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State v. Koedatich

Decided: August 3, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES JEROLD KOEDATICH, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Morris County.

For affirmance of conviction, reverse, sentence and remand -- Chief Justice Wilentz, and Justices Pollock, Garibaldi and Stein. For reversal -- Justices Clifford, Handler and O'Hern. The opinion of the Court was delivered by Garibaldi, J. Clifford, J., dissenting. Handler, J., dissenting. Justice O'Hern joins in Part II of this dissent.

Garibaldi

In October 1984, a Morris County jury convicted the defendant, James J. Koedatich, for the murder of Amie Hoffman and sentenced him to death. He appeals directly to this Court as of right. See R. 2:2-1(a)(3). We affirm defendant's murder conviction. Because the trial court failed to instruct the jury properly in the sentencing phase, however, we must reverse the sentence of death and remand for a new sentencing procedure.

I.

Facts

A. The Disappearance, Discovery of the Body, Investigation, and Arrest

In November 1982, Amie Hoffman was an eighteen-year-old senior and a cheerleader at Parsippany Hills High School. She was employed part-time at the Surprise Store in the Morris County Mall. She was last seen alive at approximately 9:30 p.m. on November 23, 1982, shortly after she left work as she walked toward her car in the parking lot of the Morris County Mall. Two days later on Thanksgiving Day, November 25,

1982, the police discovered her body floating face-down in a water retention tank located in a wooded and secluded area of Randolph Township. Amie Hoffman had been stabbed several times, receiving a wound to the chest, which caused her to bleed to death. Medical evidence submitted at trial indicated that Amie had been the victim of a sexual assault. Other medical evidence established that she died approximately three to four hours after she left the mall.

Testimony at trial established that Amie's life for the few days prior to her death was relatively uneventful. On Sunday, November 21, 1982, Amie awoke at 10:30 a.m., and at 12:30 p.m. her childhood friend and fellow cheerleader, Karyn Speak, arrived and drove Amie to Timothy Day's home, where with a group of friends she watched a football game on television. At the conclusion of the football game, Day drove his friends to the Rainbow Lakes Firehouse in Intervale, where a spaghetti dinner took place in honor of the school's cheerleaders and football players. At the firehouse, there occurred an accident that forced Karyn Speak to seek emergency medical treatment at the hospital. Amie accompanied Mrs. Speak, Karyn's mother, to the hospital, and remained there for about ninety minutes while Karyn was treated. Amie then returned to Karyn's house and remained until about 11:00 p.m., when a high school classmate who had been at the Firehouse dinner drove her home.

On Monday, November 22, 1982, Amie woke early but did not go to school because of menstrual cramps. Amie and her mother spent most of the day talking and that evening they visited the Weavers, close family friends.

The next day, November 23, 1982, Amie still felt sick, so she did not go to school at the usual time. Instead, she slept late, and after chatting with her mother, Amie went to school and had lunch with her friend Karyn Speak, who had suffered only minor injury at the Firehouse dinner. Amie then accompanied Karyn Speak to a dentist's appointment in Denville. The girls

returned to school at 2:30 p.m. because cheerleading practice was scheduled for that afternoon. Practice ended about 4:45 p.m. Karen Ersek, whose locker was next to Amie's, notice that Amie was wearing purple underwear, a brownish-purple sweater, a plaid skirt, and cowboy boots. Amie dressed quickly and left at about 5:05 p.m. for her part-time job at the Surprise Store for women (there was also a Surprise Store for men) at the Morris County Mall.

According to Christene Gonzalez, who worked at the companion Surprise Store for men, Amie arrived at work shortly after 5:00 p.m. Amie took a dinner break "[a]fter 8:00, not later than 8:30" p.m.; she went to McDonald's, ordering a Coke, french fries, and Chicken McNuggets. Barbara Horwath, an employee of the neighboring Kodak Jewelers, who regularly used the Surprise Store's restroom, saw Amie eating the fries at 8:15 p.m.

Christene saw Amie again at 9:20 p.m. when Christene helped Amie close the women's store and Amie returned the favor at the men's store. Although Christene needed a ride home that evening, Amie did not offer her a ride because her mother was going to give her a permanent that night. The girls left the mall at about 9:35 p.m. with Amie carrying a knapsack bookbag. At the mall exit, Christene said goodnight to Amie and turned right while Amie turned straight back through the emptying parking lot to her car.

Barbara Horwath left the Kodak Jewelers a few minutes earlier than Amie had left the Surprise Store. Like Amie, she walked out of the main exit straight to the back lot; she walked with three other employees, gradually splitting up until she remained with one colleague, Debby McLain. They stopped to chat for five minutes. While they were talking, Barbara noticed in front of them a greenish blue vehicle, with a vinyl roof and what she described as putty marks on the driver's side. The driver's side window was down four inches, and she could see the driver in profile. His eyes were "dark," his hair curly

and "light, light colored blond, curly hair," and his nose was "pointy." At one point, the driver turned toward them. Barbara could see dark markings on the sides of his nose and under his eyes. His nose was "prominent," his hair was shoulder-length, and she saw "gold around the collar."

Barbara said goodnight to Debby McLain, then walked past the car she had observed; she saw six rear lights, three on each side, and identified the car as a Chevy similar to her sister's Chevy BelAir. She got into her car and drove down toward the Mall. As she left, she saw Amie walking "up the parking lot" toward her car.

Amie's mother expected her home at about 9:45 p.m. for her permanent. When Amie had not arrived nor called, as she generally did whenever she was going to be late, Mrs. Hoffman drove to the Mall to search for her. She arrived at the Mall at 10:30 p.m. and found Amie's car sitting alone in the parking lot. The keys were in the ignition and Amie's jacket and pocketbook, with her wallet in it, were in the car. She called the police. Patrolman William Plate, a Hanover Township canine handler, responded to the Mall with his dog, Barron, to investigate a report of a missing person. Once at the mall, Plate met Mrs. Hoffman at Amie's car and attempted to get a track with Barron. After scenting, Barron tracked about two parking spaces from Amie's car but then stopped. Plate interpreted Barron's behavior as indicating that the scent ended there.

On Thanksgiving Day, November 25, 1982, the police found Amie's body in the center holding tank in the area known as "Old Mendham Water Works," located in Randolph Township. The holding tanks are made of cement and are in a very isolated area surrounded on three sides by woods. Combs Hollow Road is located about 100 yards to the west of the holding tanks with a dirt road actually leading to the tanks. A bridge separates Combs Hollow Road and the dirt road.

When discovered in the center holding tank, Amie was wearing the same panties, sweater, skirt, and cowboy boots she had

worn two days earlier when she was last seen. Cut hair was found around the body as well as on the ground outside the tank. There were blood stains on the sides of the tank. Amie's ring was found on the ground near the center tank and her wristwatch was found in the holding tank. A kidney-shaped pool of blood eighteen inches long and nine inches wide was found on the sandy ground near the tank. A trail of blood led from the kidney-shaped pool to the wall of the holding tank to the right hand corner of the center tank. The police removed Amie's body from the water.

Dr. Frederick L. Roddy, First Assistant Medical Examiner of Morris County, performed the autopsy. Dr. Roddy found a long open gash on the left side of the victim's head, an L-shaped wound to the victim's right shoulder, and "short injuries" at the base of the victim's neck. The victim's left ear had been severed, leaving a deep wound that, in Dr. Roddy's view, would not have caused death but would have prevented the victim from holding her head straight; this wound extended through all of the victim's soft tissue to the spinal column. There was a short laceration at the base of the victim's nose, and two severe chest wounds, one penetrating four and a half inches, the other penetrating more than seven inches, through the victim's lungs and to her back between the ninth and tenth ribs. Dr. Roddy concluded from the structure of these wounds that they were caused by a single-edged knife held perpendicular to the victim's chest; he hypothesized that the knife was inserted, causing the four and a half inch wound, then partially withdrawn, then thrust in deeply, causing the seven inch wound. The victim had defensive wounds on her right hand, as though she had attempted to grasp the blade of the knife. There were also abrasions and bruises on the victim's left thigh and lower left arm, consistent with her having been dragged over the retention tank wall.

Dr. Roddy's internal examination revealed that the victim "had apparently eaten a short time prior to her death. In the stomach we found fragments of white meat from chicken.

There was a portion of what appeared to be french fries and also a piece of what appeared to be a roll." Based on this evidence, Dr. Roddy estimated that the "time of death was probably four to five hours after she had eaten her last meal." In his internal examination of Amie Hoffman, Doctor Roddy also took swabbings of her oral cavity, vagina, and rectum, and made twelve slides from these swabs. He kept and examined six slides and sent the rest to the Medical Examiner's office in Newark. Sperm was found in the vaginal slides, which indicated that Amie had sexual intercourse before her death. Dr. Roddy found no presence of sperm on the rectal slides. Dr. Robert Goode, the State Medical Examiner, examined the six slides that Dr. Roddy sent to him. He concurred with Dr. Roddy's finding of sperm in the vagina and estimated that intercourse occurred within twenty-four hours of death. His examination revealed, however, that sperm was present in the rectal slides as well. On the basis of the autopsy, Dr. Roddy concluded that the victim "bled to death and the cause of the bleeding was the stab wound in the right chest" (i.e., the seven-inch stab wound).

As the investigation into the homicide began, the police talked to various people who had been in the vicinity of the Mall or the reservoir on the night of November 23, 1982. From Ms. Horwath's observations, the police drew composites of the car and driver she had seen in the parking lot. On December 5, 1982, because of a similarity of the vehicle and facial appearance to the Horwath composite, a Patrol Officer of the Morris County Park Police stopped the defendant, James Koedatich. The officer's notes reflect that Mr. Koedatich was 5'10 1/2" to 6' tall, with a beard and mustache. The composite sketch was "of a suspect, blond, curly hair, possible facial hair." For reasons undisclosed in the record, the Officer did not detain Mr. Koedatich at that time.

