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State v. Gerald

Decided: October 25, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WALTER M. GERALD, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division (Atlantic County).

For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, O'Hern, Pollock, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Clifford, J. O'Hern, J., concurring. Justice Garibaldi joins in this opinion. Handler, J., concurring in part and dissenting in part. O'Hern, Garibaldi and Handler, JJ., concurring in the result.

Clifford

[113 NJ Page 47] Defendant was convicted of numerous offenses, including capital murder, surrounding an incident that resulted in the death of Paul Matusz. On the capital murder conviction defendant was sentenced to death, wherefore his appeal to this Court is as of right under Rule 2:2-1(a)(3). We affirm all of the judgments of conviction except the one for capital murder as charged in the thirteenth count of the indictment. On the capital murder charge the State acknowledges the necessity for a new penalty-phase proceeding, for the reasons expressed in the course of this opinion. Beyond that we have determined that defendant is entitled to a new trial on the question of guilt on that charge.

I

A

The evidence produced at trial fully supported the version of the facts that follows.

John Matusz, eighty-nine years old, lived with his son Paul, age fifty-five, at the Matusz home in Pleasantville, in Atlantic County. Their home was located on a dark wooded corner in a secluded area. The elder Matusz, disabled because of a stroke, could walk only with the aid of a cane. Inasmuch as neither John nor Paul was self-sufficient, two of John's daughters, Helena Gaw and Lottie Wilson, took turns staying in the home, cooking, cleaning, and caring for both men.

On Friday, August 13, 1982, Lottie Wilson was staying at her father's home. At approximately 6:30 p.m., John Matusz retired for the evening to his first floor bedroom. Paul Matusz went to his upstairs bedroom where he watched television and later retired. In the living room Mrs. Wilson watched a baseball game on a new color television set, which sat atop an old console television set that no longer functioned. At approximately 9:30 she went to bed in her father's bedroom. Soon thereafter she heard a noise in the other first floor bedroom and went to investigate. As she opened the door to that room, she was struck in the eye by someone standing behind the door. Mrs. Wilson was then attacked by two black males, one of whom she later described as husky, tall, with a round face and a mustache or beard. One of the intruders had a knife or blade, although Mrs. Wilson was unable to recall which of the two it was. She was thrown to the floor, punched and kicked in the face, and then hurled into the bathroom. Mrs. Wilson recalled lying on the bathroom floor being stomped on a number of times about the face and chest by someone wearing a white-soled shoe. This man told her, "Shut up or I'll kill you." When he asked where the money was kept, she revealed the location of her purse. When her brother Paul heard Mrs. Wilson's screams, he came downstairs to investigate, whereupon

two black males attacked him at the foot of the staircase. One of the men struck Paul in the face with a television set.

Shortly after the foregoing events, and not knowing whether the intruders were still in the house, Mrs. Wilson arose and went to the kitchen, where she telephoned her sister and the local police. Then Mrs. Wilson entered the living room where she saw her brother Paul lying on the floor with the old console TV overturned on his face. After succeeding in lifting the set from his face and turning it upright, Mrs. Wilson found Paul's face cold to her touch. John Matusz had been beaten and dragged from his bed into the hallway. He was leaning against the wall, bleeding profusely, still clutching the top portion of his cane, which was broken in half. Missing were Mrs. Wilson's purse with about $60 in cash, the new color television set, and an old black and white portable television set from Paul's upstairs bedroom.

Officer John Calcerano and Detective Henry Frank of the Pleasantville Police Department arrived at the Matusz home within minutes of Mrs. Wilson's telephone call. Although hysterical, Mrs. Wilson described the perpetrators and the events generally as recited above. Mrs. Wilson's face was swollen and beaten. Paul Matusz was unconscious and bleeding from the nose and mouth. On checking for signs of life, Detective Frank found that Paul was not breathing and had no pulse. Frank cleared Paul's air passage and began cardio-pulmonary resuscitation. A third officer who arrived soon afterwards found Paul's pulse to be very weak. The officer continued the efforts to revive the victim. In the meantime Officer Calcerano applied bandages to John's wounds. All three victims were then taken to the hospital by ambulance. Other law-enforcement personnel arrived on the scene. The house was dusted for fingerprints none of which, as it was later determined, matched any of the defendants' prints. The officers concluded that the attackers' point of entry was a window in the first-floor bedroom in which Mrs. Wilson first was assaulted. The wood-framed

screen had been pried off from the outside to permit access.

