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State v. Zola

Decided: August 16, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES E. ZOLA, DEFENDANT-APPELLANT



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

For affirmance in part, reversal in part and remandment -- Chief Justice Wilentz, and Justices Clifford, O'Hern, Garibaldi and Stein. The opinion of the Court was delivered by O'Hern, J. Handler, J., concurring in part and dissenting in part. Justices Handler and Pollack, concurring in part and dissenting in part.

O'hern

[112 NJ Page 390] This is a pre- Ramseur/Biegenwald capital case in which the defendant was sentenced to death. In State v. Biegenwald, 106 N.J. 13 (1987), appeal after remand, 110 N.J. 521 (1988), and State v. Ramseur, 106 N.J. 123 (1987), we determined the constitutionality of New Jersey's capital punishment act, N.J.S.A. 2C:11-3, and established standards for its application. In this case, tried before those decisions, the jury charge failed to comply with the Biegenwald requirement that to impose the death penalty the jury must be convinced beyond a reasonable doubt that the statutory aggravating factors of N.J.S.A.

2C:11-3 outweigh the mitigating factors. The charge here would have permitted imposition of capital punishment on a finding that the aggravating and mitigating factors balanced. Therefore, the State agrees that a retrial of the penalty phase is required.

Our review, then, is limited to the guilt phase errors claimed by defendant. We find none that tainted the trial; we thus affirm the conviction of murder. We also affirm the related charges.

I

This case arises from the particularly abhorrent killing of a frail 75-year-old widow who lived in a garden apartment complex where the defendant had been a caretaker. A neighbor saw the victim, Barbara Berrisford, return to her apartment from a hairdresser appointment on the morning of Thursday, January 13, 1983. Mrs. Berrisford's last known telephone conversation took place with her sister at 6:30 that evening; her sister later noted that Mrs. Berrisford had not sounded like herself and that her telephone had been hung up abruptly. Mrs. Berrisford did not attend her regular social meetings that Thursday afternoon and that Friday. The newspapers from January 14 to 17 piled up outside the apartment door; Mrs. Berrisford did not answer the door to pay the carrier.

On the morning of Monday, January 17, 1983, a worried neighbor had the superintendent of the complex enter the apartment. Mrs. Berrisford's body was found spread-eagled on her bed, clothed only in a girdle and wrapped in a sheet. Leather thongs had been tied to the victim's left wrist and right ankle; her right arm and left leg were found close to thongs attached to the corresponding corners of the bed. She had been wounded in the throat, in the left temple, and in the nose; her face had bled profusely; her throat and neck had been bruised.

Sixty percent of the victim's body was missing skin and showed signs of scalding; several pieces of the victim's skin

were found in the room. No sign of trauma to the victim's sexual organs was detected, nor was semen found in the victim's body. The County Medical Examiner ascribed her death to asphyxiation, which was later identified as the result of manual strangulation; the time of death was estimated to be late on Thursday, January 13. The victim's purse was missing and was never recovered.

An anonymous tip and a check of fingerprints and palm prints recovered at the crime scene led police to James Zola, a former maintenance man in the apartment complex. While employed by the complex, Zola's poor attempt to install Mrs. Berrisford's kitchen sink had led her to complain to his superior; Zola had later been fired, perhaps in part because of this complaint, along with other deficiencies in work habits.

The police arrested Zola at his mother's house on January 24, 1983. Pursuant to a search warrant, they found underwear and cigarettes that matched those recovered at the crime scene. They also found a pair of blue jeans that bore cat hairs comparable to those recovered from the underwear at the crime scene; these hairs were later found to match hair samples taken from the cat owned by defendant's female companion. The State's case was reinforced by evidence that Zola's own hairs matched those found at the crime scene on a bath mat, on a woman's blazer, on the thongs, and on the underwear. A neighbor of the victim recalled that on the morning of January 13 he had seen defendant peering from behind the door of an apartment near the victim's. The young woman who was living with defendant testified that he had been absent on the afternoon and evening of Thursday, January 13th, but that he had called her, and subsequently had returned home, in the early morning of Friday the 14th.

