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State v. Rose

Decided: September 22, 1988.


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

For affirmance of convictions and reversal of sentence; remand -- Justices Clifford, Pollock, Garibaldi and Stein. For reversal of convictions and sentences; remand -- Chief Justice Wilentz and Justices Handler and O'Hern. The opinion of the Court was delivered by Stein, J. Clifford, J., concurring. Wilentz, C.J., concurring in part, dissenting in part. Handler, J., dissenting. Justice O'Hern joins in Part II of this opinion. Chief Justice Wilentz joins in the majority opinion on the penalty phase but has filed a separate dissenting opinion on the guilt phase. Justice O'Hern joins in the majority opinion on the penalty phase, but joins in Part II of Justice Handler's dissenting opinion in respect of the guilt phase.


Defendant, Teddy Rose, was tried by an Essex County jury for the murder of Irvington police officer Anthony Garaffa. He was convicted and sentenced to death. He appeals directly to this Court as of right. R. 2:2-1(a)(3). We affirm his convictions for murder and for the related offenses.

The fairness of the sentencing proceeding in this case was marred by a series of prejudicial errors. These include the lack of a limiting instruction by the trial court concerning evidence of defendant's past conduct elicited by the State during cross-examination of defense witnesses, several instances of improper conduct by the Essex County Prosecutor, and the absence of any clarifying instructions to the jury concerning its function in weighing two aggravating factors, N.J.S.A. 2C:11-3c(4)(f) and (h), based on identical evidence. We therefore set aside the death sentence and remand the matter to the trial court for a new sentencing proceeding.


This case involves the shocking and senseless killing of an Irvington police officer. The uncontested evidence adduced during the guilt phase of the trial demonstrated that on August 8, 1984, at approximately 11:45 p.m., defendant, Rose, shot and killed Irvington police officer Anthony Garaffa with a sawed-off shotgun.

Earlier that evening defendant had been out with a friend, returning to his home in Irvington shortly after 11:00 p.m. He was approached by two acquaintances, Gerry Cuccolo and Paul Palermo. They told Rose they planned to burglarize a pizza restaurant and asked to borrow some of Rose's tools. Rose loaned them the tools, but the testimony at trial was contradictory about Rose also agreeing to act as a lookout. Cuccolo and Palermo proceeded to the pizzeria; however, the burglary plan was aborted when Cuccolo was observed in the hallway leading to the pizza parlor. The two returned a pry bar to

Rose, and Palermo, with Rose's consent, retained possession of the other tools.

Rose returned from his car to the corner of Springfield Avenue and 40th Street with Palermo, carrying a white canvas bag over his shoulder. In the bag was a sawed-off shotgun he had purchased a few weeks earlier in Pennsylvania. They joined Cuccolo and two other young men, Michael O'Keefe and a person known as "Mark." It was then about 11:30 p.m.

Palermo and Mark departed, and Cuccolo, O'Keefe, and Rose started walking down 40th Street. Rose took the lead and Cuccolo followed about five to seven feet behind, with O'Keefe to his right. An Irvington police car passed by. Rose waved to the driver and told Cuccolo that he thought it was someone he knew. The patrol car passed Cuccolo, O'Keefe, and Rose and pulled up to the corner. The driver then backed up the patrol car, stopping abreast of Cuccolo, O'Keefe, and Rose who stood by the curb.

Irvington Police Officer Anthony Garaffa was driving the patrol car. After stopping the car beside Cuccolo, O'Keefe, and Rose, he got out and approached them. Officer Garaffa held a flashlight in his hand. He shined the flashlight on the white canvas bag still over Teddy Rose's shoulder and inquired about its contents. According to the testimony of Cuccolo and O'Keefe, Rose responded that the bag contained a "rocket." As he was responding to Officer Garaffa's question, he removed the bag from his shoulder and placed it on the ground. Officer Garaffa asked to see what was in the bag. At that point, Rose put his hand in the bag, raised it up, said "and this," held the bag to Officer Garaffa's stomach and fired the shotgun. Officer Garaffa was knocked five or six feet into the street, flat on his back.

Rose dropped the gun and fled. Cuccolo attempted to aid Officer Garaffa, then tried to summon help with the patrol car radio but received no response. Cuccolo left the scene in an effort to obtain assistance, and found Irvington Police Officer

Robert Williams who was in the vicinity investigating the aborted burglary of the pizza parlor. Officer Williams ran toward Officer Garaffa's patrol car. He found Officer Garaffa in the street behind the vehicle, semi-conscious and severely wounded. Officer Williams immediately radioed for assistance. Other police officers arrived at the scene. Garaffa's pulse was rapid and weak, and his breathing was labored. The police began supplying him with oxygen, and emergency medical technicians arrived. Before Officer Garaffa could be placed in an ambulance, he experienced cardiac arrest, and the medical technicians had to administer cardio-pulmonary resuscitation.

In the ambulance Officer Garaffa regained consciousness and was able to breathe without assistance. He had severe pain in his legs and lower back and had to be restrained by a paramedic. He arrived at College Hospital in Newark at about 12:00 a.m. According to Doctor Thomas Corbyons, the head of the College Hospital Trauma Team, when Officer Garaffa arrived in the emergency room, he had "no blood pressure" and a low heart rate. Preliminarily, steps were taken to assist his breathing and restore his blood pressure and heart rate. He was then transferred to an operating room. Doctor Corbyons described his injury as "enormous." Approximately three-quarters of the aorta was "shot away," and the vena cava was lacerated over "almost its entire length." The wadding of the shotgun shell was imbedded in the spinal column. Despite the surgeon's efforts, Officer Garaffa's heart stopped beating during surgery, and the medical team was unable to resuscitate him. He was pronounced dead at 3:05 a.m.