Paul Matusz, who suffered two fractured ribs, a broken nose, and multiple contusions of the face, sides of the head and brain resulting from blows to the head, died in the emergency room at Shore Memorial Hospital at about 10:48 p.m. He did not regain consciousness before death, and therefore made no statement regarding the identity of his assailant or assailants. When Dr. Donald Jason, Atlantic County Medical Examiner, examined Paul Matusz that night at the morgue, he noticed bruises across his face in three patterns. On Paul's forehead there were four imprints of a circular pattern, consisting of four concentric circles. Second, there was a herringbone-type pattern on the forehead next to the circular patterns. On the victim's face, below the right eye and to the left of the nose, there was a third pattern bruise, consisting of multiple rectangles. These bruises were photographed the next day at the autopsy, and according to Dr. Jason and various police witnesses the pictures accurately depicted the victim's appearance. Dr. Jason also observed a patterned bruise, consisting of four concentric circles, on Mrs. Wilson's face.

According to Dr. Jason, Paul's death was caused by blunt-force injuries to the head, specifically, cerebral concussions and a fractured nose, inflicted by blows of the fists and feet. These injuries resulted, respectively, in contusions and swelling of the brain, and aspiration of blood into the airway and lungs. Together, these conditions produced Paul's death. Because no blood was found in the victim's stomach, Dr. Jason concluded that Paul's nose was fractured after he lost consciousness. Had he been conscious, his gag reflex would have forced him to swallow the blood rather than inhale it into his lungs. Dr. Jason observed on Paul's nose a discernible sneaker print that could have been produced by the same force as caused the broken nose. He acknowledged as well that the console television set falling on Paul's face could "possibly" have fractured

his nose, thereby resulting in the aspiration of blood as he lay unconscious on the floor.

Concerning the blows to the head, Dr. Jason concluded that a single first blow could have fractured the nose and simultaneously caused unconsciousness, but he pointed out that at least some of the blows to the head, especially on the left side where the most severe contusions of the head and brain were found, were delivered after Paul was unconscious. Finally, Dr. Jason determined that a single blow could not have caused the brain injury or the other injuries that he observed. Rather, the doctor surmised that the sum of the numerous blows and resultant various injuries caused the death; that it was medically impossible for him to differentiate the "fatal" blow from all others, and that this would have been so even had he watched the beating take place; and that while some of the blows might not have contributed to death, he could not specifically identify which ones had and which had not.

John Matusz suffered bruises and lacerations of the face from blunt-force injuries. There were indications that he had probably been beaten with a lamp. Those injuries required continued hospital care and convalescence treatment. He died on October 3, 1982, without ever having returned home. Lottie Wilson suffered a broken nose, abrasions, lacerations and contusions of the face, neck, and chest due to several blows, as well as smaller contusions on the rest of her body. She was hospitalized until August 25, 1982; her jaws were wired together for six weeks following the attack.

B

On August 16, 1982, Detective Frank received a call at home from an unknown informant who said that Walter Gerald, Jody Reese, and Nelson Drakeford had committed the Matusz murder. The informant reported that Gerald had offered to sell the informant stolen television sets and had told the informant how easy the burglary had been. The informant further told Detective

Frank where Gerald lived and the type of car he drove. Finally, the informant stated that he wanted to be paid. Detective Frank told him to call Crime Stoppers, an organization that pays for information leading to the arrest and indictment of criminals.

Detective Frank immediately went to the Pleasantville Police Department. While he was there, the follow-up call came in from Crime Stoppers, repeating the information summarized above and providing additional information. The police learned that there were two outstanding arrest warrants for Gerald, both for failure to appear in municipal court on traffic tickets.

That same afternoon Detective Frank and Investigator McIntyre of the Atlantic County Prosecutor's Office drove in an unmarked car to Gerald's home, where over a period of about one hour they observed Gerald sitting on his car, talking with his friends, and driving to and from a nearby store. As Gerald, who knew Detective Frank, drove by, he waved at the detective. The informant's description of the car matched Gerald's automobile. The authorities having decided to arrest Gerald on the outstanding warrants, Detective Frank and Investigator Raymond Bolis of the Prosecutor's Office executed the warrants by arresting Gerald at his home later that evening. At the time of the arrest Frank informed Gerald of the outstanding warrants, and also indicated that the police wanted to speak with him in connection with another matter. The police also questioned Drakeford and Reese, whom they released after the two denied any involvement. Both men indicated, however, that they had been importuned by Gerald, John Bland, and Eddie Walker to participate in the robbery.

After arresting Gerald, Detective Frank and Investigator Bolis drove him to police headquarters where Gerald was held in lieu of $85.00 cash bail on the arrest warrants. Detective Frank informed Gerald of his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966)), whereupon Gerald indicated that he understood

those rights. He signed a waiver, witnessed by Detective Frank and Investigator Bolis, and agreed to talk to the police.

