On appeal from the Superior Court, Law Division, Essex County.
Morton I. Greenberg, Long and Havey. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before this court on appeal from a judgment of conviction and the sentences entered thereon in this criminal case. Defendant, through his attorney and pro se, advances various grounds for relief including a contention that notwithstanding the fact he was not sentenced to die, the death qualification of the jury infringed upon his rights to a fair and impartial jury under both the federal and state constitutions. While this court is aware that similar challenges have been made in other cases in New Jersey, it appears that no appellate court in this State has ruled upon the validity of the death qualification process after the death penalty was restored by L. 1982, c. 111.
The case originated when defendant, Donald Wilson and Robert Davis were indicted for offenses arising from the murder and robbery of Otha Thompson in Newark on January 26, 1983. All three men were charged with felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); first degree armed robbery,
N.J.S.A. 2C:15-1 (count three); and unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count four). In addition defendant alone was charged in count two with a purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (2). Defendant pleaded not guilty to all charges.
On January 30, 1984, the trial court denied a pretrial motion by defendant to prevent death qualification of jurors. Thereafter defendant, in a jury trial in which he was the only defendant, was found guilty on all counts. At a subsequent sentencing proceeding the death penalty was eliminated as a possible punishment. See N.J.S.A. 2C:11-3c(3). Thereafter, defendant was sentenced as follows: the conviction on count one for felony murder was merged into the conviction on count two for purposeful or knowing murder and the conviction on count four for unlawful possession of a weapon was merged into the first degree robbery conviction on count three. On count two defendant was sentenced to life imprisonment with a 30 year period of parole disqualification. On count three he was sentenced to a consecutive term of 15 years with a seven and one-half year period of parole disqualification. In addition, penalties of $500 and $200 were imposed on counts two and three, respectively, for the use of the Violent Crimes Compensation Board.
Defendant has appealed, raising the following contentions through his attorney:
(1) The process of death qualification in the present case deprived the defendant of his right to a fair and impartial jury as guaranteed by the federal and state constitutions.
B. An analysis of the death qualification process.
C. The factual circumstances of the present case.
1. Death qualification and juror attitudes.
2. Death qualification and juror behavior.
3. The process of death qualification.
D. The death qualification procedures denied to the defendant his right to a jury drawn from a fair representative ...