Defendant did not testify at trial, but through the testimony of a psychiatrist and a psychologist introduced his account of the killing: according to defendant, he had paranoically imagined, while under the influence of alcohol and drugs, that he was being pursued by police and police dogs. After taking

refuge in the basement of the apartment complex, defendant had broken into Mrs. Berrisford's empty apartment. His version was that when she returned he had grabbed her and asked her where the police were. To prevent Mrs. Berrisford from signaling the police, defendant tied her up and hit her head. Fearing that he had inflicted a fatal wound, defendant said that he had unsuccessfully attempted to revive Mrs. Berrisford, first by trying to give her food and drink, then by taking her clothes off and putting her in the shower. He said he went to check the door, leaving his victim in the bathtub with scalding water running; panicked by Mrs. Berrisford's condition when he lifted her out of the bathtub, he had put her on the bed to cover her up, and then had walked home in a daze and gone to sleep.

The jury found James Zola guilty of all counts charged: knowing and purposeful murder, burglary, aggravated sexual assault, kidnapping, and robbery. At the penalty phase, the State introduced certain photographs of the crime scene and relied on the other trial proofs to establish two aggravating factors: c(4)(g), that the murder was committed during a felony; and c(4)(c), that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim. The defense sought to establish four mitigating factors: c(5)(a), that the defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution; c(5)(c), that the defendant was young (twenty-four years old) at the time of the murder; c(5)(d), that the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired as a result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to the prosecution; and c(5)(h), general factors relevant to the defendant's character or record or to the circumstances of the offense.

Defendant relied on the guilt phase testimony of defense experts who had described his broken home and troubled past:

as a youth defendant had been emotionally disturbed and addicted to drugs, and had been sexually abused several times. Defendant's son had died in 1981, possibly because of the drug addiction of defendant's then-wife. A psychiatric social worker whose testimony had been excluded as inexpert during the guilt phase corroborated this account from her own interviews with defendant and from her review of his state records. Defendant's father testified on his behalf, but defendant's mother became upset and left the courtroom. In addition, two clergymen who had visited defendant regularly since his arrest agreed that his turning to religion while incarcerated indicated his good potential for rehabilitation.

The trial court instructed the jury that in order to weigh a mitigating factor it must agree unanimously that the mitigating factor existed; the jury was also informed that a death sentence would result unless it determined that any mitigating factors it found outweighed aggravating factors. The jury found the emotional disturbance and catch-all mitigating factors and the two aggravating factors charged. It determined that the former did not outweigh the latter. Defendant was sentenced to death. He appeals to us under Rule 2:2-1(a)(3).

Defendant has raised various constitutional challenges to his conviction. Issues similar to those raised in Ramseur and Biegenwald will not be discussed extensively here, but will be noted for completeness of the record and preserved by discussion, infra at 439. We here discuss the challenges specific to his trial.

II

Pretrial errors claimed.

A.

Did the refusal to permit attorney-conducted voir dire violate defendant's constitutional right to a fair trial or otherwise restrict his opportunity to exercise challenges for cause or peremptorily?

Voir dire is a shorthand expression for the questioning of a pool of potential jury members to select impartial jurors to hear a case. The first aspect of defendant's challenge to this process was resolved by our decision in State v. Biegenwald, supra, 106 N.J. at 26-30. We there held applicable to capital cases the rule of State v. Manley, 54 N.J. 259 (1969), as well as Rule 1:8-3(a), which states that for the purpose of determining whether challenge should be interposed, "the court shall interrogate" the prospective jurors. See also State v. Howard, 192 N.J. Super. 571 (App.Div.1983) (attorney-conducted voir dire is not in itself part of the constitutional guarantee of fair trial).

At the same time, we reiterated our concern "that in capital cases trial courts should be especially sensitive to permitting attorneys to conduct some voir dire." Biegenwald, supra, 106 N.J. at 30. Court-conducted voir dire is not an end in itself, but merely an efficient means to select an impartial jury. We note that in some cases a direct inquiry by counsel might replace the otherwise lengthy process of excusing jurors while court and counsel concur on a short follow-up question for the court to put to the recalled juror. The trial court allowing such direct inquiry would soon sense whether closer control of any counsel's questioning was required.