Other information obtained during the early stages of the investigation came from persons who were in the vicinity of the reservoir on the night of the murder. Police interviewed Timothy

O'Grady, who had been visiting his girlfriend's mother at her home on Morris Turnpike near the reservoir on the night in question. O'Grady left at about 10:15 p.m. to get home in time to phone his girlfriend, who was away at college. O'Grady turned onto Combs Hollow Road, bearing in the direction of the dirt access road to the reservoir. He noticed a pair of headlights by the access tanks near the reservoir; the lights were heading away from the tanks down the access road. He paused before a narrow bridge on Combs Hollow Road to let the car pass; the car had come down the access road by this time. The other car had four headlights, mounted side-to-side with parking lights beneath, and a grated grill; the car was a medium to light blue. O'Grady recalled that the car's high beams were on. Once he reached home, O'Grady, an automobile aficionado, identified the car in a manual as a 1970 Chevrolet two-door. He told police that there was only one person in the car, and that this single operator was probably a male who might have had a mustache but no beard.

Police also interviewed Mrs. Mary Clark, who lived on Combs Hollow Road and who heard, at about 12:45 p.m. on November 24, 1982, "what sounded like a small sports car go by the house slowly" from the direction of the retention tanks. She did not know whether the car had come from the access road to the retention tanks. Detective Richard Longo, who interviewed Mrs. Clark, recounted that she told him that she got out of bed when she heard the engine but saw no headlights, and that the vehicle went up the road, turned around, and came by her house again; Mrs. Clark later did not remember telling the officer those things. Few other leads were available to the police during the early stages of their investigation.

Amie Hoffman's killing was followed two weeks later by the abduction and murder of twenty-five-year-old Deirdre O'Brien

on December 5, 1982.*fn1 As of January 15, 1983, no suspect had been arrested or charged with either the Hoffman or O'Brien murders. The defendant was a suspect in neither case.

At 11:20 p.m. on January 16, 1983, Patrolman Kevin Dormer responded to a call from 44 Harrison Street in Morristown. On entering the house, the Patrolman saw James Koedatich leaning against the kitchen table, his T-shirt rolled up; Julia Baldwin, Koedatich's mother, was washing a wound on Koedatich's back. Mr. Koedatich told police that he had been driving home on Route 24 when he was pulled over by a car with a flashing blue light and that the driver of the car had stabbed him. Mr. Koedatich was taken by ambulance -- unaccompanied by police -- to Morristown Memorial Hospital. Sergeant Perkalis, who also responded to the call, also instructed police officers on the scene to secure Mr. Koedatich's clothing and car as possible evidence leading to the arrest of his alleged assailant.

Due to the similarities between the alleged attack on the defendant and the O'Brien and Hoffman murders, Detective John Kinnecom of the Morris County Sheriff's Division of Criminal Investigation, who was also investigating the O'Brien murder, was called to the police garage on January 17, 1983, to supervise the collection of evidence relating to the Koedatich stabbing. When Kinnecom inspected Mr. Koedatich's car, he realized that its tread pattern was similar to the impression made at the scene of the O'Brien abduction. A comparison of the Koedatich tire tread with a sketch and photograph of the O'Brien track confirmed Kinnecom's suspicion.

Kinnecom notified the Prosecutor's Office and the State Police. A search warrant was obtained for James Koedatich's 1970 Chevrolet. Police removed the tire, and took the car to the State Police Laboratory in Little Falls for extraction of

possible fiber and foam evidence. The seat cover was removed and the interior was vacuumed. Laboratory personnel also removed samples of the car's carpet. The seat cover and carpet were taken to the Federal Bureau of Investigation Laboratory in Washington, D.C. for analysis.

B. The Indictment and Pretrial Motions

On January 19, 1983, police arrested James Koedatich for the murder of Deirdre O'Brien. The State did not charge Koedatich with the murder of Amie Hoffman until December 15, 1983. During the interval between Koedatich's arrest for the O'Brien murder and his indictment for the Hoffman murder, the community questioned why an arrest in the Hoffman case was taking so long. The prosecutor's office said it was waiting for forensic evidence.

On December 15, 1983, Morris County Indictment No. 83-12-0725-I charged James Koedatich with purposeful or knowing murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(1)-(2); felony murder, contrary to N.J.S.A. 2C:11-3a(3); kidnapping, contrary to N.J.S.A. 2C:13-1b; aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a; unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d; and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d.

Judge Arnold denied two motions to suppress, heard in conjunction with identical motions in the O'Brien case in Warren County. A motion for a change of venue was heard and denied by Judge Muir, then Assignment Judge for Morris County, on June 27, 1984. That motion was renewed and again denied on various occasions throughout the trial before Judge Arnold Stein. In addition, pretrial motions attacking the constitutionality of the capital murder statute and requesting attorney-conducted voir dire of prospective jurors were heard and denied on July 2, 1984.

Voir dire of prospective jurors began on September 24, 1984, and concluded on October 3, 1984. With the qualification of fifteen jurors, the trial began on October 9, 1984. The State's

case consisted of four basic themes: (1) the facts surrounding the disappearance and the discovery of the body; (2) Amie Hoffman's activities in the days leading up to the abduction (in order to prove that she had not had sex prior to the abduction); (3) the likeness of the defendant and/or his car to descriptions given by various witnesses; and (4) the close correlation between the fiber and foam of the interior of defendant's car and fibers and foam found on the victim's clothes and boots.

The defense planned to advance five arguments: (1) that the defendant did not match the descriptions given by the witnesses, as he was not blonde and had a beard and a mustache; (2) that one State witness was simply mistaken, and had overreacted, perhaps subconsciously, to the publicity surrounding the case and the defendant; (3) that the defendant had an alibi, in that he had been home playing video games on the night in question; (4) that the fiber and foam correlations proved nothing; and (5) that convincing evidence existed that the murder had been committed by another, namely, Kevin Sheehan, an assistant football coach at the high school Amie Hoffman attended.

C. The State's Case

Without objection, the State introduced the videotaped deposition of Mrs. Helen Cato, who testified that on a Monday in mid-November 1982, after visiting a sick friend, she stopped at the Morris County Mall at about 3:00 p.m. to do some shopping. She remembered it was a Monday because she visited that friend on that day each week. The day was sunny. She had parked her car and was smoking a cigarette and listening to the radio when she heard a loud voice. She saw a man and a young woman walking from the Mall toward her vehicle. She recognized the young woman as Amie Hoffman, a cashier at the Surprise Store. The man, she said, was James Koedatich, who was in the room with Mrs. Cato when the deposition was taken. The man had a face "like a hawk," and was wearing blue and white sneakers, blue jeans, and a denim jacket. He looked

familiar. Mrs. Cato later placed him as a young man who had been to her house with her teenage daughter in the early 1960s. As the man and woman approached her car, Mrs. Cato heard him say, loudly, "Come here. Come here. Goddammit, I said come here. I'll kill you." The woman was unresponsive at first but became flustered and dropped the books she was carrying. She picked them up, stumbled, and jogged away from the man.

The State recalled Christene Gonzalez, who had earlier testified regarding Amie's activities on the evening of her disappearance. Supra at 233. She testified that she approached the prosecutor after initially testifying because she had never seen pictures of the defendant, and that while testifying she suddenly recognized the defendant as a man she had seen at the mall. She then testified that four times in September and October 1982 she had noticed a man with a very long face, high cheekbones, brownish hair, and one or two days growth of beard standing outside the Station Pub, a tavern in the Mall, and that the man was defendant Koedatich.

The State also called Dr. Isadore Mihalikis, a forensic pathologist from Pennsylvania, who studied stab wounds. Dr. Mihalikis testified, over defense counsel's objection, that the defendant's stab wound was consistent with self-infliction. Dr. Mihalikis based this opinion largely on the discovery of a cluster of three superficial cuts near the left shoulder of the jacket defendant had been wearing when he was allegedly attacked. The cuts on the jacket -- none of which penetrated the defendant's skin -- varied in depth from 3/16-inch to 1-1/8 inches, and had been caused by a single-edge knife. They were consistent with self-infliction, Dr. Mihalikis testified, because they were physically accessible, grouped closely together, occurred in a nonvital area, varied in depth (indicating some hesitation), and were shallow.

In connection with the fiber and forensic evidence, the State produced Special Agent Harold Deadman from the Microscopic

Analysis Unit of the Federal Bureau of Investigation Laboratory and George Neighbor, principal forensic chemist with the New Jersey State Police Crime Laboratory. Special Agent Deadman testified that he specialized in the examination and comparison of hair and fibers; that he had examined and compared material removed from defendant's car with specimens from the clothes and boots of Amie Hoffman. He testified that nylon fibers removed from the heel of Amie Hoffman's right boot were consistent with fibers found in the car's carpet and that polyester fibers found on Amie's skirt matched fibers from the car's seat cover. Also, according to Deadman, nylon fibers found on Amie's skirt matched coarse fibers found in the binding of the seat cover in defendant's car. Although on cross-examination he admitted the fibers were fairly common, he nevertheless insisted that the likelihood was extremely remote that the fibers on Amie's skirt and boot came from any source other than defendant's car.

George Neighbor, whose expertise includes hair and foam comparison, examined the seat cover from defendant's 1970 Chevrolet and brushings taken from Amie's right boot. Neighbor removed a piece of foam backing from the seat cover and compared it to two pieces of foam found on the edge of the boot sole. He testified that when viewed under a microscope, the foam from the seat cover of defendant's car matched foam found on Amie's right boot.

After the testimony of Mr. Neighbor, the State's final scheduled witness, the State introduced a surprise witness, Diana Bossard. Ms. Bossard testified over defense counsel's objections that in mid-October 1982, she had stopped at the Morris County Mall to do some clothes shopping for a planned November 1 vacation. Once in the Mall, she looked for clothes in Bradlees, the Fashion Bug, and the Surprise Store. After she entered the Surprise Store at 8:45 p.m., she walked to the back of the store and saw "a young Oriental girl with long hair being talked to in a loud voice by an unkempt-looking older man." The man, who was tall, with dirty-blonde hair, a thin face with

high cheekbones, and several days growth of beard, was speaking in a loud voice about dirt bikes, but the girl was not taking part in the conversation. After several minutes in the store, Bossard left without purchasing anything. Ms. Bossard identified the girl as Amie Hoffman and the man as defendant. Infra at 314-318.