In the meantime, defendant had driven to his aunt's house in Monmouth Junction. He told his aunt that he had shot a police officer in Irvington. From his aunt's house, he called Debby Wolfe, the woman he had been with earlier that evening, and told her that he had shot Officer Garaffa. Defendant and his aunt, Helen Pyne, drove to the Princeton Barracks of the New Jersey State Police between 1:00 a.m. and 1:30 a.m. Defendant told Sergeant Gary Knight of the State Police that he had shot

a police officer in Irvington, and that he wished to confess in order to ease his conscience. Sergeant Knight contacted the Irvington Police Department to confirm that an Irvington police officer had in fact been shot, and that defendant was wanted in connection with the shooting. When Rose began to tell Sergeant Knight what had occurred, Knight interrupted to give him Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Knight then administered Miranda warnings a second time to be certain the defendant understood his rights.

Sergeant Knight testified at the guilt phase about defendant's statement to him:

Q. What did he tell you happened?

A. He said that he had taken a gun out of the trunk of his car and bringing it into the house into where he lived and that he was confronted by a police officer. He had the gun in a sack and that when he was confronted by the police officer, the police officer had stated to him what was in the sack. He stated that he had a bottle rocket.

The police officer then asked him -- the police officer then asked him to take the object out of the bag. At that time Mr. Rose stated to me that when he took the weapon out the sack --

Q. Did he tell you he reached into the sack?

A. Yes.

Q. All right.

A. He reached into the sack and when he pulled it out of the sack it apparently had cocked and when it came out of the sack the gun went off striking the police officer in [the] abdomen.

Defendant was sweating and nervous when he spoke to Sergeant Knight; he was "pale, ashen," and frightened. He expressed the hope that Officer Garaffa would recover.

Detective Eugene Czaplinski and two other officers from the Irvington Police Department arrived at the Princeton Barracks sometime after 2:00 a.m. Miranda warnings were administered, and Rose signed a waiver-of-rights form. Detective Czaplinski then interrogated defendant, recording both the questions and answers on a typed statement that defendant signed. In his statement defendant gave this account of the shooting:

[A]s I reached into the bag I cocked the shotgun by pulling back the hammer with my thumb. I just looked at him and I just fired the gun.

Rose told Officer Czaplinski that he knew the gun was loaded with a 12-gauge, 7 1/2 shot shell when he cocked and fired it. He stated that he shot Officer Garaffa because he "panicked, did not want to get caught."

The police officers took the defendant back to Irvington that night. After another Miranda warning, Rose gave a second written statement in which he made a positive identification of the shotgun, denied taking any drugs or alcohol before the shooting, and stated that he had received "very good" treatment by the police from the time he had turned himself in. This statement was completed and signed by the defendant at 6:34 a.m., August 9.

An Essex County grand jury indicted defendant for (1) the purposeful or knowing murder of Irvington Police Officer Anthony Garaffa; (2) possession of a sawed-off shotgun; (3) possession of a sawed-off shotgun with a purpose to use it unlawfully against the person or property of another; (4) hindering apprehension; and (5) conspiracy to commit burglary. The conspiracy to commit burglary charge was severed from the other counts, and at the time of this appeal was still pending.

Following ten days of jury selection, the trial commenced on May 29, 1985. The State offered detailed evidence of the events that resulted in Officer Garaffa's death. In addition, evidence was introduced concerning defendant's reasons for acquiring the sawed-off shotgun, and the fact that he often carried the gun with him and had practiced shooting it. The State also offered evidence of an incident that occurred about a week prior to the murder, during which defendant had the shotgun in his possession as he and some friends were about to confront a black male with whom they had previously experienced some difficulty.

Defendant called no witnesses in the guilt phase. In his opening statement, defense counsel acknowledged that Rose had shot and killed Officer Garaffa, but argued that he did so in an "instantaneous act of fear and panic." He stressed that it was critical for the jury to determine whether the murder was "with premeditation * * * and with an evil mind." At the conclusion of the guilt phase, defense counsel requested that the trial court include in its jury charge the lesser-included offense of aggravated manslaughter. The trial court denied the requested charge. In summation, defense counsel acknowledged defendant's guilt. The jury found defendant guilty of all charges.

In the penalty phase, defendant invoked four mitigating factors: that he acted under the influence of extreme mental or emotional disturbance (N.J.S.A. 2C:11-3c(5)(a)); his age at the time of the murder (N.J.S.A. 2C:11-3c(5)(c)); that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired by mental disease and/or intoxication (N.J.S.A. 2C:11-3c(5)(d)); and circumstances concerning his background and character (N.J.S.A. 2C:11-3c(5)(h)). The defendant originally intended to prove the existence of another mitigating factor, that the defendant had "no significant history of prior criminal activity." N.J.S.A. 2C:11-3c(5)(f). However, after the trial judge denied defendant's motion to restrict rebuttal of this factor to evidence of prior criminal convictions, the defendant withdrew mitigating factor (5)(f).

The State advanced three aggravating factors at the penalty hearing: (1) that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim (N.J.S.A. 2C:11-3c(4)(c)); (2) that the murder was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement for another offense (N.J.S.A. 2C:11-3c(4)(f)); and (3) that the defendant murdered a public servant while the victim was engaged in the performance of his duty or because

of the victim's status as a public servant (N.J.S.A. 2C:11-3c(4)(h)). The State did not present any new evidence at the penalty phase; it simply moved into evidence all the testimony presented and the exhibits offered and accepted into evidence in the guilt phase.