Before we address defendant's challenge to the scope of the court-conducted voir dire, a few words are in order about the general tenor of that process in this case. Although the trial court preferred to conduct all of the voir dire, it was sensitive to the nuances of the jurors' responses and in almost all instances receptive to counsels' suggestions regarding particular questions. In addition, the court implemented a form of "struck-jury" selection described in State v. Ramseur, supra, 106 N.J. at 239-43. Here the court undertook to qualify a panel of forty-eight jurors from which counsel would select the final jury. This was an especially time-consuming effort, we believe, because of the extensive pretrial publicity surrounding this case. The court reviewed its proposed general questions

and written questionnaire with counsel before voir dire commenced, and devoted twelve days to the selection of the jury in a thorough process marked by extensive cooperation with counsel.

As noted, the court was sensitive to the subtleties of the juror disqualification process and in this respect was fair to both the State and the defense. For example, it excused a juror who favored the death penalty, despite that juror's abjuring any commitment to impose that penalty "automatically" on a conviction of murder; it excused another juror who tried to rehabilitate herself after an initial response that she had thought "he was guilty" after reading about the case in newspapers; it retained a juror who would not impose the death penalty unless that sanction was justified by "overwhelming evidence" (not a statutory requirement), another who felt that "it would be extremely difficult" to impose the death penalty, and yet another who "didn't know if I could give somebody the death penalty"; it recalled another juror twice in response to attorney concern about the juror's answers to voir dire questioning.

There are some areas in which more inquiry would have undoubtedly been of assistance, as in the questioning of some jurors who expressed the view that capital punishment would be appropriate in some cases but not in others. It would have been better to know for certain whether rape-murder was the type of offense for which these jurors would apply the death penalty, and whether they would consider this sanction automatically justified by such offenses. Even when evaluating such situations, jurors must be able to follow the law and to weigh the factors prescribed by the capital punishment act.

We note that a particular juror cited in defendant's brief as being insufficiently questioned did have a tendency to answer the court in a "yes and no" fashion: although generally responding that she believed the death penalty was appropriate in some cases and not in others, she assured the court that she

could and would follow the law and impose a life sentence if the evidence justified that verdict.

Our review of the record assures us that at this initial phase of the trial the jurors fully understood that they would be given specific factors to guide them in the sentencing phase of the trial. The jurors all knew that this was a case of alleged rape-murder; they knew that they would be exposed to photographs that might shock them; they knew that the victim was elderly; they knew that they would be hearing testimony about narcotics; they knew that the case would turn in good measure on expert psychiatric evidence. Each juror was asked if he or she could evaluate such matters fairly and without predisposition. Some immediately and candidly told the court that they could not be impartial where drugs or rape or a helpless victim were allegedly involved. These jurors, as well as all whose professed lack of prejudice wavered on questioning, were discharged for cause.

We agree that it would have been appropriate for the court or for counsel to have asked additional open-ended questions directed to any specific feelings that the jurors may have had about capital punishment in the murder case before the court, which allegedly involved rape and robbery of the victim. On balance, however, "our independent review of the record reveals that the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury." Biegenwald, supra, 106 N.J. at 29. In addition, we are satisfied that no juror's attitude toward the death penalty portrayed the slightest bias in the guilt phase of the trial. As noted, the sentencing phase of this case must be retried.

B.

Did the death-qualification process itself deprive defendant of an impartial trial because fourteen percent of the jurors questioned were excluded on the basis that they were unalterably opposed to the death penalty?

This general issue was resolved in State v. Ramseur, supra, 106 N.J. at 248-61. We add only that although this case was tried before Ramseur, the trial court, in evaluating juror qualifications, did not limit itself to considering whether jurors were so-called " Witherspoon excludables," i.e., whether they would "automatically" impose or reject the death penalty.

In State v. Ramseur, supra, 106 N.J. at 255-56, we traced the evolution of the standard for the exclusion-for-cause of jurors from Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), through Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980), to Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). Witherspoon held that jurors who would automatically vote against the death penalty may be excused for cause. Adams and Witt modified Witherspoon by stating that "a prospective juror may be excluded for cause because of his or her views on capital punishment. That standard is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Witt, supra, 469 U.S. at 424, 105 S. Ct. at 852, 83 L. Ed. 2d at 851-52 (citation omitted) (footnote omitted). In adopting the Adams-Witt modification of Witherspoon as applied to the opponents of capital punishment, we observed in Ramseur that the protection accorded to a defendant under the New Jersey Constitution was generally co-extensive with that under the federal Constitution. 106 N.J. at 251, 256.