Finally, the State attempted to introduce two items seized during the execution of a search warrant at defendant's residence. The first was a photo album found on defendant's nightstand, the last five pages of which consisted of pictures of "Oriental-looking" women. The second item was a letter addressed to Mr. Koedatich from Japan International; enclosed were three more pictures of Oriental women. The State's theory was that this evidence demonstrated defendant's interest in Oriental females and explained to the jury why defendant pursued Amie Hoffman over other women. Amie, who was of Oriental extraction, was adopted by the Hoffman's at age five. The Court excluded the evidence because it found there were no facts to support the State's contention that defendant wanted to have sex with Amie Hoffman or to abduct her because he was sexually attracted to Oriental females.

D. The Defense's Case

The defense opened by producing Michael Borzeka, a cousin of the defendant, and John Borzeka, the defendant's uncle, both of whom testified that they had seen the defendant on Thanksgiving Day in 1982 and that he had had a beard. According to his uncle, defendant's beard was "heavy, full." Both witnesses admitted, however, that they remembered this only because of photographs allegedly taken by Michael, and Michael testified that defendant's beard was "close to his face." The defense next produced Mrs. Clark, who testified, as recounted earlier, that she had heard a small sports car go slowly by her house on Combs Hollow Road from the direction of the retention tanks at 12:45 a.m. on the night in question. Detective Longo followed with his version of what Mrs. Clark had told him. The defense

then sought to introduce the testimony of Lt. Raymond DiBiasse of the Morristown Police Department, who had received a phone call on December 14, 1982, from a self-professed psychiatrist, who said that he had a patient, a construction worker, who might have committed the murder, and that his patient had been attracted to an Oriental woman who had continually rebuked him. This evidence, the defense argued, raised the possibility that Helen Cato and Diana Bossard had seen another man -- not the defendant -- with Amie Hoffman. The court ruled, however, that the statement was "classic" hearsay, and that its unreliability was patent.

The defense then called David Paul Baldwin, the defendant's step-brother, who was in high school and was living at home in November 1982. Baldwin testified that defendant's car had not been running well in November. He also testified that his step-brother had had a beard that fall and that on the night in question defendant was upstairs at home playing Atari most of the evening, at least until nine o'clock. Finally, he testified that the sneakers seized in the search of the house and associated with defendant by Helen Cato were bought for defendant as a Christmas gift in December 1982. Based on the prosecutor's cross-examination of Mr. Baldwin, the defense moved for a mistrial, which was denied. Infra at 321-324.

The defense then sought to call Kevin Sheehan, the former Assistant Football Coach at Amie's high school, in order to suggest that Mr. Sheehan may have been Amie's killer. The court held evidence concerning Mr. Sheehan to be inadmissible. Infra at 298-313.

The defense called Kathleen Koedatich, defendant's sister-in-law, who testified that defendant was bearded in September 1982 and on November 21, 1982, although before the grand jury she had testified that defendant was just starting to grow a beard in November. The defense then called Julia Baldwin, the defendant's mother, who testified that her son had a beard from September to November 1982. She also testified that

James Koedatich was upstairs at home playing Atari on the night in question from 8:00 p.m. to 11:00 p.m., and that she had been in the living room until eleven o'clock and would have seen the defendant if he had left. Like defendant's step-brother she stated that the sneakers the police seized were a Christmas present for defendant.

To rebut the State's fiber and foam evidence, the defense called four witnesses. Thomas Gowrie, director of sales for Falk Fibers & Fabric, a Hillsboro, North Carolina, nylon manufacturer, testified that his company sold to Western Textiles approximately 400,000 yards per year of nylon monofilament similar to that found in the defendant's seat cover. Tom Hannah, of Western Textiles, recognized the tape on the defendant's seat cover as similar to a tape that his company sells to Crest Manufacturing Co., a manufacturer of seat covers. He testified that in 1982 his company sold 2 1/2 million yards of the tape to Crest. The tape was also used in the manufacture of caps, sweatbands, and life jackets. Paul McIntyre, director of finance and administration for General Foam Corp., testified that in 1982 his company sold 340,494 linear yards of charcoal gray foam to U.S. Laminating.

The defense closed its case with its principal expert witness, Dr. John Reffner, principal research microscopist for American Cyanamid. Dr. Reffner testified that the polyester from the victim's skirt was similar, but not identical, to the polyester of the defendant's seat cover; the fabric samples could not be said to be identical, Dr. Reffner stated, because there was a "large degree of variability within the data set on the control," and because the fabric was so common. The same testimony held for the nylon found on the skirt and seat cover, for the rayon from the carpeting and the boot, and for the foam. Dr. Reffner concluded that "because of the general availability of the fibers and the variability within the data set itself . . . there is no single point of match or comparison that says that these two materials were at one time joined together. In other words, there's no way to say that the fibers and the foam were part of

the automobile or the seat cover." This doubt would increase, Dr. Reffner testified, if he knew that the victim worked in a clothing store. On cross-examination, Dr. Reffner acknowledged that he did not know that the rayon fibers had not been used in car carpeting since 1973. Dr. Reffner also acknowledged that he had run comparison tests with foams from hanger covers, baseball caps, and wet suits, none of which matched the foam from the seat cover. On redirect, Dr. Reffner reaffirmed his conclusion that given the common currency of the fibers, "[t]here's [sic] too many variables to allow a direct connection of these fibers from the skirt to that car." There was, in his opinion, "reasonable uncertainty" that the fibers on the victim's clothes came from the defendant's car.

The defense having rested, the State thereupon announced its intention to call, as rebuttal witnesses, two police officers who claimed to have met the defendant at his brother's service station, both of whom would testify that the defendant was clean-shaven during the fall of 1982. Over defense objections, the court allowed the rebuttal testimony. Infra at 317-320.

In conclusion, the defense called three witnesses in surrebuttal: Carol Charron and Robert Monahan, who had worked with the defendant at his brother's station that fall, and Nicholas Borzeka, defendant's uncle, who had work done at that station. Each testified that defendant had been growing a beard in September 1982, had continued growing it through the fall, and had had dark hair.

The defense summation argued that the case was based on "supposition, innuendo, nothing else." Based on the prosecutor's summation, the defense moved for a mistrial which the court denied. Infra at 324-326.

After being charged on the law, the jury retired for deliberations at 11:20 a.m. on October 25, 1984. While deliberating, the jury requested the testimony of Barbara Horwath, Diana Bossard, Christene Gonzalez, Helen Cato, and Timothy O'Grady, the identification witnesses. The jury also requested the testimony

of Mrs. Hoffman regarding Amie's whereabouts on Monday, November 22, and Tuesday, November 23, and Karyn Speak's testimony about Amie's whereabouts on Tuesday, November 23. At 3:05 p.m. on October 26, 1984, the jury returned a verdict of guilty on all counts, namely, of knowing and purposeful murder, of killing in the course of committing kidnapping or aggravated sexual assault, of kidnapping, of aggravated sexual assault, and of possession of a dangerous weapon for an unlawful purpose.

E. Penalty Phase Trial

At the sentencing trial, the prosecutor introduced as aggravating factors the fact that the defendant had a prior conviction of murder, Sec. c(4)(a);*fn2 that the murder was outrageously and wantonly vile, Sec. c(4)(c); that the murder was committed for the purpose of escaping detection, Sec. c(4)(f), and that the murder was committed while the defendant was engaged in committing, attempting to commit, or flight from committing kidnapping and/or aggravated sexual assault, Sec. c(4)(g).

Defense counsel commenced the penalty phase by attempting to waive the jury. The prosecutor would not consent, however, so in accordance with Sec. c(1), the application for waiver of the jury was denied. Defense counsel then presented a signed statement by defendant in which defendant made clear that he wished that no mitigating factors be presented on his behalf during the penalty phase. He also expressly requested to be executed within sixty days of being sentenced to death, if in fact he were so sentenced. By making such a request, defendant was attempting to waive his right to appeal his conviction. Defense counsel followed his client's instructions. At the sentencing trial, therefore, defense counsel made no opening statement,

presented no evidence of mitigating factors, and made no closing statement to the jury. The trial court informed the jury that defendant was entitled to remain silent throughout the proceeding and that the State still was obliged to prove its case.

The trial court instructed the jury that defendant was to be sentenced to death if the jurors were "satisfied beyond a reasonable doubt that the aggravating factor or factors alleged in this case exist and that they are not outweighed by any mitigating factor." The trial court then proceeded to explain to the jury the aggravating factors that it was to consider in its deliberations, as well as the one general mitigating factor provided for by Sec. c(5)(h). The trial court also instructed the jury that it was not obliged to find beyond a reasonable doubt that a mitigating factor existed. The court did, however, instruct the jury that its decisions regarding the existence or nonexistence of aggravating or mitigating factors had to be unanimous. Elsewhere in its instructions, the trial court stated that "the defendant may be sentenced to death only if you are convinced beyond a reasonable doubt that the aggravating factor or factors either outweigh the mitigating factor or that the[y] are equal to the mitigating factors." The trial court further instructed the jury that any mitigating factors had to outweigh aggravating factors in order to permit a sentence less than death.

The jury interrupted its sentencing phase deliberations to seek clarification on whether unanimity was required in order to find a mitigating factor. The trial court instructed the jury that a mitigating factor did not exist unless it was based on the jury's unanimous finding.

The jury found unanimously that two of the proffered aggravating factors existed: the prior murder conviction factor, and the murder in the course of kidnapping/sexual assault factor. The jury was unable to agree unanimously on the more subjective factors, i.e., the vileness factor (eleven found that it did exist; one that it did not) and the murder for purpose of

escaping detection factor, and thus did not find them to exist. Because the jury could not unanimously agree on the existence of a mitigating factor, none was found to exist. The court then sentenced the defendant to death.