Defense counsel called several witnesses at the penalty phase: Lee Claus, the defendant's grandmother, who raised him after he was deserted by his mother; Betty Ann Walker, the defendant's mother; Betty Jane Rose, the defendant's sister; Thomas Michael Rose and Ernest Rose, the defendant's half-brothers; and Helen Pyne. Eugene Thomas Hagey, Jr., and Larry Kukan, former employers of Teddy Rose, also testified. The defense called two expert witnesses: Dr. Leah Blumberg Lapidus, a professor of clinical psychology at Columbia University, and Dr. Robert A. Fox, Jr., a psychiatrist, who is professor of clinical psychiatry at New York University Medical Center and Director of In-Patient Psychiatry at New York University Hospital. Nicholas Ciufi, Assistant Principal of Irvington High School and a past teacher of defendant, testified, as did Regina Marie Doyle, Coordinator of Senior Outreach Services for the Irvington Mental Health Center, who had worked with Rose during his treatment at the Center from July to December 1982. Several friends of defendant also testified: Linda Mettler, Dorothy Frank, Pamela Ann Patinha, Joanne Macavia, Denise Marie Korski, Debra Ann Wolfe, and Suzanne Malamut. Defendant also took the stand during the penalty phase.

The jury found that the prosecution had proved two aggravating factors (N.J.S.A. 2C:11-3c(4)(f) and (h)), that the defendant had proved two mitigating factors (N.J.S.A. 2C:11-3c(5)(a) and (h)), and that the aggravating factors substantially outweighed the mitigating factors. The court imposed a sentence of death.

In July 1985, defendant moved for a new trial. The court denied defendant's motion, and proceeded to sentence him on

the noncapital counts to a four-year prison term on count two and a nine-month term on count four, the terms to run concurrently. The guilty verdict on count three was vacated and merged with the murder conviction.

Defendant challenges his conviction and death sentence on numerous grounds including the deprivation of his federal and state constitutional rights to a fair trial. We now consider defendant's contentions.

A. Constitutionality

Defendant challenges the constitutionality of New Jersey's capital punishment act, N.J.S.A. 2C:11-3c to g, an issue we addressed and decided in State v. Biegenwald, 106 N.J. 13, 25-26 (1987), and State v. Ramseur, 106 N.J. 123, 166-97 (1987). We adhere to our conclusion that the death penalty statute does not violate either federal or state constitutional prohibitions against cruel and unusual punishment. U.S. Const. amends. VIII, XIV; N.J. Const. of 1947 art. I, para. 12.

B. Jury Selection Issues

1. Death Qualification

Defendant challenges the death-qualification process used in the course of selection of the jury. His primary contention is that the exclusion of jurors from the guilt phase, because their views on the death penalty would require their exclusion from the penalty phase, violates his constitutional right to be tried by an impartial jury. Furthermore, defendant argues that the very process of death qualification, focusing as it does on the willingness of jurors to impose the death penalty in a case in which guilt has yet to be determined, inevitably conditions the jurors to assume the defendant's guilt and thus violates his right to an impartial jury. We rejected both of these arguments in State v. Ramseur, supra, 106 N.J. at 248-54, the first expressly and the second by implication. In Ramseur, we observed that under our capital punishment act

the duties of jurors "contemplate both phases of a capital trial, the guilt/innocence phase and the penalty phase," and thus "the State is entitled to insist on a properly conducted interrogation of jurors prior to the guilt phase of a capital trial to determine whether their views on capital punishment will substantially interfere with their duties as jurors." Id. at 254. We adhere to that view. Cf. Buchanan v. Kentucky, U.S. , n. 16, 107 S. Ct. 2906, 2913 n. 16, 97 L. Ed. 2d 336, 350 n. 16 (1987) (upholding death qualification where death penalty sought only as to codefendant, despite Court's assumption that death qualification "produces juries somewhat more 'conviction prone' than nondeath-qualified juries").*fn1 We add only that trial courts, on their own initiative or at counsel's request, may take into account a defendant's concerns about the collateral effects of the death qualification process by addressing the issue specifically in the course of the voir dire.

2. Exclusion of Certain Jurors

In Ramseur this Court adopted the death qualification test as reformulated by the United States Supreme Court in Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980), and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). State v. Ramseur, supra, 106 N.J. at 256 ("Henceforth, trial courts shall use the Adams test in death-qualifying a jury."). In Adams, the Supreme Court held that the death-qualification test 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." Adams v. Texas, supra, 448 U.S. at 45, 100 S. Ct. at 2526, 65 L. Ed. 2d at 589; see also Wainwright v. Witt, supra, 469 U.S. at 424, 105 S. Ct. at 852, 83 L. Ed. 2d at 851-52 (the Adams standard "does not require that a juror's bias be proved with 'unmistakable clarity';" the "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'").

We also noted in Ramseur, 106 N.J. at 256, that trial courts must be accorded a "sound measure of discretion" in determining whether or not a juror's views on the death penalty would prevent or substantially interfere with the juror's performance of his duties:

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 in answering the questions. [Id. at 257.]

Before us defendant challenges the exclusion of five jurors, Deborah Campbell, Valeria Cacossa, Grace Cohn, Janet Stone, and George Muller. Although defense counsel objected to the removal of juror Cohn, no objection was asserted in the course of voir dire to the removal of the other four jurors. We have carefully reviewed the interrogation and responses of each of the jurors whose exclusion is challenged. We are convinced that in each case there is substantial support in the record for the trial court's conclusion that the jurors' views on the death penalty would "prevent or substantially interfere with the performance of [their] duty." Jurors Cacossa, Stone, and Muller flatly stated that they would never vote to impose the death penalty. Jurors Campbell and Cohn expressed a strong desire to avoid responsibility for a decision resulting in death and their responses indicated that it was highly unlikely that either could ever vote to impose the death penalty. Accordingly, the trial court's exclusion of these jurors did not constitute an improper exercise of discretion.

3. Challenge to Composition of Grand and Petit Juries

Defendant contends that the grand and petit juries that indicted, convicted, and sentenced him under-represented blacks and that, as a result, the county deprived him of his federal and state constitutional rights to an impartial jury and to equal protection of the laws. Defendant also asserts that the grand jury procedures used by the assignment judge violated New

Jersey selection statutes and that the selection process for grand jury forepersons improperly excluded blacks and women. In support of this assertion, defendant relies on the challenge to the composition of the Essex County grand and petit juries advanced in defendant's briefs in Ramseur.