Although Witherspoon, Adams, and Witt dealt with the exclusion of opponents of the death penalty, in State v. Bey II, 112 N.J. 123 (1988), we held that the same standard should apply to jurors who are proponents of the death penalty. Insofar as jurors' ability to follow the evidence is concerned, they are equally bound, "whether they are for or against the death penalty." State v. Bey II, supra, 112 N.J. at 152.

As noted in our discussion of the voir dire issue, the court in this case was equally fair to both sides in applying the Bey II standard to evaluate the impartiality of potential jurors. Indeed, defendant objected to the prosecutor's use of peremptory challenges to excuse jurors who had "problems" with the death penalty. That objection would appear to be subsumed within the death qualification issue. Such jurors do not form a "cognizable group" under State v. Gilmore, 103 N.J. 508, 526 n. 3 (1986).

III

Trial errors claimed.

A.

Did the charge on diminished capacity shift to defendant the responsibility of disproving the culpable mental state for murder?

In State v. Breakiron, 108 N.J. 591 (1987), we revisited the doctrine of diminished capacity that the Court had first reviewed in State v. Ramseur, supra, 106 N.J. at 267-70. In Breakiron, we upheld the constitutionality of the "diminished capacity" statute, N.J.S.A. 2C:4-2, to the extent that it imposes on a defendant the burden of proving the presence of a mental disease or defect that has the capacity of negating the culpable mental state that is an essential element of the offense charged. Breakiron, supra, 108 N.J. at 618. At the same time, we emphasized that the statute intends no more than it states -- i.e., that the defendant need show only that the condition was present, not that it in fact negated the culpable mental state. To do otherwise would impermissibly shift to a defendant the burden of disproving an essential element of an offense. 108 N.J. at 610-11.

For purposes of this appeal defendant must abide by our ruling in that case (i.e., that the State need not disprove the existence of the disease or defect); nonetheless, he argues that the trial court's charge "drew no distinction between the subsidiary [existence of the disease or defect] and * * * the ultimate

[did it deprive defendant of knowledge or purpose] fact[s] * * * and in effect it set up a mandatory rebuttable presumption of the culpable mental state." We think not and find no error in the charge.

Preliminarily, we note that the jury was presented with competent and reliable evidence on the existence of the mental disease or defect. Dr. Gerald Cooke, the clinical psychologist, and Dr. Robert Sadoff, the psychiatrist, both examined defendant and were effective and credible witnesses on his behalf. We surmise that any question the jury may have had about the tenor of these experts' testimony concerned the realities of the crime more than any mistaken burden of proof.

Dr. Cooke, for example, reviewed defendant's mental troubles, his years of treatment in youth-service agencies, his broken home, his alcoholic and abusive parents, his broken marriage, and the death of his child. He traced defendant's decline through alcoholism and increased drug dependency to his "deteriorat[ion] into a psychotic state marked by paranoid delusions." Thus, the psychologist lent credence to defendant's account that on the day of the crime, he had sought refuge in the basement of the apartment complex and then entered the victim's apartment because he had felt himself pursued by dogs and police. In his interviews with the psychologist, defendant claimed that because he had believed that Mrs. Berrisford was a police officer or that she might signal the police, he had drawn the blinds and then struck her to quiet her. When she fell unconscious, he had sought to revive her by putting her under the bathtub tap; after she was scalded, he had attempted to aid her by wrapping her in the sheet. Thus Dr. Cooke testified that in his opinion Zola "did not intend to kill her." From his own contact with defendant, Dr. Sadoff repeated a similar account of the incident. In this psychiatrist's opinion, Zola "could not have knowingly or purposely killed [the victim]."

The doctors' thesis was sorely tested by the evidence: though Zola claimed to have struck the fully-clothed victim to quiet her, there was no blood on her clothes; her purse was never recovered; and Zola had sought refuge in the apartment of a tenant whose complaint had contributed to his termination. Indeed, Dr. Cooke admitted that if a rape had occurred, "it would not be consistent with the state [of mind] we're talking about."

The court was fair in its review of the presentation of these proofs to the jury. It ruled inadmissible, because of potential prejudicial effect, the evidence of a prior sexual assault committed by the defendant. It presented the diminished capacity issue to the jury with a straightforward charge generally drawn from the Model Jury Charge. In instructing the jury that "in the absence of such evidence [of diminished capacity] you may infer that the defendant had no mental disease or defect which would negate * * * a [criminal] state of mind," the court expressed the structure of the diminished capacity statute that sanity, and not guilty knowledge or purpose, is presumed. See Breakiron, supra, 108 N.J. at 607.