On November 16, 1984, the Office of the Public Defender filed a Notice of Appeal on defendant's behalf over his objection. The defendant moved before this Court to have the stay of execution, which had been entered upon the filing of the Notice of Appeal, vacated. This Court denied the defendant's motion on December 5, 1984. State v. Koedatich, 98 N.J. 553 (1984).

On January 11, 1985, the trial court imposed a thirty-year prison term with a fifteen-year period of parole ineligibility on the kidnapping count and a concurrent twenty-year term with ten years of parole ineligibility for the aggravated sexual assault, the sentence to run consecutively to the sentence for murder should the death sentence be overturned. The court merged all other counts into the murder, kidnapping, and aggravated sexual assault counts. The court also levied a fine of $1,050 payable to the Violent Crimes Compensation Board. The defendant filed a motion for a limited remand for a hearing on possible taint of the verdict. This Court denied that motion on October 7, 1985.

II.

Constitutionality of Death Penalty Statute

The defendant attacks this state's capital punishment statute, N.J.S.A. 2C:11-3, on both federal and state grounds, claiming it to be violative of the prohibition against cruel and unusual punishment. U.S. Const. amends. VIII, XIV; N.J. Const. of 1947 art. I, para. 12. We addressed this issue in State v. Ramseur, 106 N.J. 123, 166-82 (1987), and now reaffirm our holding in Ramseur that our state's capital punishment statute is not violative of either the federal or the state constitution's ban on cruel and unusual punishment.

Next, we consider defendant's claim that the death penalty statute is unconstitutional because it fails to control prosecutorial discretion in seeking the death sentence. Defendant maintains that the Legislature could not possibly draft a death penalty statute that would eliminate potential arbitrariness at the prosecutorial level, and consequently the death penalty is inherently unconstitutional under the federal and New Jersey constitutions. Thus, defendant asserts that the death penalty act is unconstitutional on its fact.*fn3 Defendant argues that the statute gives county prosecutors unfettered discretion in seeking the death sentence in cases in which the statute allows the death sentence. Because prosecutors have unfettered discretion in determining whether to initiate capital prosecutions in those cases in which a death verdict is statutorily possible, defendant maintains that the statutory scheme fails rationally to differentiate among those for whom the State seeks the death penalty and those for whom the State seeks lesser penalties. Accordingly, plaintiff argues, the statute does not ensure a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not," Furman v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 2764, 33 L. Ed. 2d 346, 392 (1972) (White, J., concurring), thus allowing the death penalty to be "wantonly and . . . freakishly imposed." Id. at 310, 92 S. Ct. at 2762, 33 L. Ed. 2d at 390 (Stewart, J., concurring).

In State v. Ramseur, this Court addressed a facial challenge to the constitutionality of the death penalty act with respect to jury discretion. There, we recognized that in order to pass constitutional muster under Furman, "a capital punishment statute must achieve two objectives: limit imposition of the penalty to what is assumed to be the small group for which [it

is] appropriate, see id. at 310, 92 S. Ct. at 2762, 33 L. Ed. 2d at 390 (White, J., concurring), and ensure that the limited class selected for the penalty is chosen with rationality and consistency, see id. at 310, 92 S. Ct. at 2762, 33 L. Ed. 2d at 390 (Stewart, J., concurring)." State v. Ramseur, supra, 106 N.J. at 183. Both objectives, we noted, "are aimed primarily at eliminating the arbitrary nature of capital proceedings in the past and their high risk of discrimination." Ibid.

In Ramseur, this Court also looked beyond the federal constitutional requirements as formulated in Furman and later in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), to the New Jersey Constitution, which mandates consistency and reliability in the administration of capital punishment. State v. Ramseur, supra, 106 N.J. at 190. We observed that our state Constitution "provides an additional and, where appropriate, more expansive source of protections against the arbitrary and nonindividualized imposition of the death penalty." Ibid. At the same time, however, while we observed that our Constitution provides additional protection against the arbitrary imposition of the death penalty, we also cautioned that capital defendants are not "entitled to perfection, to totally consistent, accurate and reliable procedures." Id. at 192. We refused to invalidate the death penalty statute by construing our State Constitution to mandate requirements "that, though unspecified, could never be met." Ibid.

Thus, in Ramseur and its companion case of State v. Biegenwald, 106 N.J. 13 (1987), we did not directly address prosecutorial discretion. In Ramseur, defendant argued that the statute failed to channel jury discretion and therefore violated the constitutional requirements of Furman and Gregg. Here, by contrast, defendant argues that the statute fails to check prosecutorial discretion and therefore cannot guarantee that the State will not arbitrarily or capriciously impose the death penalty. While limiting jury sentencing discretion helps to assure that those sentenced to death are a rational subset of those actually charged of capital crimes, it does not at all assure that

those convicted are a rational subset of those who could be charged with a death-eligible offense. See Note, "Discretion and the Constitutionality of the New Death Penalty Statutes," 87 Harv.L.Rev. 1690, 1713-14 (1974). As one commentator noted, "confining sentencing discretion cannot guarantee that those sentenced to death are a rationally selected subset of all capital offenders." Id. at 1714.

Nevertheless, the mere existence of several discretionary stages in the progression of a capital case does not render a death penalty scheme unconstitutional. Gregg v. Georgia, supra, 428 U.S. at 199, 96 S. Ct. at 2937, 49 L. Ed. 2d at 889. At each stage of a capital case, "an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty." Ibid. To ensure a complete absence of discretion at each stage of decisionmaking would be an impossible task for the Legislature or for this Court. Indeed, to restrict discretion completely at the prosecutorial stage would be unconstitutional. Id. at 199 n. 50, 96 S. Ct. at 2937 n. 50, 49 L. Ed. 2d at 889 n. 50. As the Supreme Court wrote in Gregg:

In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there had been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice.

Moreover, it would be unconstitutional. [Ibid.]

Gregg, therefore, holds that the federal Constitution does not require limits on prosecutorial discretion beyond the aggravating factors outlined in the statute. That the federal Constitution does not mandate guidelines for prosecutors in administering the death penalty statute is not dispositive, however. As this Court stated in Ramseur, we apply independent state constitutional analysis in our appellate review of death verdicts. State v. Ramseur, supra, 106 N.J. at 182. Accordingly, we

examine defendant's claim of arbitrariness at the prosecutorial stage in light of the independent analysis of our own Constitution.

Defendant, unlike the defendant in State v. Smith, 202 N.J. Super. 578 (Law Div.1985), does not claim that the prosecutor acted arbitrarily in selecting his particular case for capital prosecution. In Smith, defendant brought to the attention of the court, in support of his claim of selective and arbitrary prosecution, fifteen other cases similar to his own in which the prosecutor did not seek a death sentence. State v. Smith, supra, 202 N.J. Super. at 591. In support of defendant's claim here that the administration of the death penalty is inherently arbitrary, he relies on statistical data. Specifically, defendant submitted to this Court a portion of the preliminary report of the Public Defender's study on the New Jersey death penalty statute entitled "The Reimposition of Capital Punishment in New Jersey: Homicide Cases From 1982-1986" by Leigh B. Bienen, Assistant Deputy Public Defender, Neil Alan Weiner, Senior Research Associate at the Sellin Center for Studies in Criminology and Criminal Law at the University of Pennsylvania, and Deborah W. Denno, Professor of Sociology, University of Pennsylvania. Defendant contends that the preliminary results of this study reveal that cases are designated capital cases in a manner that is inconsistent from county to county and in a manner that is arbitrary when cases are compared by county and by identified groups of defendants and victims.

This Court anticipated in Ramseur that it would be asked to consider "concerns about possible misuse of prosecutorial discretion . . . including in the review all cases in which a prosecutor had the discretion to seek the death penalty." State v. Ramseur, supra, 106 N.J. at 329; see also State v. McCrary, 97 N.J. 132, 147 (1984) (permitting limited judicial review of prosecutorial discretion to charge capital murder authorized under the Act). On the basis of the preliminary data submitted by the Public Defender, however, we find no reason to conclude

at this time that prosecutorial discretion in the administration of the death penalty is being abused or that it has resulted in an unconstitutionally arbitrary scheme of selection of cases for capital prosecution.

The Public Defender's Study attempts a statistical comparison of "all cases of homicide, except vehicular manslaughter, where the homicide occurred after August 6, 1982, the effective date of the imposition of capital punishment in New Jersey." The purpose of the Study, according to its authors, is to examine the exercise of prosecutorial discretion and differences among criminal practice and procedure in all twenty-one counties in the state. The criteria for inclusion in the data base are formal charge for a homicide offense by the prosecutor's office and a final disposition of that charge at the trial court level. The Preliminary Report surveys the case characteristics of 568 cases. The authors of the study identified and assembled case characteristics based on defense counsels' responses given in interviews with researchers. The interviews incorporated 700 study variables from basic data on the defendant, the victim, the circumstances of the offense, case processing decisions and strategies, the trial, and the applicable statutory aggravating and mitigating factors.

Of the 568 cases included in the Interim Report, prosecutors served a notice of aggravating factors in cases involving 103 defendants (18.1 percent of the 568), for 71 of whom (68.9 percent of the 103) the case went to trial as a capital case before a judge or jury. Of the 71 cases that proceeded to a capital trial, 53 (74.6 percent) resulted in a capital conviction for a death eligible*fn4 murder. Of the fifty-three cases that proceeded

to a penalty phase trial, eighteen resulted in the imposition of the death penalty. Overall, then, of the 568 homicide cases in the Preliminary Report, prosecutors served notice of aggravating factors in 18.1 percent, 12.5 percent resulted in a capital guilt phase trial, 9.3 percent went to a penalty phase, and 3.2 percent resulted in the death sentence. The Public Defender also claims that of the 568 cases surveyed in the Preliminary Report, 325 cases -- or 57.2 percent -- had at least one statutory aggravating factor present and were thus death-possible. However, out of that number, the prosecutor served notice of a factor in only 103 cases. Thus, according to the Preliminary Report, 39.1 percent of the cases had an aggravating factor present but the prosecutor did not serve notice of any aggravating factors.