Although the discussion initially focused on the outstanding traffic tickets, Detective Frank eventually told Gerald about the Matusz murder and that he was a suspect. Gerald denied any involvement, offered two different stories about his whereabouts on the evening of August Thirteenth, and said he wanted to cooperate. The officers told him they did not believe his story. Gerald continued to deny his involvement in the burglary and murder for the next two hours while the police persisted in their questioning. During this time Gerald was allowed to go the bathroom (accompanied by a police officer), eat dinner, and drink soda; he was not free to leave, however, on the theory that he was under arrest for the contempt-of-court warrants and was awaiting admission to bail. During this time, according to the police officers, Gerald showed no signs of intoxication or influence of drugs. He neither asked for an attorney nor requested that questioning cease. During "casual conversation" with Investigator Bolis, Gerald indicated that he did not use drugs because he was an athlete and harbored a concern that drugs would ruin his body.

After approximately two hours of questioning, Gerald agreed to submit to a polygraph examination, whereupon Bolis left the room to find a qualified examiner. During Bolis's absence Gerald sat with his legs extended and crossed in such a way that Detective Frank was able to see the tread design on the sole of the suspect's sneakers. Part of the tread consisted of a design similar to the concentric circular bruises found on Paul Matusz's forehead. When Frank asked if he could take a closer look at the sneakers, Gerald agreed and took them off. The detective put the sneakers on the desk, and both he and Gerald took a close look at them. There were a few red spots on the top of the sneakers. When asked what the red spots were, Gerald said that he did not know. Detective Frank pointed out the similarity between the tread design and the bruises on Paul Matusz's forehead, face, and nose, Gerald replied, "Well, I

wonder how many pair of sneakers like that Converse made." Detective Frank responded that Converse probably made thousands. Investigator Martella brought into the room a set of "contact sheets" (sheets containing negative-size prints of photographs) depicting the patterned bruises on Paul Matusz. Martella gave Frank and the defendant his magnifying glass, and all three examined and compared the photographs with the sneakers. Gerald did so with great interest. Detective Frank then told Gerald that he was going to keep the sneakers as evidence.

Investigator Bolis returned to the detective bureau. George Dix, the town's mayor and a retired New Jersey State Trooper, had agreed to administer the polygraph examination. Dix, who was in the municipal building for a town council meeting, initially did not want to test Gerald because he had known him for years and had been Gerald's football coach. Dix's daughter and Gerald were friends and had attended high school together, and Dix saw Gerald every Saturday at football games. As recently as a year before, Dix had written Gerald a letter of recommendation. As he was taking Gerald to Mayor Dix for the polygraph exam, Bolis noticed that Gerald was not wearing any shoes. Gerald indicated that some new evidence had been found, and that the pattern on his sneakers matched the bruises on the deceased.

Prior to administering the polygraph examination, Mayor Dix, who admitted that he hoped Gerald would "pass," stressed that Gerald did not have to submit to the exam, and in fact told Gerald that if he was in any way involved, he should not take the test. Gerald said he was not involved and could pass the test. Dix gave Gerald a rights form, which he read and signed. The test lasted about ninety minutes. When it was completed, Dix informed the detectives, who were awaiting the results, that in his opinion Gerald was not being truthful in denying involvement in the burglary-murder. Detective Frank and Mayor Dix informed Gerald of the results of the polygraph, and Dix told Gerald that if he did not commit the murder, he had

better say who did. Gerald responded by saying he wanted to "straighten the whole thing out," and asked to speak with Chief of Police Ralph Peterson, who, it happened, was also was in the building for the town council meeting.

Peterson and Gerald had been friends since Gerald was nine or ten years old. They had known each other primarily through a youth athletic organization started by Peterson and known as "Pete's Boys" (now Pleasantville Police Athletic League) to help keep Pleasantville youngsters out of trouble. Chief Peterson's family also saw the Gerald family socially.

Detective Frank told Chief Peterson that Gerald wanted to speak with him and that Gerald was involved in the Matusz matter. Chief Peterson and Gerald went into an office alone, where Gerald said that he had driven by Chief Peterson's house a couple of times since the crime and had tried to tell him what happened, but had lost his nerve. Chief Peterson recalled having seen Gerald drive by his home a couple of afternoons previously, when both men waved. Chief Peterson asked Gerald whether he was involved, and Gerald said, "I was there." Realizing that the suspect was about to confess, the Chief stopped Gerald and asked Mayor Dix to come into the office as a witness. Once Dix arrived, Chief Peterson advised Gerald of his Miranda rights, whereupon Gerald gave a statement.