We fully addressed each of these contentions in State v. Ramseur, supra, 106 N.J. at 212-36 and we adhere to the views expressed in that opinion.

C. Guilt Phase Issues

1. Refusal to Charge Lesser-Included Offense of Aggravated Manslaughter

Defendant contends that the trial court's refusal to charge the lesser-included offense of aggravated manslaughter deprived him of a fair trial and due process of law. Prior to summations in the guilt phase of the case, there was a colloquy between the trial court and counsel concerning the proposed jury charge. Initially, except for the prosecutor's inquiry to confirm that a charge concerning flight would be given, neither counsel submitted requests to charge to the court. The trial court then informed counsel that he did not intend to charge the jury on any lesser-included offenses, citing State v. Choice, 98 N.J. 295 (1985). In response, defense counsel specifically requested a charge of aggravated manslaughter. The trial court denied the requested charge.

Before us defendant first argues that the trial court incorrectly relied on State v. Choice as its source for the standard to apply in determining whether or not to charge aggravated manslaughter. In Choice we observed that when a defendant does not request a lesser included offense charge,

[t]he trial court does not * * * have the obligation on its own meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences might rationally sustain a manslaughter charge. It is only when the facts "clearly indicate" the appropriateness of that charge that the duty of the trial court arises. [98 N.J. at 299.]

The State concedes that since defense counsel requested the aggravated manslaughter charge, the Choice standard is inapplicable, and thus agrees with defendant's assertion that the controlling principles are set forth in State v. Crisantos (Arriagas), 102 N.J. 265 (1986):

[U]nder our Code it is improper for a trial court to charge manslaughter, even when requested by the defendant, if there is no evidence in the record to support a manslaughter conviction. To warrant the charge, there must be a "rational basis" for a manslaughter verdict.

Defendant contends that although no defense witnesses were called in the guilt phase of the trial, evidence adduced during the State's case afforded a rational basis for the jury to conclude that defendant's "fear and panic upon being approached by [Officer Garaffa] led him to mishandle the sawed-off shotgun and recklessly cause the officer's death." Defendant points to the testimony of his companion on the night of the shooting, Gerald Cuccolo, who confirmed that he was "surprised" and "shocked" when defendant shot Officer Garaffa, and to the testimony of Debra Wolfe that when defendant called her after the shooting, "[h]e was crying and he was nervous." Primarily, however, defendant relies on the testimony of Trooper Gary Knight of the New Jersey State Police, who questioned defendant when he turned himself in. Trooper Knight testified that defendant told him that he "reached into the sack and when he pulled it out of the sack it apparently had cocked and when it came out of the sack the gun went off striking the police officer in [the] abdomen." Supra at 472. Although defense counsel in his opening statement stated that "[defendant] shot Officer Garaffa in an instantaneous act of fear and panic," the only direct testimony on this point came from Irvington police detective Eugene Czaplinski, who had

interrogated Rose. Detective Czaplinski testified that he asked Rose, "Why did you shoot the officer?", and defendant replied: "I panicked, did not want to get caught."

The State argues that Trooper Knight's testimony is simply a paraphrase of defendant's statement to him, that defendant never told Trooper Knight that the gun was fired "accidentally,"*fn2 and that the phrases "apparently had cocked," and "the gun went off" were vague acknowledgments of guilt that omitted any explanation of how the hammer became cocked or how the shotgun was fired. The State asserts that defendant's written statement describing the shooting, given to Czaplinski and other Irvington police officers, refutes any possible suggestion that the shooting was accidental:

I reached into the bag and as I reached into the bag I cocked the shotgun by pulling back the hammer with my thumb. I just looked at him and just fired the gun.

The State also relies heavily on the uncontradicted testimony of its ballistic expert, Kenneth Salvato. He testified that the shotgun could not be fired accidentally; that to fire the weapon required a two-step procedure -- cocking the hammer and pulling the trigger; and that approximately 4 1/4 pounds of pressure was required to pull the trigger.

We have carefully scrutinized the record and independently reviewed all of the testimony pertinent to the requested lesser-included-offense charge. In our view the evidence would not have afforded the jury a rational basis for returning a verdict convicting the defendant of aggravated manslaughter. N.J.S.A. 2C:1-8e; State v. Crisantos (Arriagas), supra, 102 N.J. at 275.

The Code defines aggravated manslaughter as follows:

Criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life. [ N.J.S.A. 2C:11-4a.]

Under the Code, one acts recklessly "with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct." N.J.S.A. 2C:2-2b(3). By contrast, conduct is "knowing," with respect to a result, if the person is aware "that it is practically certain that his conduct will cause such a result," N.J.S.A. 2C:2-2b(2); it is "purposeful," if it is the person's "conscious object" to cause such a result. N.J.S.A. 2C:2-2b(1).

Defendant's principal contention is that aggravated manslaughter should have been charged because there was some evidence in the record suggesting that the shooting was accidental and not intentional. We find that the overwhelming weight of the proofs in the guilt phase establish that defendant's act of firing the shotgun was volitional. Defendant's familiarity with the operation of the shotgun and its destructive capacity was illustrated by evidence that he had practiced shooting it on several occasions during the weeks preceding the

homicide. His use of the words "and this" as he fired the shotgun, his graphically candid statement to detective Czaplinski that "I just looked at him and just fired the gun," and the uncontradicted testimony of the ballistics expert concerning the pressure required to pull the trigger combine to demonstrate that whatever may have prompted defendant to fire the shotgun, the defendant's conduct in firing the weapon was intentional and not accidental. In the context of all the guilt-phase testimony, defendant's statement to Trooper Knight could not rationally be construed as an assertion that the shooting was accidental. Rather, as argued by the State, the statement reflected an acknowledgment of defendant's responsibility for the shooting without any explanation of how it occurred. It constituted far too speculative and insubstantial a basis for a manslaughter verdict. Hence, the trial court's refusal to charge the jury with the lesser-included offense of aggravated manslaughter, on the assumption that the jury could have concluded the shooting occurred accidentally, was not error since the evidence during the guilt phase did not afford a "rational basis" for such a jury verdict.