The Preliminary Report advances two statistical correlations indicating that the decision to pursue the death penalty in a death-possible case is dependent on (1) the policy of the prosecutor of the county in which the prosecution is to occur, which policy differs from county to county, and (2) the race of victims and defendants.

First, the Public Defender maintains that the Preliminary Report reveals wide discrepancies in the administration of the death penalty among the counties. For example, a case designated by the Preliminary Report as death-possible was likely to be prosecuted as death-eligible in Monmouth County 70 percent of the time, whereas in Hudson County death-possible cases were prosecuted as death-eligible only 19 percent of the time; in Essex and Camden Counties the rates were 23 percent and 27 percent, respectively. The rate for middle-sized counties was 41 percent, and for small-sized counties 34 percent. Conversely, the chances that a plea bargain would be offered in a given case were significantly higher in Hudson and Camden Counties than in Monmouth County. Thus, these statistics suggest that the selection of homicide cases for capital prosecution depends in part on the county in which the prosecution occurred.

The Preliminary Report offers no explanation for the discrepancies in prosecutorial selection of cases for capital prosecution. The critical question in assessing prosecutorial discretion is what standards are applied to move a case from death-possible to death-eligible status. To assist in answering this question, this Court cannot rely solely on county-by-county statistical discrepancies or on findings that are developed exclusively by defense counsels' evaluation of the case included in the data base.

That there are differences among the counties in the likelihood that a prosecutor will pursue -- or the coincidence that the prosecutor has more often pursued -- a capital prosecution does not, standing alone, demonstrate that the death penalty is being arbitrarily imposed. Surely, there are a myriad of reasons why a prosecutor handles different cases differently, such as the willingness of a defendant to plead guilty, the strength of the State's case, a defendant's cooperation in the State's case against a co-defendant, the relative weight of the statutory aggravating and mitigating factors, the availability and relative credibility and persuasiveness of witnesses, and the resources of the county prosecutor's office, to list only a few. As thus far presented, the Public Defender's comparisons do not persuade us that the county prosecutors are acting arbitrarily or capriciously.

The Public Defender also urges that the race of the victim*fn5 affects the decision to prosecute. Cases involving white victims,

which comprise 40.9 percent of cases designated death-possible by the Preliminary Report, account for 61.1 percent of all death sentences and 54.9 percent of all cases that advance to capital trial. Where the victim was white the odds that a case would advance from death-possible to death-eligible were 43 percent, whereas the odds where the victim was Hispanic were 15 percent, and where the victim was black were 26 percent. In combining race of victim with race of defendant, the preliminary data reveal that death-possible cases where both the victim and the defendant were Hispanic had a 9 percent chance of being designated death-eligible, while death-possible cases in which both the victim and the defendant were white had a 44 percent chance of being designated death-eligible, and where both the victim and defendant were black a 27 percent chance of being so designated. In cases where the defendant was black and the victim white (44 total), there was a 45 percent chance that the case would be designated death-eligible.

The authors of the Preliminary Report, however, admit that characteristics other than race may influence the progression of cases surveyed in their Report. Furthermore, they acknowledge that these data are tentative and merely suggest that impermissible or arbitrary factors may have infected the administration of the death penalty statute in this state. Moreover, although the Public Defender asks the Court to take judicial notice of this Preliminary Report, it was never part of the record of this case and was never subjected to a hearing or other proceeding at which the State had a formal opportunity to challenge it. Thus, while the submitted preliminary data may be a beginning for understanding how prosecutors are administering the capital punishment act, they are not sufficiently reliable for this Court to draw conclusions. The preliminary data before this Court in this case have been updated and expanded and submitted to this Court in other capital causes. Accordingly, it is more appropriate for the Court to analyze the Study's findings in their more comprehensive form. At this

point, we state merely that this Court has considered and will continue to consider this Study.

Despite our reluctance to draw conclusions from the preliminary empirical evidence, we recognize the need for greater guidance for prosecutors as they attempt to perform their constitutional duty of enforcing this statute. Other death penalty jurisdictions have held the validity of the prosecutor's exercise of discretion depends solely on whether a factual basis exists for the charging of aggravating factors. See, e.g., People v. Free, 112 Ill. 2d 154, 97 Ill.Dec. 396, 399, 492 N.E. 2d 1269, 1272 (1986); Resnover v. State, 460 N.E. 2d 922, 929 (Ind), cert. den., 469 U.S. 873, 105 S. Ct. 231, 83 L. Ed. 2d 160 (1984); State v. Judge, 100 Wash. 2d 706, 675 P. 2d 219, 223 (1984). Indeed, in State v. McCrary, supra, 97 N.J. at 139, this Court acknowledged that while prosecutorial decision-making is normally beyond its purview, fundamental fairness required that this Court review the basis for the State's notice of aggravating factors in a capital case to ensure that prosecutors have cause to designate defendants as death-eligible. To be sure, we stated that our goal was "to effect only a minimal intrusion into this area of prosecutorial discretion." Id. at 142. Nevertheless, we believe there is a need to promote uniformity in the administration of the death penalty, which will be an additional safeguard against arbitrariness and an assistance to this Court in its developing proportionality review.

Accordingly, we strongly recommend that the Attorney General, and the various County Prosecutors, in consultation with the Public Defender, adopt guidelines for use throughout the state by prosecutors in determining the selection of capital cases. With the assistance of these various participants in the criminal justice system, the state can begin to develop guidelines that not only will promote uniform prosecutorial standards but also may assist the Court in its eventual proportionality review.

Finally, we reject any specific claim of arbitrariness in defendant's case. Defendant does not demonstrate any arbitrariness in the selection of his case for capital prosecution, and we will not assume that any arbitrariness existed. There is no basis for vacating defendant's sentence on this ground.

III.

Pretrial and Jury Selection Issues

A. Motion to Suppress Fiber and Foam Evidence

On January 16, 1982, approximately two months after Amie Hoffman's murder, defendant called the police to his home to report that he had been the victim of a stabbing. This bizarre event caused the police to seize and later examine defendant's car, which yielded critical evidence in both the Hoffman and O'Brien murders.

Arriving at defendant's home, the police found the defendant with a stab wound in his lower back. Defendant advised the police that while he was driving his car, a vehicle displaying a flashing blue light came up behind him. Believing the driver to be a policeman, Koedatich claimed he stopped, exited his car, and walked to the rear. The driver chastised defendant for driving too slowly. When defendant turned to reenter his car, he felt a blow to his back. In one motion he slid behind the steering wheel of his car. Once inside the car he felt blood, became frightened, drove home, and called the police. The police administered first aid and called an ambulance, which transported Koedatich to the hospital. Sergeant Perkalis drove defendant's mother to the hospital. In the meantime, Sergeant Perkalis issued a crime alert report about the stabbing to adjacent police departments.

Further interviewing of the defendant at the hospital established that the alleged attack had taken place not in Morristown but in Morris Township, and that jurisdiction over the attack belonged to Morris Township. Accordingly, the Morristown

police transferred defendant's car to the Morris Township police garage in order to obtain forensic evidence. The freezing conditions in winter made the lifting of fingerprints almost impossible, so that cars were routinely placed in the garage in order to obtain fingerprints.

Because the details of the attack appeared to be similar to the O'Brien and Hoffman attacks, Detective Kinnecom, a member of the Morris County Sheriff's Criminal Investigation Division, who was responsible for the preservation and identification of physical evidence gathered at the O'Brien murder, was called to examine defendant's car. A critical piece of evidence at the scene of the O'Brien slaying was a tire track found near Ms. O'Brien's car. The police had sketched, photographed, and made a plaster cast of the tire track. From the O'Brien murder on December 5, 1982, to the date of the alleged Koedatich stabbing, a five or six week period, Detective Kinnecom had diligently examined thousands of tires to find a tire with a tread pattern similar to the impression made at the scene of the O'Brien abduction. As soon as he looked at defendant's car, he noticed that a tire on the car had a tread pattern similar to the tread pattern found near Ms. O'Brien's car. He did no further investigation, but immediately called the Prosecutor's Office and a search warrant was secured. The interior of defendant's car was searched pursuant to the search warrant.

The defense agrees that the search warrant was properly issued, but alleges that the original seizure of the car was improper and hence the fruits of the seizure, in this case the fiber and foam evidence, were improperly admitted. The defense moved to suppress the foam and fiber evidence. At the suppression hearing the defense's theory was that the defendant was really a suspect, and that the police had "secured" the car through subterfuge.

Sergeant Perkalis, the officer in charge, testified at the suppression hearing that he requested that defendant's clothes and car be taken by the police to be examined for possible

evidence of the assailant's identity. He recounted the circumstances of the seizure:

Q: Once the details of the incident were related to you, did you indicate to Mr. Koedatich your desire to do anything?

A: I indicated to Mr. Koedatich we were going to secure his vehicle as possible evidence.

Q: And what was the response to that?

A: His response was, "yes, okay," he agreed.

Q: Now, the security of the evidence, was that standard police procedure?

A: Yes, sir. . . .

Q: You were investigating this as what -- this whole incident?

A: As an aggravated assault with a weapon.

Q: Upon whom?

A: Upon Mr. Koedatich.

Q: Was he a suspect at the point?

A: No, he was not.

Specifically, with respect to the seizure of the car, he testified:

Q: Did you direct Patrolmen Scott or Dormer to secure any other evidence?

A: Yes, I also indicated or I advised Mr. Koedatich at that point in time that we were going to also secure his vehicle as possible evidence also and he was very cooperative. There was [sic] no problems with that at all.

Q: Before we get to that, why did you seek to secure the automobile?

A: For possible contact between the suspect and the vehicle; that there might be some forensic evidence left on the vehicle.

Q: Such as?

A: Such as fingerprints.