Gerald said that he, Eddie Walker, and John Bland had entered the Matusz house, intending to steal a television set that they previously had seen from outside the house. Gerald "had" the woman, and admitted striking her a couple of times. Walker had the younger man (Paul), while Bland aroused the old man (John) from bed. The younger man was giving Walker a lot of trouble, so Gerald and Bland went to assist Walker. They beat the younger man with their hands, then left him alone. Gerald went back to the woman, and Bland returned to the old man. Bland beat the old man with a lamp and a cane, or both. Gerald said that Walker "just went off" on the younger man, hitting him with a trophy, punching him, and

throwing a television set on his face. Gerald also stated that on his way out of the house, he stepped on the younger man. Chief Peterson asked, "What do you mean, you stepped on him? Did you stomp the man?" After hesitating, Gerald replied that he did step on him, did put his foot in the man's face, but did not stomp on him. He then began telling the Chief where the television sets were, but Peterson, by now very upset, did not want to hear any more. He told Gerald, "I'm going to bring the other fellows [detectives] in. You cooperate with them and tell them all your involvement."

The conversation between the Chief and Gerald then continued on a personal level. Gerald, who was remorseful -- crying and sobbing during the confession -- said he did not know what had gotten into him. During the discussion the Chief noticed that Gerald's eyes looked "funny," and he appeared to be high and tired. Gerald said that he was tired, that he had not slept since the crime, that he had been high ever since, and that he had taken drugs earlier that day, August sixteenth.

Chief Peterson turned Gerald over to Detective Frank and Investigator Bolis, assuring them that Gerald would direct them to the location of the television sets. The Chief also informed Frank, who was waiting outside, that Gerald needed to use the bathroom. Gerald told Frank, who accompanied him to the bathroom: "I can see by the sneaker prints that you have me. When we get back in there, I'll tell you what happened." Investigator Bolis indicated that they wanted a taped statement. Gerald said he would answer all their questions but would not give a taped statement until he had retained an attorney. He said that once he had retained an attorney, he would tell the attorney of his desire to cooperate and give a statement. Bolis and Frank offered to cease the questioning, but Gerald said no, that he would feel better talking about it. The testimony at trial and the suppression hearings is in conflict on whether Gerald was then advised of his Miranda rights a fourth time. He did, at that point, give a similar but more detailed oral account of the burglary. Gerald again

admitted to assisting in beating Paul Matusz and accidentally stepping on him a couple of times while running around the house.

Based on Gerald's confession, Pleasantville police and investigators from the Prosecutor's Office arrested John Bland, whose statement recounted the same events, with but minor variations. Bland also reported that one day after the murder, Gerald told Walker and Bland that he thought he had killed Paul Matusz because he had "stomped him real bad." Eddie Walker, who had turned sixteen a few days before the murder, fled to Canada and Florida. He surrendered to the Pleasantville Police on October 18, 1982. Walker's pretrial statement did not implicate defendant.

II

On December 16, 1982, an Atlantic County Grand Jury returned an indictment charging Gerald with conspiracy to commit second-degree burglary, contrary to the provisions of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count one); second-degree burglary, contrary to the provisions of N.J.S.A. 2C:18-2 (count two); conspiracy to rob John Matusz, Paul Matusz, and Lottie Wilson, contrary to the provisions of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); three counts of second-degree robbery of the same victims, contrary to the provisions of N.J.S.A. 2C:15-1(a)(1) (counts four, five, and six); three counts of second-degree aggravated assault on the same victims, contrary to the provisions of N.J.S.A. 2C:12-1(b)(1) (counts seven, eight, and nine); felony murder of Paul Matusz, contrary to the provisions of N.J.S.A. 2C:11-3(a)(3) (count eleven); and knowing or purposeful murder of Paul Matusz, contrary to the provisions of N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2) (count thirteen). The indictment also charged John Bland with the same crimes. Jurisdiction over Edward Walker, who was a juvenile, was waived from juvenile court to Superior Court, and he too was charged with those same crimes.

The State gave timely written notice that it would seek to prove three aggravating factors under N.J.S.A. 2C:11-3(c): first, defendant purposefully or knowingly created a grave risk of death to another person in addition to the victim during the commission of the murder ((4)(b)); second, the murder was outrageously or wantonly vile, horrible, or inhuman ((4)(c)); and third, the offense was committed during the commission of, or attempt to commit, or flight after attempt to commit or commission of robbery, sexual assault, arson, burglary, or kidnapping (felony-murder) ((4)(g)), thus making this a capital case.

Several pretrial motions were made in late 1983. First, the court denied a motion by Gerald and Bland to close the pretrial hearings from press coverage and the public in order to prevent prospective jurors from being tainted by exposure to inadmissible evidence through the press.

Gerald also filed motions challenging the legality of his arrest and seeking to suppress both his oral statements and evidence seized while he was in custody. Bland joined in the suppression motions. Those hearings were conducted over a two-month period. The State called thirteen witnesses, primarily police officers, whose recitations of the events corresponded with the version described above. Gerald and Bland testified as well.