Defendant's collateral argument that the shooting occurred because he "panicked," and "did not want to get caught" does not relate to the question of volition nor negate the evidence that the shooting was knowing or purposeful. Panic is an emotional condition, characterized by sudden, even groundless, fright. It does not constitute a justification for conduct pursuant to the Code, see N.J.S.A. 2C:3-1 to -11 (codifying valid defenses, "panic" not included), nor was panic recognized as a defense to crime at common law. Further, defendant's "panic" at the time of the shooting was not offered as evidence in the guilt phase of a mental defect to prove diminished capacity, i.e., that defendant did not have a state of mind that is an element of the offense. N.J.S.A. 2C:4-2; see State v. Breakiron, 108 N.J. 591, 607-09


Our dissenting colleagues assert that because of defendant's "panic," his state of mind may have been reckless, rather than knowing or purposeful, with respect to the result of the shooting of Officer Garaffa. Their contention is that even if the firing of the shotgun was intentional, the record afforded the jury a rational basis for concluding that defendant's conduct was prompted by panic, and therefore defendant "recklessly" caused Officer Garaffa's death, N.J.S.A. 2C:11-4a, by consciously disregarding the substantial risk that death would result from the firing of the shotgun. N.J.S.A. 2C:2-2b(3). Post at 550-553, 554-560 (Handler, J. dissenting); post at 549, 550 (Wilentz, C.J., concurring and dissenting). Justice Handler hypothesizes that defendant's "blind panic" may have prevented him from realizing how close he was to Officer Garaffa or that the weapon was aimed at the officer's abdomen, and that he may have acted without thinking about the consequences of his actions. Post at 557 (Handler, J., dissenting).

Our colleagues' position ignores the reality that in the absence of insanity or diminished capacity, a person firing a sawed-off shotgun into the abdomen of another at point-blank range necessarily is aware that "it is practically certain" that such conduct will cause the victim's death. N.J.S.A. 2C:2-2b(2). [112 NJ Page 485] Their position also appears to accord undue significance to an isolated reference to "panic" that appears once in the guilt-phase trial record. As noted, Detective Czaplinski testified that defendant, when asked why he shot Officer Garaffa, responded: "I panicked, did not want to get caught." There was no other testimony in the guilt phase from defendant or any other witness that suggested that defendant was unaware of the inevitable consequence of firing the shotgun at Officer Garaffa's abdomen. There was no testimony, expert or otherwise, in the guilt phase that this defendant's capacity to be aware of the inevitable result of his conduct was diminished because of a mental or emotional condition. Hence, an aggravated manslaughter charge would have invited the jury to speculate, in the absence of evidence of defendant's mental processes, about whether defendant's "panic" interfered in some manner with his capacity to be aware of the consequences of his act. There simply was no evidence put before the jury in the guilt phase that would have supported such a determination. Defendant's statement that he "panicked, did not want to get caught," does not constitute a rational basis for a jury to conclude that defendant was merely reckless and thus unaware that firing the shotgun into Officer Garaffa's abdomen was "practically certain" to cause his death. We therefore find no error in the trial court's refusal to charge aggravated manslaughter.*fn4

2. Admission of Evidence of Defendant's Past Conduct at the Guilt Phase

Defendant contends that testimony concerning two instances of past conduct was improperly admitted into evidence during the guilt phase, thereby depriving him of a fair trial. The first incident concerned defendant's purchase of the sawed-off shotgun in Pennsylvania one or two months before the shooting of Officer Garaffa. Rose purchased the gun from Gordon Seale, a forklift operator in Pottstown, Pennsylvania. The State called Seale as a witness. Over defense counsel's objection, Seale testified that Rose paid him sixty dollars for the gun, which he needed because "he was having some problems over in Jersey with some niggers." The trial court rejected the contention that the testimony was irrelevant and unduly inflammatory, concluding that it was material to the third count of the indictment charging defendant with possession of the shotgun with a purpose to use it unlawfully. N.J.S.A. 2C:39-4a. The court stated:

[T]he fact of the matter is the testimony I've heard so far all seems to indicate Officer Garaffa came by here, that no one expected [him] to go by there. There was no evidence Mr. Rose expected him. It would seem to me based on the very charge in the indictment that the very purpose for which he had the gun is relevant so the State can prove in fact he had the weapon on August 8th for the purpose of using it unlawfully.

Defendant also objects to the admission of testimony concerning a second incident that occurred in an Irvington schoolyard one to one-and-a-half weeks before the shooting of Officer Garaffa. Rose's friend Nicholas Silva testified that on the day in question he, Paul Palermo, and defendant intended to confront one Coley Hunter, whom Silva described as "* * * a black guy that I had trouble with and Teddy had trouble with and my brother had trouble with." Silva testified that when he, Palermo, and Rose left their car to walk to the schoolyard, in order to find Hunter, defendant removed his sawed-off shotgun from the trunk. He placed it in his right pants pocket, which had a hole in it, so the shotgun "just went down his leg." According to Silva's testimony, he told defendant to put the gun

away. Defendant replied, "Fuck it, I don't give a shit." The trial court permitted Silva to testify about Rose's statement to him, overruling defense counsel's objection that the comment was irrelevant.