Q: Why did you think that the vehicle might provide some additional forensic or trace evidence?

A: Because of the close contact between the suspect and where the assault took place.

The court found that the defendant had not been a suspect at the time of the stabbing, that the police had treated defendant like a victim of an assault, and that Detective Kinnecom reported to the garage because another officer suggested that defendant's assailant could be connected to the O'Brien and Hoffman murders. Moreover, the court noted that the defendant had initiated contact with the police, and that in the course of that investigation the police processed the car under standard procedure. Hence, the court upheld the seizure of the

defendant's car as a valid consent seizure, finding "beyond a reasonable doubt that Sergeant Perkalis never ordered the defendant to turn over his car or anything of that nature."

On appeal, the Public Defender accepts the fact that the defendant had not been a suspect prior to his alleged stabbing, but argues instead that since defendant was not advised that he did not have to give his consent to the seizure of his car, his consent was not voluntarily given within the meaning of State v. Johnson, 68 N.J. 349 (1975). We disagree. In New Jersey, if the State seeks to rely in a non-custodial situation on consent as the basis for a search, it must "demonstrat[e] knowledge on the part of the person involved that he had a choice in the matter." Id. at 354 (footnote omitted). Subject to that qualification, a search conducted after a voluntary consent is clearly valid. See State v. Sugar, 108 N.J. 151, 166 (1987) (O'Hern & Stein, JJ., concurring); State v. King, 44 N.J. 346 (1965).

A consent sufficient to avoid the necessity of a warrant may be express or implied from the circumstances. "An implied consent to search is as efficacious and effective as an express consent to search." People v. Engel, 105 Cal.App. 3d 489, 504, 164 Cal.Rptr. 454, 463 (1980). Consent may be "implied," because it is found to exist merely because of the person's conduct in engaging in a certain activity. W. LaFave, Search & Seizure: A Treatise on the Fourth Amendment para. 8.2(1), at 219 (2d ed. 1987). Moreover, courts in other states have found implied voluntary consent where, as in the instant case, the defendant has initiated police contact and has adopted a "cooperative posture in the mistaken belief that he could thereby divert or prevent police suspicion of him." Id. para. 8.2(g), at 204; see also Steigler v. State, 277 A.2d 662, 667 (Del.1971) (actions of fully cooperative defendant amounted to implied consent to search and seizure: "One can hardly expect the police to get a search warrant for a house or building when the owner is obviously cooperative and gives every appearance of being the victim, rather than the perpetrator, of a crime");

State v. Fredette, 411 A.2d 65, 70 (Me.1979) (defendant initiated police presence through urgent calls to police; invited them to enter home; and continually cooperated with police as they searched home); Lewis v. State, 285 Md. 705, 717-21, 404 A.2d 1073, 1080-1081 (Md.1979) (defendant summoned police to house; was anxious to cooperate with investigation and willingly left house key with neighbor to give police access to premises); Commonwealth v. Harris, 387 Mass. 758, 443 N.E. 2d 1287 (1982) (defendant genuinely consented in hope that cooperative attitude would deflect police suspicion); Kelly v. State, 75 Wis. 2d 303, 313, 249 N.W. 2d 800, 805 (Wis.1977) (defendant called police and, under circumstances that implied that the victim had shot himself or had been shot by someone other than defendant, "there was an implied consent not only to aid the victim but to determine what had caused the death or injury and who was responsible"). Federal courts have reached similar results. See United States v. Price, 599 F.2d 494 (2d Cir.1979) (valid search where defendant told police he did not care if they searched bag because it was not his and he had picked it up by mistake); Thompson v. McManus, 512 F.2d 769 (8th Cir.) (cooperative defendant assisted police by discussing robbery as motive for brutal assault on wife: sufficient to imply consent to second search of house), cert. den., 421 U.S. 1014, 95 S. Ct. 2421, 44 L. Ed. 2d 683 (1975).

In their concurring opinion in State v. Sugar, supra, 108 N.J. at 174, Justices O'Hern and Stein found, based on a close examination of all the unique circumstances of that case, that Dr. Sugar had impliedly consented to the second search of his property. In reaching this conclusion, they relied "particularly on the defendant's unabated and unqualified cooperation with police efforts to find his wife." Ibid. In Sugar, the search was not of defendant's home but rather of the curtilage surrounding his home. In this case the item searched was defendant's car, in which a person has a much lower expectation of privacy. See California v. Carney, 471 U.S. 386, 391, 105 S. Ct. 2066, 85 L. Ed. 2d 406, 413 (1985) ("'the expectation of

privacy with respect to one's automobile is significantly less than that relating to one's home or office'").

In New Jersey, the Appellate Division has distinguished certain cases from Johnson not only because there was a general absence of "coercion," but also because there was some form of active initiation by the party who turned over the evidence. While in Johnson the police had requested entry into the apartment, in State v. McGivern, 167 N.J. Super. 86, 87 (App.Div.1979), the police query was limited to whether there was anything in the car's trunk; the driver opened his trunk without having been asked. Similarly, in State v. Humanik, 199 N.J. Super. 283, 304-05 (App.Div.1985), the sister's turning over of the letter to the police "was not directly instigated by the officers"; and in State v. Anglada, 144 N.J. Super. 358, 362-63 (App.Div.1976), the defendant "knew that [he] did not have to consent" when he allowed undercover officers into his home.

Consent is therefore a factual question to be determined from the relevant circumstances. We are persuaded by the totality of the unique circumstances that the defendant did in fact consent to the seizure of his vehicle, and therefore find the seizure valid. Defendant requested police intervention. There was no subterfuge by the police. The police acted in a reasonably objective and routine manner in examining defendant's car. He gave the appearance of cooperating fully with the police, and he led them to believe they were all working together to catch his assailant. The defendant thus orchestrated the events that led to the discovery of crucial evidence in both this case and the O'Brien case. It is not the fault of the police nor is the Constitution "at all offended when a guilty man stubs his toe." State v. McKnight, 52 N.J. 35, 52 (1968). Indeed, there can hardly be a more appropriate case in which to find that the police acted reasonably in concluding that defendant had given his consent to the seizure of his car. To rule otherwise defies common sense. Accordingly, we find the foam and fiber evidence to be admissible.

B. Publicity and Venue

Defendant asserts that pervasive pretrial publicity deprived him of his federal and state constitutional rights to a fair trial by an impartial jury. Defendant raises four publicity-related issues on appeal:

(1) Did the trial court err in denying defendant's motion for change of venue;

(2) Did the trial court err in not excusing for cause all jurors who had read or heard about the case;

(3) Was the verdict tainted because of certain jurors' knowledge; and

(4) Did the trial court err in denying defendant's motion for attorney-conducted voir dire.

All the issues are interrelated and depend essentially on the same facts and the same principles of law.

It is undisputed that the murders of Amie Hoffman and Deirdre O'Brien and the subsequent arrest of James Koedatich were attended by intense publicity. In State v. Williams, 93 N.J. 39 (1983), decided before the trial in this case, but which involved defendant as an appellant in the O'Brien murder case, this Court noted the extensive publicity surrounding these cases:

The publicity included in the record in the Koedatich case was generated primarily in early December following Ms. O'Brien's stabbing death and again in January following Koedatich's arrest. During these periods, almost-daily reports were published by several newspapers including the Morristown Daily Record, the Easton (Pennsylvania) Express and the Star-Ledger (Morris, Sussex, Warren edition). Other newspapers, including the Dover Daily Advance, the Bridgewater Courier-News, the Passaic Herald News and the New York Daily News, provided less frequent coverage. The December articles chronicled in detail the circumstances surrounding the killing, the statewide manhunt and extensive investigation that ensued and the resulting fear and anxiety felt by many area residents. These articles postulated a possible relation between the O'Brien murder and several other unsolved murders in the area. Koedatich's arrest in January was announced by banners, front page headlines. Published articles extensively reported Koedatich's background and personal history including his prior criminal involvement. In particular, the papers noted that Koedatich had just completed an 11-year prison term in

Florida where he was serving a 20-year sentence for murder and armed robbery. Moreover, reports indicated that while in jail Koedatich had choked to death another inmate, although the incident was considered justifiable homicide. Coverage of subsequent legal developments in Koedatich's case reiterated the facts surrounding Ms. O'Brien's stabbing death and Koedatich's criminal history. [ Id. at 50-51 n. 2.]

This publicity continued. The Public Defender's Office contacted the Star-Ledger, the Daily Advance, and the Daily Record in May 1984, and found that the Star-Ledger had by that time published more than ninety articles concerning the defendant or the "Morris County Murders," more than half of the articles published after defendant's arrest (forty-four before the arrest, forty-eight after); the Daily Advance had published about forty articles about the cases after Koedatich's arrest. The Daily Record offered no estimate. Circulation of each paper was as follows: the Star-Ledger, 45,500 daily, 62,400 Sunday in Morris County;*fn6 3,800 daily, 5,800 Sunday in Warren County, 8,100 daily, 12,200 Sunday in Sussex County; the Daily Advance, 14,359 daily, 13,020 Sunday; the Daily Record, 65,000 daily, 72,000 Sunday. The Public Defender also contacted various local radio stations and WABC-TV in New York, with inconclusive results.

5

1. Motion for Change of Venue

Based on the continuing publicity and on a survey purporting to show media saturation in Morris County, defense counsel brought a motion for a change of venue prior to trial. On June 27, 1984, Judge Muir, then Assignment Judge for Morris County, rejected the results of the survey because of methodological flaws; defendant does not contest this finding. The Assignment Judge ruled that there was no reason at that time to order

a change of venue, and referred the issue to the discretion of the trial court. In ruling that a change of venue was not warranted at that time, the Assignment Judge relied on the standard articulated in State v. Wise, 19 N.J. 59, 73-74 (1955), namely, whether there was "clear and convincing proof that a fair and impartial trial cannot be had" in a given venue. In State v. Williams, 93 N.J. 39, 63 (1983), we articulated a new standard to be used by trial courts when considering a request for change of venue. Under the Williams standard, courts are to determine whether there exists a "realistic likelihood of prejudice" resulting from pretrial publicity. While the Assignment Judge admittedly applied the incorrect standard in passing on the change of venue request, the trial court before whom defendant was tried did not. On each of the numerous occasions on which defendant moved for a change of venue, the trial court applied the correct Williams standard. The dissent concludes that the trial court's denial of the change of venue motion was based on the "application of an erroneous and antiquated standard." That conclusion is mistaken in that the dissent's reference to the "trial court" fails to distinguish between the single venue ruling of the Assignment Judge who passed on the admissibility of the survey, and the venue rulings of the court before whom defendant was tried. The latter court never applied the incorrect standard.