The one aspect of the diminished capacity charge that troubles us, other than its positioning in relation to the manslaughter counts, is the presence of language stating that defendant's burden is to "prove by a preponderance of the evidence that he suffered from a mental disease or defect which negates the state of mind which are elements of the offense. That is purposely and knowingly." (emphasis added). This element of the charge suggests that the defendant bore the burden of proving that at the time of the offenses a mental disease or defect did in fact negate his mental state. Taken in isolation, this would be counter to Breakiron. Previously, the court had charged the jury that even if defendant proved that he suffered from a mental disease or defect, "that fact alone would not dispose of the [mental state] issues." In addition, the court had charged the jury, at the end of all the knowledge/purpose offenses (murder, aggravated sexual assault, kidnapping, burglary

and robbery) that it need not consider the diminished capacity defenses if it found defendant not guilty of such offenses, then adding that "[i]f you find that the State has proven beyond a reasonable doubt each of the elements of the offense and the defendant's participation in the offense, you must then consider the evidence as to the defendant's mental disease or defect." This too, by isolating the stages of the jury's deliberations, might be seen as suggesting, rather than an order of deliberation, a shift in the burden of proof.

But we believe that the balance of the charge fairly conveyed to the jury its function. In the paragraphs immediately succeeding the "which negates" sentence, the trial court reemphasized the State's never-changing burden of proof:

Keep in mind, however, that although the burden rests upon a defendant to establish the defense of mental disease or defect by a preponderance of the credible evidence, the burden of proving the defendant guilty of the offenses charged here beyond a reasonable doubt is always on the State. And that burden never shifts to the defendant.

And the court added the qualification that the condition to be found need only be one that "would negate the states of mind which are elements of murder and certain of the other offenses." (emphasis added).

We recognize the continuing debate on the best manner of conveying the diminished capacity defense to the jury. See 121 N.J.L.J. 453 (March 10, 1988). We believe that the jury's understanding of this offense would be advanced by the suggestion offered before us in the Public Defender's brief. He proposed that in order to meet the constitutional requirement, the court should instruct the jury in words similar to these:

The defendant must prove by a preponderance of the evidence that he suffers from a mental disease or defect. However, the prosecution must prove beyond a reasonable doubt that defendant's mental disease or defect did not negate the state of mind which is an element of the crime, that is, purposely or knowingly. In other words, the prosecution must prove beyond a reasonable doubt that defendant acted purposely or knowingly despite his mental disease.

Unlike the Breakiron defendant, who was denied any charge on diminished capacity, this defendant was given a balanced charge. We are satisfied that the only burden imposed on the

defendant was to show the presence of the mental disease or defect that "would" or could negate the states of mind for murder, rape, or the other crimes charged. The State's burden, to establish the defendant's guilt beyond a reasonable doubt, never shifted.

B.

Did the placement of the diminished capacity charge confuse the jury and deprive the defendant of his right to have the jury consider the manslaughter offenses independently of that defense?

In addition to challenging the content of the diminished capacity charge, defendant contends that the position of the instruction resulted in the illogical placement of the lesser-included offenses of murder at the end of the entire list of offenses charged, rather than immediately following the murder charge. Defendant claims that this positioning and other language deprived him of the opportunity to have the jury consider his guilt of the manslaughter offenses, i.e., aggravated manslaughter and reckless manslaughter, independently of the diminished capacity defense.

For the purpose of this appeal, we shall concede, as defendant argues, that he was entitled to the manslaughter charges quite apart from the presence of diminished capacity. At the time of this trial, we had not yet decided State v. Crisantos (Arriagas), 102 N.J. 265, 278 (1986) (requiring submission of lesser-included manslaughter counts only when there is a "rational basis" in the evidence). Hence, court and counsel approached the lesser-included offense issues on the basis of whether there was even a scintilla of evidence that would warrant their submission to the jury. Defendant argues that the possibility of a manslaughter charge was certainly established by his statement to Dr. Cooke that he intended only to quiet the victim and that her death was thus unintended.