The State argues that the testimony concerning both incidents is material to the charge that defendant possessed the shotgun on August Eighth with a purpose to use it unlawfully. Primarily, however, the State asserts that the testimony was admissible under Evidence Rule 55 to establish intent and absence of mistake or accident. Referring to defense counsel's opening statement*fn5 as putting in issue defendant's state of mind when he shot Officer Garaffa, the State argues that the disputed testimony was offered to establish "the requisite mens rea essential to convictions for purposeful or knowing murder * * *."

Defendant challenges the admission of this testimony on several grounds. He contends that the charge of possession of the shotgun for an unlawful purpose was not contested, citing concessions made by defense counsel in his opening statement.*fn6 In addition, he cites the trial court's charge to the jury on the count charging possession of the shotgun with an unlawful purpose. Defendant asserts that the charge characterized this count as "inseparable" from the shooting itself, and permitted the jury to find that proof of the shooting also constituted proof of defendant's unlawful purpose, thereby obviating the need for

evidence of unrelated events to prove defendant's unlawful purpose. Defendant also challenges the admissibility of this testimony under Evidence Rule 55, citing State v. Soney, 177 N.J. Super. 47, 59 (App.Div.1980), certif. denied, 87 N.J. 313 (1981), for the proposition that evidence of commission of a "crime or civil wrong on a specified occasion [is inadmissible] to show a disposition to engage in such conduct at another time." Defendant also contends that the testimony should have been excluded under Evidence Rule 4 because any probative value that it possessed was outweighed by the risk that its admissibility would "create substantial danger of undue prejudice or of confusing the issues or of misleading the jury." Finally, defendant claims reversible error because of the trial court's failure to instruct the jury concerning the limited purpose for which the evidence was admitted. Evid.R. 6.

We agree that the testimony concerning defendant's reason for purchasing the shotgun as well as the testimony describing his conversation with Nicholas Silva on the way to the schoolyard were inadmissible to prove that on August 8, 1984, defendant possessed the shotgun with the purpose to use it unlawfully. We held in State v. Harmon, 104 N.J. 189 (1986), that a violation of N.J.S.A. 2C:39-4a "requires proof not only that the accused intended to use the weapon, but that he intended to use it to accomplish a criminal purpose." Id. at 203. In the absence of a proffer by the State of an intention to offer evidence that defendant's unlawful purpose in possessing the weapon on August Eighth was related to his "problems" with blacks or to his hostility toward Coley Hunter, we find no relevance whatsoever in the testimony at issue to the charge that on the date in question defendant possessed the shotgun for an unlawful purpose.

Although it is a close question, we find the testimony somewhat relevant to the issue of defendant's state of mind at the time of shooting and thus admissible under the criteria set forth in Evidence Rule 55 as evidence of "intent" or "absence

of mistake or accident." We agree with the State's contention that it was obligated to prove defendant's state of mind, and that defense counsel's opening could fairly be construed as contesting that the shooting was knowing or purposeful. Supra at 487 n. 5. Defendant's request at the close of the guilt phase for a charge of aggravated manslaughter lends support to the State's contention. We view the testimony concerning the schoolyard incident, which suggested defendant's willingness to use the shotgun offensively against Coley Hunter, to be somewhat probative on the question whether defendant's shooting of Officer Garaffa was purposeful or accidental. We reach the same conclusion, but with greater reservation because the relevance is more attenuated, about the explanation offered by defendant to Gordon Seale when he purchased the shotgun. That testimony perhaps suggested that defendant was inclined to use the shotgun offensively against others; hence, although inadmissible to prove that he shot Officer Garaffa, it was slightly probative on the question whether the shooting was purposeful or accidental.

Our articulation of the rationale concerning the possible grounds for admission of this evidence underscores the necessity for according some measure of discretion to trial courts in ruling on the admissibility of evidence that may be both material and inflammatory. In our view, the preferred disposition would have been to admit the evidence of the schoolyard conversation, but exclude the conversation with Gordon Seale under Evidence Rule 4 because of its limited relevance and its capacity to prejudice the jury. Nevertheless, because the evidence of guilt was overwhelming, we consider the admission of the testimony concerning defendant's conversation with Seale, in the guilt phase, to be harmless error, and not clearly capable of producing an unjust result. R. 2:10-2.

Finally, we fully agree with defendant's contention, conceded by the State, that the trial court's failure to instruct the jury concerning the limited purpose for which this evidence

was admitted, Evid.R. 6, constituted error. Unquestionably, the jury should have been told that the evidence was to be considered only on the question whether the State had sustained its burden of proof that the shooting was knowing or purposeful. In view of the substantial evidence of defendant's guilt, we do not find that the court's failure to give this limiting instruction constituted reversible error in the guilt phase of the trial. We discuss below the effect of the trial court's omission during the penalty phase to afford the jury a limiting instruction concerning evidence of prior acts of defendant that was elicited during the penalty phase. Infra at 503-509.

Accordingly, we affirm defendant's convictions for murder and for the related offenses.*fn7

D. Penalty Phase Issues*fn8

1. Admission of Prejudicial Evidence of Defendant's Past Conduct During Cross-Examination of Expert and Character Witnesses, Combined with Trial Court's Failure to Give a Limiting Instruction, Deprived Defendant of a Capital Sentencing Hearing.

At the commencement of the penalty phase of the case, the trial court granted the State's motion to admit as evidence in the penalty phase all of the State's testimony and evidence admitted during the guilt phase. The State called no other witnesses and offered no other evidence. Thus, the penalty phase of the trial, aside from the opening and closing arguments of counsel, was devoted exclusively to the direct testimony

and cross-examination of expert and lay witnesses produced by the defendant.