On the first day of jury selection, September 24, 1984, defense counsel renewed the motion for a change of venue, which the trial court denied. Thereafter, throughout the jury selection period, defense counsel repeatedly moved for a change of venue. Finding that a fair and impartial jury could be selected, the trial court denied all the defendant's motions for change of venue.

The sixth amendment of the federal Constitution, made applicable to the states through the fourteenth amendment, and Article I, paragraph 10 of the state Constitution guarantee "to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct.

1639, 1642, 6 L. Ed. 2d 751, 755 (1961). In capital cases, it is particularly important for the trial court "to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process." State v. Williams, supra, 93 N.J. at 63.

It is also well established, however, that a defendant is not entitled to jurors who are totally ignorant of the facts and issues involved in a given case:

In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. [Irvin v. Dowd, supra, 366 U.S. at 722-23, 81 S. Ct. at [1642-43], 6 L. Ed. 2d at 756 (citations omitted, emphasis added).]

In New Jersey, we have recognized the concerns expressed in Irvin v. Dowd by holding that pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury. State v. Biegenwald, supra, 106 N.J. at 35. "While the constitutional standard for a fair trial requires 'a panel of impartial, indifferent jurors,' the jurors actually empanelled need not be ignorant of the facts of the case." State v. Sugar, 84 N.J. 1, 23 (1980) (citation omitted).

Defendant's basic premise is that because many prospective and deliberating jurors had heard about the case as a result of the extensive pretrial publicity, he was unable to secure a fair and impartial jury. Defendant contends that the best remedy to combat this pretrial publicity was for the trial court to grant defendant's motion for a change of venue. Short of a change of venue, the defendant argues that the only other way to obtain a fair and impartial jury was for the trial court to have excluded for cause any juror who had read or heard about the case. Implicit in both these assertions is defendant's contention that the publicity in this case was so extensive and pervasive

that the jurors' prejudice must be presumed. We are unpersuaded.

In recent capital cases we held that a trial court has the discretion to change venue where it is "'necessary to overcome the realistic likelihood of prejudice from pretrial publicity.'" State v. Biegenwald, supra, 106 N.J. at 33 (quoting State v. Williams, supra, 93 N.J. at 67-68 n. 13); see State v. Bey, 96 N.J. 625, 630 clarified at 97 N.J. 666 (1984). In State v. Biegenwald, we recognized, as do the federal courts, that in determining whether such a realistic likelihood of prejudice exists in a particular case, a court must first distinguish

between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S. Ct. 1507, 1516, 16 L. Ed. 2d 600, 614 (1966); Estes v. Texas, 381 U.S. 532, 542-44, 85 S. Ct. 1628, 1632-34, 14 L. Ed. 2d 543, 550-51 (1965); Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S. Ct. 546, 549-50, 13 L. Ed. 2d 424, 429 (1965); Rideau v. Louisiana, 373 U.S. 723, 727, 83 S. Ct. 1417, 1419, 10 L. Ed. 2d 663, 665-66 (1963); Marshall v. United States, 360 U.S. 310, 312-13, 79 S. Ct. 1171, 1172-73, 3 L. Ed. 2d 1250, 1252 (1959) (per curiam), and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel. [106 N.J. at 33.]

For instances of the latter type of case, see Patton v. Yount, 467 U.S. 1025, 1032-35, 104 S. Ct. 2885, 2889-91, 81 L. Ed. 2d 847, 854-56 (1984); Dobbert v. Florida, 432 U.S. 282, 301-03, 97 S. Ct. 2290, 2302-03, 53 L. Ed. 2d 344, 361-62 (1977); Murphy v. Florida, 421 U.S. 794, 800-03, 95 S. Ct. 2031, 2036-2038, 44 L. Ed. 2d 589, 595-97 (1975); Irvin v. Dowd, supra, 366 U.S. at 723-28, 81 S. Ct. at 1642-46, 6 L. Ed. 2d at 756-59; Simmons v. Lockhart, 814 F.2d 504 (8th Cir.1987), cert. den., U.S. , 108 S. Ct. 1489, 99 L. Ed. 2d 717 (1988); United States v. DePeri, 778 F.2d 963 (3rd Cir.1985), cert. den. sub nom. Murphy v. U.S., 457 U.S. 1110, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986).

Cases in which prejudice due to pretrial publicity may be presumed are relatively rare and arise out of the most extreme circumstances. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S. Ct. 2791, 2800, 49 L. Ed. 2d 683 (1976) (citing case in which "trial court had failed to use even minimal efforts to insulate the trial and jurors from the 'deluge of publicity'").

In Biegenwald, we contrasted cases in which prejudice was presumed, such as Rideau v. Louisiana, supra, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663, and cases in which prejudice was not presumed, such as Murphy v. Florida, supra, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589. State v. Biegenwald, supra, 106 N.J. at 34-35.

In Rideau, during the two months preceding jury selection, the defendant's detailed confession to a murder was televised three times and seen by a substantial number of residents of the parish in which the crime took place. The Supreme Court held that a change of venue should have been granted because the televised confession in a "very real sense was Rideau's trial. . . . Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality." 373 U.S. at 726, 83 S. Ct. at 1419, 10 L. Ed. 2d at 665. In Murphy v. Florida, supra, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589, the defendant also received tremendous publicity because of his prior robbery of the Star of India Sapphire from a New York museum. It was undisputed that the publicity about his prior convictions was widespread. Indeed, each juror had some knowledge of defendant's past convictions. Nonetheless, the Supreme Court upheld the denial of defendant's change of venue motion, noting that publicity had largely ceased seven months before jury selection. In so ruling, the Court stated:

The voir dire in this case indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. Some of the jurors had a vague recollection of the robbery with which petitioner was charged and each had some knowledge of petitioner's past crimes, but none betrayed any belief in the relevance of petitioner's past to the present case. [ Id. at 800, 95 S. Ct. 2031, 2036, 44 L. Ed. 2d at 595 (footnotes omitted).]

As we noted in State v. Biegenwald, the Supreme Court distinguished the intrusiveness of the publicity in Murphy from that found in Rideau v. Louisiana, supra, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663, and similar cases by observing:

The proceedings in [those] cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any

notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner's trial was not fundamentally fair. [106 N.J. at 35 (quoting Murphy v. Florida, 421 U.S. at 789, 95 S. Ct. at 2036, 44 L. Ed. 2d at 594).]

See also Coleman v. Kemp, 778 F.2d 1487, 1489, 1538 (11th Cir.1985) (held: totality of circumstances permitted finding of presumed prejudice due to pretrial publicity: "the manifest picture that emerges is a community that was deeply prejudiced as to both guilt and sentence"), cert. den., 476 U.S. 1164, 106 S. Ct. 2289, 90 L. Ed. 2d 730 (1986); Johnson v. State, 476 So. 2d 1195 (Miss.1985) (court presumed prejudice due to media saturation and totality of circumstances, including fact that murder victim was the white mother of a police officer and defendant was black).

The Supreme Court of California has adopted a standard for granting changes of venue due to potentially prejudicial publicity that is very similar to our "realistic likelihood of prejudice" standard:

A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. . . . A showing of actual prejudice shall not be required. [Maine v. Superior Court, 68 Cal. 2d 375, 438 P. 2d 372, 377, 66 Cal.Rptr. 724, 729 (1968) (emphasis added).]

A California court, however, will not presume prejudice without first examining certain factors that measure the potentially prejudicial effects of pretrial publicity. Martinez v. Superior Court of Placer County, 29 Cal. 3d 574, 629 P. 2d 502, 174 Cal.Rptr. 701 (1981). These factors include the nature and extent of the news coverage, the size of the community, the nature and gravity of the offense, and the respective standings of the victim and the accused in the community. Id. at 578, 629 P. 2d at 504, 174 Cal.Rptr. at 703 (based on cited factors there was reasonable likelihood that fair trial could not be had without venue change); Williams v. Superior Court of Placer

County, 34 Cal. 3d 584, 668 P. 2d 799, 194 Cal.Rptr. 492 (1983) (held: change of venue motion mistakenly denied; defendant was member of minority group and stranger to community; victim was white and from prominent family; and case had political overtones). But see People v. Balderas, 41 Cal. 3d 144, 711 P. 2d 480, 496-99, 222 Cal.Rptr. 184 (Cal.1985)(held: pretrial publicity not presumptively prejudicial where (1) neither victim nor defendant prominent; (2) county population equals 405,600; and (3) no evidence of unusual local hostility toward defendant's ethnic group); Odle v. Superior Court of Contra Costa County, 32 Cal. 3d 932, 654 P. 2d 225, 187 Cal.Rptr. 455 (1982) (held: venue motion properly denied where more than two years passed between time of intense media coverage and prospective trial date, publicity not geographically pervasive, publicity not particularly hostile, and standing of accused and victim were neutral factors in case). According to California's high court, a defendant whose pretrial venue motion is denied may renew that motion if the voir dire later reveals that there is actual prejudice against the defendant due to pretrial publicity. Id. at 947, 654 P. 2d at 234, 187 Cal.Rptr. at 464.