The trial court seemed to agree that it was appropriate to charge the two forms of reckless manslaughter, but noted the difficulty in deciding where to place these instructions in the

charge. The parties agreed that the diminished capacity defense applied only to the knowledge/purpose crimes: murder, felony-murder, kidnapping, rape, robbery, and burglary. Hence, the court chose to charge those crimes first, then charged diminished capacity, and finally turned to the manslaughter offenses.

However, in instructing the jury on the manslaughter offenses, the court stated:

If it is shown that the defendant suffered from a mental disease or defect such that he did not have the state of mind required by law to constitute murder, you must find him not guilty of murder and guilty of the crime of aggravated manslaughter or the lesser included offense of reckless manslaughter.

I shall charge you upon those two crimes upon completion of this topic [i.e., diminished capacity].

At the end of the diminished capacity charge the court instructed:

Now, ladies and gentlemen, should you find the defendant not guilty of murder and felony murder, because of the defense of mental disease or defect, as I have previously instructed you, then you should consider whether or not he is to be found guilty or not guilty of the crime of aggravated manslaughter. Even though it is not specifically set forth as a count in the Indictment[,] I instruct you that mental disease or defect does not excuse one from criminal liability or the commission of the crime of aggravated manslaughter. The Indictment alleges that the defendant unlawfully killed Barbara Berrisford on January 13, 1983 at 144 A. Wert Avenue, Hamilton Township. According to the applicable law, criminal homicide constitutes aggravated manslaughter when the attacker recklessly causes death under circumstances manifesting extreme indifference to human life. [The court then explained the elements of aggravated manslaughter.]

The question posed is whether this portion of the charge deterred or prevented the jury from returning an available manslaughter verdict.

The suggested order of deliberation given to juries by courts, although an understandable exercise in jury management,

inevitably raises such questions. In this case we believe that the court intended to convey no more than the principle that the jury should not be required to enter verdicts on lesser-included offenses when they have found guilt of greater offenses. Recall that the court had earlier charged the jury that they need not consider diminished capacity in respect of murder if it found that without analyzing that defense it had already acquitted the defendant of murder. But if it had considered diminished capacity vis-a-vis the murder and had then acquitted the defendant of murder, it would next have had to consider the available verdicts of manslaughter. Did this mean that it could not otherwise consider the available manslaughter verdicts? We think not.

The verdict sheet contained in the appendix suggested the kind of process that the court had in mind. Count One required the jurors to consider the charge of murder. On this charge, the court instructed the jury that if it found the defendant guilty of murder, it should go no further; however, if it found the defendant not guilty of murder, it then had to consider the offense of felony murder. If it found the defendant guilty of felony murder, it was to go no further as far as Count One was concerned; however, if it found defendant not guilty of felony murder, then it had to consider the offense of aggravated manslaughter. If it found the defendant guilty of aggravated manslaughter, then it could go no further as far as Count One was concerned; however, if it found the defendant not guilty of aggravated manslaughter, then it had to consider the offense of reckless manslaughter.

This concept of sequential resolution of available verdicts poses its own internal problems. See People v. Boettcher, 69 N.Y. 2d 174, 513 N.Y.S. 2d 83, 505 N.E. 2d 594 (1987) (juries should not be permitted to consider lesser included offenses until after they have unanimously found defendant not guilty of the greater crime). The premise is "that it is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just

verdict by applying the facts to the law as it is charged." Boettcher, supra, 69 N.Y. 2d at 183, 513 N.Y.S. 2d at 87, 505 N.E. 2d at 597. But in advancing that premise care must be taken to avoid the stratification of thought that would deter a jury from returning the proper available verdict. We believe that the court here was attempting to ensure such fairness in the jury's deliberations. As noted, the State and defense differed over the relevancy and positioning of the manslaughter charges. The State argued that defendant's diminished capacity defense was the only justification for these charges; the defense contended that the manslaughter charges were appropriate because there was evidence that defendant had intended only to silence the victim. We believe that the court clearly intended to permit each of the views of manslaughter to be considered by the jury. At the close of the charge conference on this issue the defense argued:

THE DEFENSE: There's no question there is sufficient evidence here [independent of diminished capacity] to charge aggravated manslaughter by any stretch of the imagination as much [as] to charge robbery in this case.

THE COURT: I'm going to charge it.