Gerald said that when he was arrested on August 16, 1982, there was no discussion of bail for the traffic tickets. He claimed that during the interrogation, Investigator Bolis constantly threatened him and called him foul names. He also claimed that he was under the influence of alcohol and drugs during the questioning, and that he had asked the officers if he could rest, or come back when he was "normal," but they refused. Gerald contended that he had been taking drugs (cocaine and heroin) and drinking all day (three to four pints of Southern Comfort and three to four six-, eight-, or twelve-packs of beer). He also related that he had a beer in his hand when he was arrested at his front door. On cross-examination,

Gerald admitted that he had been taking that quantity of drugs and alcohol for about a month, but claimed that he was not accustomed to it and that he had stumbled a lot. He conceded that he was in control of his faculties to a certain extent, that he was capable of answering questions to a certain extent, that he knew he could ask for an attorney (he later said that he did make such a request), and that he never asked that questioning cease.

Concerning the waiver of his rights, Gerald said that Detective Frank threw the Miranda card at him, told him to sign it, and indicated that if he told him the truth, he could go home. Gerald said that he did not read the card. Moreover, he claimed to have asked for an attorney more than once, but that Detective Frank told him that if Gerald told him what he wanted to know, he would not need a lawyer. Gerald did not recall being informed of his rights by Mayor Dix or Chief Peterson.

In arguing against Gerald's and Bland's various motions, the State asserted that Gerald's arrest and detention were valid under State v. Bruzzese, 94 N.J. 210 (1983), cert. den., 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984), and that defendant's sneakers had been properly seized as incident to his arrest. The State further contended that Gerald was mentally alert, was informed of his rights and was cognizant of them, and voluntarily waived those rights. The defense responded that the arrest was illegal because of the absence of probable cause, wherefore the fruits of the arrest should be suppressed. Further, Gerald contended that ill treatment by the police, coupled with defendant's intoxication, rendered the confession invalid as involuntary.

The trial court ruled against both Gerald and Bland on all motions. The court found that Gerald's arrest fell well within the Bruzzese ruling and further determined that defendant had been informed of his rights and voluntarily waived them. Although the court acknowledged that it might appear that there had been some overreaching by the police when Chief Peterson

told Gerald that it would be best to cooperate and to tell the detectives everything that Gerald had told the Chief, the court ruled that the totality of circumstances demonstrated that Gerald's free will had not been overborne, especially because immediately after giving a statement, Gerald refused to make one that would be taped. The court further determined that defendant's erroneous belief that his oral statement was somehow less damaging than a taped or written statement was irrelevant. In addition, the court found that the defendant never asked for an attorney. Finally, the court concluded that the evidence showed that Gerald wanted to talk, and that the seizure of the sneakers after police observance of the tread design was authorized as incident to the arrest.

Gerald also moved to strike the death penalty law as unconstitutional on both federal and state grounds; to secure an evidentiary hearing on the issue of disproportionality of sentencing; to have the grand jury consider only the evidence of murder and not of the lesser crimes; to require that the grand jury determine whether the aggravating factors existed; to have an evidentiary hearing for the purpose of determining whether a death-qualified jury is unrepresentative or not impartial (conviction-prone); to obtain separate juries in the guilt and sentencing phases; and to foreclose the prosecution on the grounds that it was selective and in violation of the equal-protection guarantee. The trial court denied all motions.

On March 1, 1984, the trial court accepted a plea arrangement between the State and John Bland. Although the details of the agreement are somewhat unclear, the State promised to recommend a sentence of life imprisonment in return for Bland's guilty plea on the felony murder charge and in consideration of Bland's agreement to testify against Gerald at the latter's trial. On April 2, 1984, Edward Walker entered pleas of guilty to burglary and robbery of the three victims. The State dismissed the balance of the indictment and recommended a thirty-five-year term of imprisonment with a sixteen-year period of parole ineligibility. Walker too agreed to testify

against Gerald. Neither co-defendant had been sentenced at the time of Gerald's trial.

The State offered defendant a recommended term of life imprisonment in return for a guilty plea to felony-murder, which Gerald rejected. During the two-week guilt phase trial, the State called twenty-four witnesses, including both Bland and Walker. Walker testified that Gerald and he beat Paul Matusz, that Gerald knocked Paul unconscious, and that Gerald continued thereafter to strike the victim. According to Walker, when he tried to remove the new color television set in the living room, the old console set on which it sat fell over onto Paul's face. When Walker asked Gerald whether he should pick up the console television, Gerald replied, "leave it there." On cross-examination Walker, whose pretrial statement did not implicate Gerald, admitted that he had lied in that statement because he did not want to "snitch" on Gerald, and because he wanted to exculpate himself. Bland testified that before entering the house, Gerald told Walker, "you don't have to worry about anything physical. I will take care of that." Both Bland and Walker testified that all three had consumed large quantities of alcohol and drugs on the day of the murder.