In State v. Biegenwald, we recognized that there was extensive pretrial publicity, including numerous articles in which the prosecutor "repeatedly assumed defendant's guilt and also stated that defendant killed only for pleasure." 106 N.J. at 31. We concluded, however, that

this is not a case in which the trial court was required to presume prejudice prior to the jury voir dire. The extensive pretrial publicity was concentrated in April and May, 1983. In addition to prohibiting further comment by counsel, the trial court adjourned the trial date until mid-November, allowing nearly six months to permit the impact of the publicity to subside. [ Id. at 35.]

In our view, the instant case is distinguishable from those cases in which courts have presumed prejudice as a result of pretrial publicity. The facts of this case differ in several important respects: (1) there was no evidence of extreme community hostility, as distinct from fear, directed specifically against defendant; (2) neither the victim nor the defendant was a prominent member of the community; (3) the victim was not a

public servant; (4) the defendant was not an outsider; and (5) the community was not predisposed to his guilt. The absence of these factors persuades us that the pretrial publicity was not presumptively prejudicial. See Johnson v. State, supra, 476 So. 2d at 1213-1215. We find further support for this conclusion in the fact that two years elapsed between the time of most intense publicity and the commencement of jury selection. See State v. Biegenwald, supra, 106 N.J. at 35. We also note that the nature of the publicity in the instant case was not as inflammatory as that found in Rideau v. Louisiana, supra, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663, and Coleman v. Kemp, supra, 778 F.2d 1487, nor was the defendant's trial conducted in the circus-like atmosphere of Sheppard v. Maxwell, supra, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600, and Estes v. Texas, supra, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543.

Our dissenting colleagues are of the view that the case of Fisher v. State, 481 So. 2d 203 (1985), requires us to find reversible error in the trial court's refusal to grant a change of venue. We think not. That case is neither binding on this court, nor dispositive of the issue before us. In Fisher, the Mississippi Supreme Court found that the quantity and quality of pretrial publicity surrounding that case gave rise to a presumption of prejudice. As noted earlier, we find that such a presumption is not warranted in the instant case. In a very real sense, therefore, our disagreement with the dissenters is one of factual interpretation. We do not believe that the nature and quantity of pretrial publicity in this case gave rise to a presumption of prejudice; our dissenting colleagues, however, have examined the same facts and have reached a different conclusion. We do not, as the dissent suggests, "hold" that Fisher "was wrongly decided." We simply find that while the facts in Fisher might very well have warranted a presumption of prejudice, our interpretation of the facts before us does not command the same result. The publicity regarding defendant Fisher was more widespread and pervasive, and was markedly more hostile than any publicity concerning Koedatich. Moreover,

the publicity in Fisher saturated a considerably smaller community, and reached its most intense level only 10 1/2 months prior to trial. Given these factual distinctions, we do not feel that a result similar to the one reached in Fisher is warranted here.

Where prejudice is not presumed, the appropriate inquiry in determining whether a change of venue is necessary to overcome the "realistic likelihood of prejudice" is whether under the totality of circumstances "the jury process resulted in a fair and impartial jury." State v. Biegenwald, supra, 106 N.J. at 35-36. Thus, the court must examine the extent to which potential jurors are biased as a result of any publicity surrounding the case. In determining the actual bias of a juror, courts place great reliance on a trial court's voir dire examination of a juror. Patton v. Yount, supra, 467 U.S. at 1038-1039, 104 S. Ct. at 2892-2893, 81 L. Ed. 2d at 858. This is so because "the determination of a juror's bias is essentially one of credibility, and therefore largely one of demeanor. . . . [T]he trial court's resolution of such questions is entitled, even on direct appeal, to 'special deference.'" Ibid. In sum, in the absence of presumed prejudice resulting from pretrial publicity, "the Sixth Amendment inquiry turns largely on the adequacy of the voir dire." Welch v. United States, 466 A.2d 829, 835 (D.C.1983).

In New Jersey, we give great deference to the trial court in conducting the voir dire. As this Court stated in State v. Jackson, 43 N.J. 148, (1964), cert. den. sub nom. Ravenell v. New Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965), "the trial court is vested with broad discretionary powers in determining the qualifications of jurors. . . . [I]ts exercise of discretion will ordinarily not be disturbed on appeal." Id. at 160. In State v. Singletary, 80 N.J. 55 (1979), this Court discussed the rationale underlying this rule:

Decisions concerning the potential bias of prospective jurors are primarily subjective in nature. They require at bottom a judgment concerning the juror's credibility as he responds to questions designed to detect whether he is able to sit as a fair and impartial trier of fact. Consequently, such evaluations are

necessarily dependent upon an observation of the juror's demeanor during the course of voir dire -- observations which an appellate court is precluded from making.

Although a juror's professions of impartiality will not always insulate him from excusal for cause, see, e.g., State v. Jackson, supra; State v. Deatore, supra [70 N.J. 100 (1976)] they will be accorded a great deal of weight, see, e.g., State v. Grillo, supra; State v. Jefferson, 131 N.J.L. 70, 72 (E & A 1943). Inasmuch as the trial judge observed the venireman's demeanor, he was in a position to accurately assess the sincerity and credibility of such statements, and we should therefore pay due deference to his evaluation. . . . [ Id. at 63, 64.]

Thus, this Court has upheld the trial court's discretion in refusing to excuse for cause jurors whose exposure to pretrial publicity led them to form an opinion about the facts of the case and the guilt or innocence of the accused:

While the constitutional standard for a fair trial requires "a panel of impartial, 'indifferent' jurors," Irvin v. Dowd, 366 U.S. 717, 722 [81 S. Ct. 1639, 1642], 6 L. Ed. 2d 751 (1961), the jurors actually empaneled need not be ignorant of the facts of the case. . . . 'It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' [ State v. Sugar, supra, 84 N.J. at 23 (citations omitted).]

In State v. Williams, supra, 93 N.J. at 66-67, we set forth an "entire panoply of procedures" that a trial court may use "to determine and evaluate the character, availability, feasibility and efficacy of alternative methods of safeguarding against prejudice." In doing so, the trial court must draw upon "its own special judicial expertise and experience." Id. at 67. In addition to the options of securing foreign jurors to augment the jury pool, adjournment of the trial date and change of venue, we identified the voir dire as one of the most critical and important means of assuring jury impartiality:

[An] important, indeed critical, means for dealing with potential and latent bias is the voir dire. The court should consider the efficacy of more exhaustive and searching voir dire examinations. The court in conducting the voir dire should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias. The court could consider whether there should be a greater willingness to resolve doubts in favor of the defendant in excusing jurors for cause. Particularly in capital cases, trial judges should exercise extraordinary care in the voir dire of potential jurors * * *. [ Id. at 68-69 (footnotes omitted).]

In State v. Biegenwald, supra, 106 N.J. at 35-37, and State v. Ramseur, supra, 106 N.J. at 256-57, we continued our special deference to the trial court in reviewing the voir dire on both death qualification and publicity. In Ramseur, we noted both that "[a] sensitive weighing and appraisal of a juror's entire response must be made by the trial court in its duty to resolve the question of whether the juror has shown bias or prejudgment," 106 N.J. at 257, and that this Court is "perhaps too far removed" from the realities of the voir dire to appreciate the nuances concealed by a "bloodless record"; thus, deference to the trial court is usually in order. Id. at 260(quoting State v. Gilmore, 103 N.J. 508, 547 (1986) (Clifford, J., dissenting)).

We recognize that an appellate court faces certain difficulties when reviewing the adequacy of the voir dire. Among other things, the appellate court does not share the benefit of having made in-court observations of the potential juror. Despite an appellate court's inherently inferior vantage point, we perceive our role in reviewing the voir dire as follows:

[A]n appellate tribunal is likewise under a duty to make an independent evaluation of the facts and circumstances and of the juror's voir dire examination. It should determine for itself whether the pretrial newspaper stories are so pervasive and so prejudicial, or the juror's protestation of unaffected impartiality after reading them so unconvincing or doubtful that a new trial should be ordered.

[ State v. Van Duyne, 43 N.J. 369, 386 (1964), cert. den., 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965).]

In this case jury selection began on September 24, 1984, and ended on October 3, 1984. On the first day of jury selection,defense counsel renewed his motion for a change of venue, supplementing the record with a Sunday, September 23, 1984, front-page article from the Morris County Daily Record. The court denied the motion as premature. At the end of the first day of jury selection, defendant renewed the motion. The trial court again denied it. It noted that during the first day of jury selection, five out of twelve potential jurors had been preliminarily qualified (not excused for cause). It noted that of these five, two had no prior knowledge of the case. Based on the first day of jury selection, the trial court stated that a fair and

impartial jury could be selected. Publicity continued through the first few days of jury selection.

Defense counsel renewed his motion for a change of venue on the second day of jury selection, when he introduced an article from the previous day's Daily Record depicting the defendant "shackled and with armed guards escorting him to the Court. . . ." Defense counsel asserted that since many people read or heard about the case in the paper, he was forced to use peremptories for publicity purposes rather than for other reasons.*fn7 The court then denied the motion, stating: "I do not regard as an appropriate test the fact that someone has read about this case before. . . . There are people who don't even remember what they read . . . and there are people who say that they don't rely upon the press . . . for determining guilt or innocence but will rely upon the evidence presented in the courtroom. . . . [T]here is no evidence . . . that the citizens of

Morris County cannot give to the defendant a fair and impartial trial by jury." The defendant renewed his motion again on the third day of jury selection and again on October 1. The motions were denied. The trial court held that a fair and impartial jury could be selected.

9

The trial court took numerous precautions in conducting the voir dire. All 105 prospective jurors were required to fill out a questionnaire. The questionnaire contained general questions concerning the juror's education, occupation, physical condition, familiarity with the defendant, the prospective witnesses, and the lawyers in the case, and whether the juror or a member of his or her family or a close friend had ever been charged with a criminal violation or had ever been the victim of a crime. The questionnaire also contained the following questions:

Do you have any opinion as to the guilt or innocence of Mr. Koedatich on the charge contained in the indictment?

Yes [ ] No [ ]

Have you expressed an opinion as to the guilt or innocence of Mr. ...


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