Defendant contends that in the course of the State's cross-examination of its witnesses, evidence of defendant's past conduct was improperly elicited by the prosecutor. Defendant asserts that in some instances the cross-examination went far beyond the scope of direct testimony; in other instances the cross-examination is challenged as violative of Evidence Rule 47; in still other instances defendant's contention is that the questions posed by the prosecutor unfairly or inaccurately characterized past events or improperly referred to events not otherwise proved by evidence in the record. Some of defendant's contentions in this regard also pertain to the charge of prosecutorial misconduct. Infra at 513-519. Complementary to these contentions is defendant's argument that the admission of the evidence of defendant's past conduct in the penalty phase obligated the trial court to give the jury a limiting instruction, Evid.R. 6, so that the jury would not consider this evidence as supplementing the aggravating factors proved by the State. Infra at 503-509. Without such a limiting instruction, defendant argues, the jury's verdict in the penalty phase may have been influenced by its misunderstanding of the limited relevance of the evidence of defendant's past conduct.

Before discussing the applicable legal principles, we summarize those portions of the testimony of the expert and character witnesses challenged by defendant.

Expert Testimony

Dr. Leah Lapidus, a professor of clinical psychology at Columbia University, was defendant's first expert witness. She based her opinion of defendant's mental condition on the results of a battery of standardized psychological tests, interviews with defendant, records from the Irvington Mental Health Clinic, accounts of defendant's relationships with women and of his visit with his mother in Indiana a few months prior to the shooting, and details regarding the shooting of Officer Garaffa.

Dr. Lapidus testified that the results of defendant's psychological testing were consistent with "serious mental disturbance," and that defendant exhibited a "borderline psychotic pattern." She stated that in a stressful situation defendant would experience "massive confusion, commotion," that his thinking would become "confused and chaotic," and that he functioned with "unrealistic panic and impulsivity under stress * * *." She testified in a generalized fashion that he had previously exhibited a "panic or rage type" reaction in his relationships with women, particularly when he felt insecure or anticipated the relationship would terminate. In such situations Dr. Lapidus said Rose would panic and "strike out" to prevent abandonment. She testified that the shooting of Officer Garaffa was consistent with his behavior patterns, describing it as a reaction to "overwhelming panic, loss of control, [and] sense of catastrophe." She testified that at the time of the shooting defendant was under the influence of "extreme emotional disturbance" and that his ability to conform to the requirements of the law was "severely impaired."

During cross-examination Dr. Lapidus was asked by the prosecutor to reconcile the schoolyard incident, in which Rose refused to accede to his friend's suggestion that he put the shotgun away, with her testimony describing Rose as "suggestible" and eager to please. In response, Dr. Lapidus explained that in her opinion Rose's recent visit to Indiana to visit his mother, who had abandoned him, was a "catastrophe" that left Rose with a feeling of "desperation." To counter the witness's testimony that Rose's actions were prompted by his unsuccessful attempt to establish a relationship with his mother, the prosecutor questioned Dr. Lapidus about defendant's conduct prior to visiting his mother:

Q. What do you think about the fact that he 3 years before that or at least 2 years before that Indiana catastrophe, that he punched a girl in the face because she didn't want to do it his way? Doesn't that sort of show that he had this attitude long before he went to Indiana? Did you know that? Did you

know that fact that he had punched one of his girlfriends in the face?*fn9 (Emphasis added.)

A. I read a report about that but as I recall it wasn't about doing something exactly his way but it was about rejection, again that theme.

Q. Why was he being rejected by the girl and by all his girlfriends?

MR. HOCHMAN: Objection, your Honor.

Q. If you know?

THE COURT: If she knows she could answer the question, Mr. Hochman.

A. As characteristic with this kind of borderline pathology, there's an instability in the emotional relationships so that attachments are fine to start with and then they get so intense that he develops a kind of paranoid kind of jealousy. It becomes panicked, they're not going to stay attached to him, he's going to lose them as he lost his mother and his identity and the rest of it and so that then he becomes too sticky and becomes paranoid and jealous and then he drives them away and gets the rejection that he's so terrified about and then feels a helpless out of control frustration that explodes at times in an aggressive reaction.

Q. Do you know how the intensive situations develop in the relationship? I mean, you said you read the reports of these girlfriends?

A. Right, and I interviewed one girlfriend.

Q. Doesn't it all start because he's beating them up, he's pulling their hairs and dragging them, trying to run them over with the car, punching them in the face, throwing ash trays at them?

A. No that's --

Q. Taking them to a motel and locking them in a room and beating them up and deserting them there. Don't you think that would have something to do with the fact that the relationship is going to be terminated?

A. That's not the way the sequence or the way any of the reports -- I didn't come across one single report that suggested he just sort of out of the blue without any sense of threat and that he would be losing them that --

Q. Do you have reports or statements from these women? Were they given to you?

A. I read those reports and I interviewed one girlfriend who described the pattern that was consistent with the reports that the relationship goes along fine for a while and then as he gets very intensely attached, he begins to feel very vulnerable and insecure and he's going to lose it all and then he puts so much pressure on them under time that then they feel like withdrawing --

Q. They feel like withdrawing because they're getting beat up regularly, right? That's not in the reports you read?

A. I never saw anything that suggested that he went around just beating up girlfriends. I have worked with people who batter but he doesn't --

Q. I don't care about other cases. This case, did you read about the girl who's [ sic ] hair he pulled as he dragged her down the street? Did you read that one?

A. I think I read something like that.

Q. Did you read [about the one] that got punched in the face? Did you read that one?

A. I believe so.

Q. Okay.

Did you read [about the one] that got an ash tray thrown at her which resulted in a big bruise in her side, do you remember that one?

A. I vaguely remember something about an ash tray but each --

Q. Do you remember the one he took her car from her and tried to run her over with the car, do you remember that one?

A. I read that.

Q. Okay.

Now, do you think that maybe that's why these girls want to leave him?

A. I think it's chicken and egg, I think it's the dependency gets so intense that then they start to leave and then he feels desperate and he drives them away further and then comes the violence, not the other way around.