Both the Medical Examiner and a State Police forensic chemist testified that the patterned bruises on Paul Matusz's face -- the concentric circles -- were consistent with the tread design on the soles of Gerald's sneakers. The forensic chemist further testified that the patterned bruises were inconsistent with the tread design on other sneakers admitted into evidence, belonging to the co-defendants. In addition, the Medical Examiner stated that the bruises could not have been caused by someone simply stepping once on Paul's face; rather, Dr. Jason distinguished four separate footprints, each inflicted with a significant amount of force behind it.

Defendant neither testified nor presented any witnesses, relying solely on cross-examination of the State's witnesses. The trial court denied defendant's motion for dismissal or judgment

of acquittal on the third count -- conspiracy to rob -- and for a judgment of acquittal of purposeful or knowing murder.

The jury found defendant guilty of conspiracy to commit burglary (count one); burglary (count two); conspiracy to commit robbery (count three); three counts of robbery (counts four, five, and six); two counts of aggravated assault on Paul Matusz and Lottie Wilson (counts eight and nine); felony murder (count eleven); and purposeful or knowing murder (count thirteen). It acquitted Gerald on the seventh count, charging an aggravated assault on John Matusz.

At the sentencing phase, in light of the acquittal on the seventh count, the State withdrew aggravating factor (4)(b) (creating a grave risk of death to a person other than the victim), and sought to prove aggravating factors (4)(c) (outrageously and wantonly vile murder), and (4)(g) (murder during a felony, to wit, robbery). The defense sought to establish the following mitigating circumstances: (5)(a) (extreme mental or emotional disturbance); (5)(c) (age); (5)(d) (impairment of capacity to appreciate wrongfulness of conduct or conform conduct to requirements of law); (5)(f) (no significant history of prior criminal activity); and (5)(h) (any other factor that is relevant to the defendant's character or record or to the circumstances of the offense).

The State called two witnesses. Dr. Jason, the Medical Examiner, provided testimony directed at establishing aggravating factor (4)(c), and Investigator Bolis testified to the robbery and confession to establish the felony-murder factor. The court denied a defense motion to strike factor (4)(c).

The defense called six witnesses. One psychiatrist diagnosed Gerald as severely depressed and drug-dependent. A second psychiatrist furnished a diagnosis of severe personality disorder and drug addiction. He also offered the view that Gerald's obsessive preoccupation with the need for drugs either rendered him unable to control his behavior or impaired his control. An anthropology and sociology professor testified about the

"failure syndrome" and correspondent depression and alcohol and drug dependence in poor urban subcultures.

Defendant testified, expressing his sorrow for what had happened to the Matusz family and to his own family. On cross-examination, he admitted that he punched Paul Matusz a few times but denied ever stomping him. He also denied making certain statements to the police. Two of Gerald's sisters testified, describing their family life, the effect that their father's death had had on Gerald, and defendant's use of alcohol and drugs. The court charged the jury that if it found, beyond a reasonable doubt, that any mitigating factor did not outweigh any aggravating factor or factors, the defendant would be sentenced to death. The court also charged the jury that in reaching its verdict it was not to consider any bias, prejudice, or sympathy.

The jury returned a verdict finding both aggravating factors beyond a reasonable doubt. It also determined that Gerald was suffering from extreme mental or emotional disturbance; that his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was impaired; and that he had no significant history of prior criminal activity. The jury did not find that defendant's age was a mitigating factor. Although the verdict form indicates that the jury did find mitigating factor (5)(h) (any other factor relevant to the defendant's character or record or the circumstances of the offense), it is not clear what factor, if any, was considered. The jury further found that the mitigating factors neither outweighed the aggravating factors nor were they of equal weight. The court sentenced Gerald to death.

III

Several issues raised by defendant have been resolved by our decisions in State v. Biegenwald, 106 N.J. 13 (1987), and State v. Ramseur, 106 N.J. 123 (1987). With some important qualifications, we concluded in Ramseur that neither capital punishment

per se nor New Jersey's death-penalty statute, N.J.S.A. 2C:11-3(c) (the Act), violates the prohibition against cruel and unusual punishment contained in the U.S. Constitution, amendments VIII and XIV, and in Article I, paragraph 12 of the New Jersey Constitution of 1947. See Ramseur, supra, 106 N.J. at 166-97.

