Ark. 304, 669 S.W. 2d 186 (1984); People v. Fields, 35 Cal. 3d 329, 197 Cal.Rptr. 803, 673 P. 2d 680 (1983). See also Maggio v. Williams, 464 U.S. 46, 104 S. Ct. 311, 78 L. Ed. 2d 43 (1984). This subject need not be explored with respect to the trial of capital and non-capital defendants jointly because severance is appropriate in this case.*fn3
The second alternative is to try both defendants jointly before one jury and to "death qualify" the jury if the capital defendant is convicted of a "purposeful" or "knowing" murder "by his own conduct." If enough jurors do not remain,*fn4 a second jury will be empanelled after the new jurors are individually interviewed and "death qualified." See R. 1:8-3(a). In this way the joinder would be preserved and no defendant prejudiced by the capital jury selection process.
There is no doubt that defendants can be tried together in a capital cause. See e.g., State v. Mayberry, 52 N.J. 413, 421-422 (1968); State v. Laws, 50 N.J. 159, 175 (1967), on reargument 51 N.J. 494, cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); State v. Sinclair, 49 N.J. 525, 550 (1967); after remand 57 N.J. 56 (1970); Reaves v. State, 242 Ga. 542, 250 S.E. 2d 376, 382-383 (1978); see also State v. Dolbow, 117 N.J.L. 560 (E & A); app. dis. 301 U.S. 669, 57 S. Ct. 943, 81 L. Ed. 1334 (1937); R. 3:7-6; R. 3:15. However, in this case the defendants were not indicted jointly for the crime of murder, the only offense for which the death penalty may attach.
Given the court's discretion in terms of granting a severance in such circumstances, e.g., State v. Laws, supra; State v. Sinclair, supra; Kelley v. State, 248 Ga. 133, 281 S.E. 2d 589
[198 NJSuper Page 512]
(1981); Reaves v. State, supra, and given the strong legislative policy favoring trial of both phases of a capital case before "the same jury," a severance of defendants appears the proper alternative. Severance in such circumstances is appropriate because of the distinct nature of the offenses and in the absence of a charge in common relating to the alleged murder. Cf., eg., State v. Pickles, 46 N.J. 542 (1966); State v. Tapia, 113 N.J. Super. 322 (App.Div.1971); State v. Orlando, 101 N.J. Super. 390 (App.Div.1968), certif den. 52 N.J. 500 (1968); State v. Kropke, 123 N.J. Super. 413 (Law Div.1973). Compare State v. Mayberry, supra; State v. Laws, supra; State v. Sinclair, supra. See also R. 3:15-2.
Perhaps where two or more defendants are jointly charged with murder and only one is charged with murder "by his own conduct" and subject to a notice of aggravating factors, the case should be tried jointly as to all defendants with or without procedures unique to a capital prosecution. Cf. State v. Laws; State v. Sinclair, supra.*fn5 See also, eg., Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). In those circumstances, if "death qualification" does not precede the guilt phase, a second jury can be selected and "death qualified" before the penalty phase. However, where only one defendant is charged with murder, a notice of aggravating factors is filed as to that defendant, and another defendant is charged in the same indictment with an offense other than the murder, the case should be severed as to defendants and the matter shall proceed as a capital prosecution involving the defendant charged with murder. Legislative policy will be preserved with
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death qualification before the guilt phase to promote disposition of all issues before the same jury.*fn6
I conclude that severance of defendants is required under the circumstances of this case where defendant Savage is charged with offenses including capital murder and defendant Hubbard is charged in one count with hindering apprehension, a subject which arises after the alleged murder and which is incidental to it.*fn7