The prosecutor also cross-examined Dr. Lapidus concerning her knowledge of other incidents involving defendant's prior conduct. She was questioned about defendant's statement that he purchased the shotgun because he was "having trouble with some niggers in New Jersey;" she was asked about "a knife episode * * * where he had the fight with the black kids in Irvington;" and she was asked about the schoolyard incident in which defendant, carrying the shotgun in his trousers, went with his friends to look for Coley Hunter. Presumably, these questions were intended to challenge Dr. Lapidus's testimony linking defendant's aggression to situations involving stress and panic.

During his cross-examination of Dr. Lapidus, the prosecutor ascertained that she had previously reviewed the statement of Nicholas Silva as part of the records on which her opinion of defendant's mental condition was based. The prosecutor then asked Dr. Lapidus to read from Silva's statement aloud to the

jury, although a comment by defendant described in the statement had been ruled inadmissible by the trial court, during the guilt phase of the case, on the two occasions that the prosecutor had attempted to elicit evidence concerning that comment.*fn10 Without objection, Dr. Lapidus read aloud from Silva's statement:

A. "Teddy said I have to show Paul something. I got Paul. We walked over to Teddy's car. It was parked on 40th Street in front of his house. Teddy took the shotgun out of the trunk and put it in a blanket. Teddy put the gun in the back seat next to Paul. We drove to 38th Street and parked the car. Teddy got out of the car and put the gun down his pants. I told him someone was going to see it and he said fuck it, I don't give a shit.

We walked over to the driveway by the school and waited for the black kids to come out. While we were waiting there Teddy said I wish we had a stolen car or a van so we could take Coley for a ride."

Q. Coley?

A. Coley for a ride.

Q. He's the black kid, right?

A. Is it? I guess.

"We waited for about 10 minutes and Coley's younger brother came out with three of his friends and walked passed us.

"QUESTION: Did any of you say anything to the black youths?

ANSWER: No, but after they walked passed us Teddy pulled out the gun and pointed at them and said I should blow their fucking heads off. I told

Teddy to put the gun away, we are out on Springfield Avenue. (Emphasis added.)

QUESTION: Did any of the black kids see Teddy with the gun?

A. No, their backs were turned, they were walking away from us. After that we walked back to the car and Teddy put the gun under the front seat and Teddy dropped us off."

Although Dr. Lapidus stated that she had not reviewed defendant's army records, the prosecutor questioned her briefly about his "short" period of military service and whether she was aware that defendant had been "AWOL" on several occasions.

Dr. Robert A. Fox, Jr., a professor of clinical psychiatry at New York University Medical Center, also testified as an expert witness. He interviewed defendant on four separate occasions. He also reviewed the police reports, witness statements, the records concerning Rose from the Irvington Mental Health Center, and statements from two of defendant's former "girlfriends." He testified that he was aware that Rose had difficulty controlling his anger, and had on occasions struck women that he had been seeing socially. He also testified that defendant's unsuccessful attempt at a reunion with his mother in Indiana a few months before the shooting had a significant and adverse effect on defendant's emotional condition.

He diagnosed Rose as suffering from chronic depression as well as a borderline personality disorder characterized by instability in personal relationships. He testified that defendant's prior tendencies toward depression and violence were magnified after his failed visit with his mother. Dr. Fox expressed the opinion that at the time of the shooting defendant "was under the influence of extreme mental or emotional disturbance" and that his capacity "to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect." See N.J.S.A. 2C:11-3c(5)(a), (d).

During cross-examination, Dr. Fox disclaimed any familiarity with defendant's school records, army record, or jail record, but acknowledged speaking with defendant concerning his incarceration.

Dr. Fox responded in the negative when asked by the prosecutor if defendant had told him anything about extorting meals from other inmates at jail, or about "social relationships" or friendships with other prisoners. Although Dr. Fox denied any knowledge of defendant's disciplinary problems in high school, he was cross-examined by the prosecutor about the "significance" of defendant having been suspended in high school on different occasions for assaulting other students, selling firecrackers, intoxication, and profanity to a teacher. Dr. Fox was asked about and acknowledged defendant's brief army serviceand two occasions on which he was AWOL.

The prosecutor challenged Dr. Fox's testimony that defendant's unsuccessful visit with his mother in Indiana significantly affected defendant's behavior.

[Q.] How about the fact of his treatment of his "girlfriends"? The history of personal violence on behalf of Teddy Rose goes back way before his visit to Indiana, doesn't it?

A. Way back.

Q. Couple of years back?

A. About 4 years.

Q. You're familiar with the fact over that period of time he would punch the girl in the nose, punched her in the face, right?

A. Yes, all those things are well detailed.

Q. He tried to run another one over with her own car?

A. Chased her with a car, yes.

Q. Dragged one by the hair and dragged her down the street?

A. I think that was the same one, the same one he chased with the car I thought.

Q. Well, how about the one where he threw something from the kitchen? It was an ash tray or something, hit her in the body and she had a big bruise she said for a while after that, remember that one?

A. Yes.

Q. That was all before the Indiana visit, right?

A. That was in 81 or 82.

Q. How about Malamut, Sue Malamut?

A. Sue Malamut is one of the girlfriend's name.

Q. Remember the incident there where she was taken to a motel by him and she was mistreated at the motel and then abandoned at the motel on Route 22 in Union and she had to call her girlfriend to come and get her because he left with the car?

A. Right.

Q. All these incidents occurred well before the visit to Indiana?

A. Well before.

Q. These all show this person is somewhat of a violent person way before Indiana?

A. Yes, he was a violent person, oh yes.

Q. What was the change in his life that he told you he had when he came back from Indiana? What changed? He was already thrown out of school, he was already thrown out of the Army, he was beating up the girls. He was already getting fired from jobs. What changed, what's the difference because he has an unfortunate meeting with his natural mother?

Dr. Fox was also questioned by the prosecutor about several of the incidents on which Dr. Lapidus was interrogated, including defendant's reason for buying the shotgun, and the schoolyard incident where defendant ...

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