The trial court, in compliance with the statutory provisions then in force, instructed the jury in the penalty phase to determine whether the totality of mitigating factors outweighed or equalled the totality of the aggravating factors beyond a reasonable doubt. The charge requires reversal. Under the charge given, a finding that the aggravating and mitigating factors were in equipoise would have resulted in a death sentence, a result proscribed by Biegenwald, supra, 106 N.J. at 62. Nor is Biegenwald 's requirement that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt satisfied by a finding, as here, that the aggravating factors were neither equal to nor outweighed by the mitigating factors. As we stated in Biegenwald:

[W]e believe that the phrasing of the question is more disadvantageous to the defendant than is suggested by the logical analysis wherein the only difference results where the factors are "in equipoise." It is not a very substantial change in a juror's mind that is required to transform "you must find, beyond a reasonable doubt, that the aggravating factors are not outweighed by the mitigating factors" to "you must find, beyond a reasonable doubt, that the mitigating factors outweigh the aggravating factors."

[ Id. at 61.]

Thus, as the State concedes, the absence of a specific finding that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt requires vacation of the death sentence and a resentencing hearing to determine whether the death penalty should be imposed.

Defendant further contends that the Act unconstitutionally promotes irrational sentencing because felony-murder can be considered either as an aggravating factor to capital murder, N.J.S.A. 2C:11-3(c)(4)(g), or a homicide of a lesser degree, N.J.S.A. 2C:11-3(a)(3), punishable by a term of thirty years to

life imprisonment. We rejected that argument in Ramseur, concluding that Section (c)(4)(g) is "unquestionably constitutional." 106 N.J. at 189-90 n. 21 (citing Calhoun v. State, 297 Md. 563, 625-26, 468 A.2d 45, 75 (1983), cert. den., 466 U.S. 993, 104 S. Ct. 2374, 80 L. Ed. 2d 846 (1984)). We reaffirmed that conclusion in State v. Bey, 112 N.J. 123, 172-173 (1988) (Bey II), and do so again today.

In a like manner, we observed in Ramseur that aggravating factor (4)(c) -- 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" -- was "troublesome because of its obvious vagueness." 106 N.J. at 198. However, in line with the Supreme Court's pronouncements in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), we adopted a narrow construction of that language in order to guide the jury's discretion in applying that factor. Accordingly, we concluded that the first part of the provision -- the "murder was outrageously or wantonly vile, horrible or inhuman" -- was "[n]either an independent requirement [n]or a qualitative modification of what follows." Ramseur, supra, 106 N.J. at 200. In respect of the second part of the provision -- the murder "involved torture, depravity of mind, or an aggravated battery to the victim" -- we determined that in adopting this language, the Legislature was concerned with the defendant's state of mind: "society's concern, the community's concern, the Legislature's concern, is to punish most harshly those who intend to inflict pain, harm and suffering -- in addition to intending death." Id. at 207-08. We summarized our interpretation of the statutory language as follows:

Torture or aggravated battery to the victim shall be found if the defendant intended to cause, and did in fact cause, severe physical or psychological pain or suffering to the victim prior to the victim's death, "severity" measured either by the intensity of the pain, or the duration of the pain, or a combination of both. Where the murder was not the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder, and served no purpose for the defendant beyond his pleasure of killing, the court shall instruct

the jury on the meaning of depravity in this specific context. For the defendant who killed for the enjoyment of it, because the victim just happened to be in the area, or for no reason at all, just to kill, society must be able to reserve its most extreme sanction.

[ Id. at 211 (footnotes omitted).]

Without the benefit of our opinion in Ramseur, the trial court in this case first construed the introductory portion of Section (c)(4)(c) as a requirement independent of the second portion. Second, the court improperly defined torture and aggravated battery to focus on the state of mind and physical experiences of the victim. Third, the court erroneously defined depravity of mind as "a complete indifference to human dignity and a total and senseless disregard for human life." The State concedes that the charge was improper under the standard stated above. However, the defendant and the State disagree on whether the evidence produced was sufficient to sustain a jury finding that this factor existed even under the Ramseur definitions. Defendant contends that the evidence did not demonstrate a purposeful infliction of pain in addition to death, and that therefore there was no torture or aggravated battery. Further, defendant argues that "depravity of mind," as defined in Ramseur, cannot be proven because the murder was not motiveless but rather was the product of "greed, or anger at the victim's resistance." The State counters that the extensiveness of the beating after the victim was unconscious evidenced the fact that defendant beat the victim "for no reason other than the joy of it or because the victim was there." The "depravity" definition provided in Ramseur was designed to isolate those for whom the murder "served no purpose for the defendant beyond his pleasure of killing." 106 N.J. at 211. Given Ramseur 's intention to include within the reach of the term "depravity" only those murders that are entirely without motive, we hold that where, as here, greed, anger, revenge, or other similar motive is present, the depravity aspect of Section (c)(4)(c) should not be submitted to the jury. In respect of the statutory requirement of torture or aggravated battery, we cannot agree with defendant that this record is insufficient to

sustain a finding that the defendant intended to and did cause "severe physical or psychological pain or suffering to the victim prior to the victim's death." Ibid.

