Feinberg, J.s.c. (retired and temporarily assigned on recall).
[219 NJSuper Page 673] This is a motion by defendant, Marcellies T. Pettiford, to sever his trial from defendant, Jericho Wilkins, pursuant to R. 3:15-2(b).*fn1 Under indictment no. 1-1-87 both defendants are charged with the purposeful or knowing murder of James Hutchins on May 26, 1986 contrary to N.J.S.A. 2C:11-3a(1), (2). Both defendants are charged with two counts of illegal weapon possession contrary to N.J.S.A. 2C:39-5b, -4a. Additionally, Marcellies Pettiford is charged with two counts of witness tampering on or between June 23, 1986 and June 24, 1986, and on September 10, 1986 contrary to N.J.S.A. 2C:28-5. Jericho
Wilkins has been presented with a notice of aggravating factors pursuant to N.J.S.A. 2C:11-3c(2). The question before the court is whether the initial joinder of defendants was proper, if so, is the noncapital defendant unduly prejudiced by participating in the uniqueness of a capital cause, i.e., "the death qualification of the jury,"*fn2 so that he is unable to receive a fair trial.
Oral argument was heard on this matter on May 29, 1987, appearances having been entered by Nicholas E. Caprio, for defendant, Marcellies T. Pettiford; Terence M. Scott, for defendant, Jericho Wilkins; and Gary J. Bogdanski, Assistant Prosecutor, Essex County, appearing for the State. Defendants were not present. The motion for severance was denied. This opinion supplements the court's decision.
The court is presented with a novel issue and the only reported case that appears to shed light is State v. Savage, 198 N.J. Super. 507 (Law.Div.1984). In Savage one defendant was charged with murder, the other defendant with hindering apprehension after the murder. The court decided to sever the two defendants. The State contends that Savage does not apply since both defendants here are charged with murder. Although the actual holding in Savage may not apply because of the factual differences, there is dictum that is suggestive as to avenues the court may consider when trial is proceeding against two defendants charged with murder where only one is a capital defendant. The court stated:
This opinion does not address the situation where two or more defendants are charged with murder and only one is subject to a capital prosecution. In that type of situation where the co-defendants are charged with felony murder, or are charged as accomplices not subject to a capital prosecution; the court should be able to determine pretrial that the joinder was proper, that the co-defendants would be prejudiced by the participation in the jury selection process unique to a capital cause, and if one defendant is convicted of a purposeful or knowing murder by his own conduct, a second jury will be selected for the penalty phase. [ Id. at 510, n. 2]
The court in Savage was thus of the opinion that one way to avoid possible prejudice in the matter, once the court finds the initial joinder is proper, is to try the defendants together without qualifying the jury, and then, if necessary, select and qualify a second jury for the penalty phase. However, the Savage opinion goes on to state: " In appropriate circumstances, with proper joinder, a non-capital defendant may be required to participate in the capital jury selection." Id. at 511, n. 3; emphasis supplied. This court believes the appropriate circumstances exist in the case at hand for the noncapital defendant to participate in the capital jury selection.
The initial joinder of defendants and the counts under the indictment was in this case proper. The defendants charged under the indictment are alleged to have participated in the same act or series of acts constituting offenses contrary to the laws of the State.*fn3 Additionally, the State contends the same witnesses will be used in the prosecution of defendants. Although both defendants are charged with the same murder, as well as the same weapon possession charges, only one defendant, Marcellies Pettiford, faces two counts of witness tampering. Pettiford argues that he will be prejudiced by this additional charge, and this alone should dictate severance of defendants. It is apparent to the court that Pettiford lacks standing to claim that the additional counts toward him warrant a severance of defendants.*fn4 As to whether the counts of
witness tampering should be severed from the other counts of the indictment. R. 3:7-6 provides:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same acts or transactions or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.
Here, the witness tampering grew out of the same criminal episode or, in this case, murder, which is the subject of the indictment. The alleged commission of a crime and subsequent alleged acts taken to evade prosecution of that very crime constitute a common scheme or plan. There is, indeed, sufficient nexus between the witness tampering counts and the other counts of the indictment. In fact, count ...