Although it is probably preferable that the included offense charges be given in the context of the principal charge, because of the unusual circumstances of this case (unlike Breakiron, diminished capacity was raised as a defense to all counts, not just murder), and because we are convinced that the charge did not have the capacity of producing an unjust result, we would not reverse the conviction on this basis. We are satisfied that the jury, given the forceful closing arguments of defense counsel and the unrestricted choice among the homicide offenses shown on the verdict sheet (see Appendix A), knew that it was charged to enter a verdict of manslaughter if the evidence supported such a conclusion. Defense counsel placed this issue squarely before the jury:

But keep in mind [the] knowing and purposeful elements, particularly as to murder. That it's the State's burden of proof beyond a reasonable doubt. Burden of proof beyond a reasonable doubt, any reasonable doubt. Any reasonable doubt must be resolved in Jim's favor. What other evidence, what

other scenario of events -- excuse me, accounts for all the evidence in this case. When you get into that jury room on Count One [the murder count], you will have four choices under the murder Statute. I'm sorry, under the murder count. Only the first involves a knowing and purposeful murder. You also have the choice of felony murder. Judge Schroth will ably instruct you as to what that is, but basically it is a killing during the commission of some other offense like burglary. You will also have the choice of aggravated manslaughter and manslaughter. Judge Schroth again will again explain the difference to you. But basically they are unintentional killings which is just what Dr. Cooke and Sadoff said happened here. You know, you were very carefully selected for this case. The jury selection process took approximately three weeks. Everyone in this courtroom has faith in your fairness and your ability. Your ability to use your common sense, your intelligence and your life experiences. Use those to reach a just and proper verdict, particularly to Count One. No purposeful or knowing murder here. There was a manslaughter. An unintentional killing. When you consider fairly and impartially all that was seen there and all that was said here, you'll reach the just and proper verdict in this case.

The jury concluded that murder, not manslaughter, was the just and proper verdict. (In the penalty phase the jury found that defendant did not suffer from a mental disease or defect that could have "significantly impaired" his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to law, even were that defect not of a degree sufficient to constitute a defense to the crimes charged.) Defendant now objects that the court's charge did not directly relate the diminished capacity evidence to the reckless manslaughter counts. On the issue of potential prejudice, we note that there is one aspect of the charge that favors the defendant. The court gave the defendant the benefit of the so-called "partial responsibility" charge by instructing the jury that if it accepted the diminished capacity defense set forth by defendant, "[it] must find him not guilty of murder and guilty of the crime of aggravated manslaughter or the lesser included offense of reckless manslaughter." See State v. Ramseur, supra, 106 N.J. at 269-70 (diminished capacity does not automatically reduce murder to manslaughter). The defendant did not request a charge, nor was there evidence that defendant's mental condition would detract from the recklessness of his conduct. See State v. Juinta, 224 N.J. Super. 711 (App.Div.1988) (evidence of diminished capacity relevant to presence of states of

mind for manslaughter offenses). Here defendant invited a manslaughter verdict.

Finally, we are strengthened in our conclusion by the realization that had the jury, apart from any consideration of a mental disease or defect, doubted defendant's knowledge or purpose to kill, it could then have considered a verdict of felony murder. Even an unintentional homicide accompanied by any of the felonies found would have been a basis for that verdict. Hence, we would not reverse on this ground.

C.

Was the defendant prejudiced by the State's expert testimony on the issues of the sexual assault charges?

Defendant raises three objections to the testimony of the State's expert on serology, or the identification of bodily fluids: (1) that the expert was allowed to support his opinion on the basis of data undisclosed prior to trial; (2) that these data were gathered informally and were scientifically unreliable; and (3) that the expert was wrongfully permitted to offer an opinion beyond his expertise on an ultimate issue of fact -- the alleged sexual penetration of the victim.

As noted, the defendant was convicted of aggravated sexual assault. N.J.S.A. 2C:14-2a(6). The State found no evidence of injury to the organs of the victim and detected no semen in her genital or other cavities. Consequently, the State sought to prove sexual penetration of the victim by noting, in connection with all other circumstantial evidence (her unclothed body, bound and spread-eagled; the defendant's underwear found under her pillow) the apparent presence of saliva in her genital cavity. The defendant had been aware that analysis of a vaginal swab was to be offered in evidence to support the State's charge of aggravated sexual assault, an offense involving some form ...


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