Defendant next acknowledges that under Ramseur, the jury need not make a specific finding that "death is an appropriate punishment." 106 N.J. at 316 n. 80. However, defendant further argues that the jury's sense of responsibility for its verdict in this case was so diluted that it prejudiced defendant's right to a fair trial. On remand and, if appropriate, on sentencing after those proceedings, the trial court should instruct the jury in accordance with this Court's opinion in Bey II, supra, 112 N.J. at 161-164.

As defendant concedes, we have rejected on both federal and state constitutional grounds the argument that the process of "death qualifying" a jury denies the defendant a fair and impartial panel. See Ramseur, supra, 106 N.J. at 248-54 (citing Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986)).

Finally, defendant argues that fundamental fairness requires that the defendant be allowed to make the initial opening statement and the final summation during the penalty phase of a capital trial. We rejected that argument in Ramseur, supra, 106 N.J. at 318 n. 81 and reaffirmed that conclusion in Bey II, supra, 112 N.J. at 183-184 as we do again today.

An additional argument raised by defendant was addressed recently by this Court in Bey II. Defendant contends that the trial court improperly instructed the jury on "how [it] should collectively weigh the aggravating and mitigating factors." The court first charged the jury that it "must unanimously agree that the State has proven beyond a reasonable doubt the existence of an aggravating factor." (Emphasis added). Concerning the existence of mitigating factors, however, the court instructed the jury that

[t]he defendant has the burden of coming forward with evidence of mitigating factors. The defendant is not required to prove mitigating factors beyond a

reasonable doubt. However, the defendant is obligated to place before you credible evidence of the factors which he alleges to exist. It is up to you to accept or reject these factors depending upon your evaluation of the defendant's evidence. Unlike the situation with aggravating factors, your verdict does not have to be unanimous. If any one of you finds a mitigating factor exists, check "Yes" in the appropriate space on the verdict sheet. If none of you so find, check "No" next to the mitigating factor on your verdict sheet.

If you have found beyond a reasonable doubt that an aggravating factor or factors exist, and you also find that no mitigating factors exist, then make the appropriate markings on your verdict sheet and proceed no further. That will be your verdict in the case and your duties will be at an end. Simply return the verdict sheet to the Court with your foreperson's signature. Keep in mind, however, that merely because one or more of you finds that a mitigating factor exists, this does not require all of you to find that the mitigating factor exists. If, for example, four of you find that a mitigating factor exists and eight do not so find, then the four may consider the mitigating factor in their deliberations. However, the eight who found that the mitigating factor does not exist should not consider that mitigating factor in their deliberations.

[Emphasis added.]

The charge complies with the requirements stated in Bey II, wherein we concluded, inter alia, that the jury must be unanimous in finding the existence of an aggravating factor or factors. 112 N.J. at 159. A "lack of unanimity suggests that the factor has not been established beyond a reasonable doubt as required by N.J.S.A. 2C:11-3(c)(2)(a)." Id. at 139, 548 A.2d 887. In contrast, "the defendant bears only 'the burden of producing evidence of any mitigating factor,'" and does not bear the burden of proving the existence of that factor. Id. at 160 (emphasis added) (quoting N.J.S.A. 2C:11-3(c)(2)(a)). We concluded that the legislative intent was that the jurors need not unanimously find the existence of a mitigating factor, but that

[a]s long as one juror perceives any mitigating factor relating to the defendant or to the crime that is not outweighed beyond a reasonable doubt by the aggravating factors, the jury must not sentence the defendant to death. Each juror, therefore, should individually determine the existence of mitigating factors and then individually decide whether the aggravating outweigh the mitigating factors beyond a reasonable doubt. Only after such independent weighing by each juror may the unanimous agreement of all jurors lead to the imposition of the death penalty.

[ Id. at 162 (citation omitted).]

We conclude that the charge given in this case was in keeping with Bey II's requirements and therefore proper.

IV

We turn now to a question that has been neither raised nor argued by the parties, but one that nevertheless demands consideration because of its importance to a just resolution of this appeal. As the South Carolina Supreme Court has declared, "where the death penalty is involved, it is the duty of this Court to examine the record for any errors affecting the substantial rights of the accused, even though not made a ground of appeal." State v. Taylor, 213 S.C. 330, 331, 49 S.E. 2d 289 (1948); see also Biegenwald, supra, 106 N.J. at 62 ("In no proceeding is it more imperative to be assured that the outcome is fair than in [capital] cases"); cf. Ramseur, supra, 106 N.J. at 260 (in capital case, Court considered sua sponte whether there was plain error in voir dire of juror); Biegenwald, supra, 106 N.J. at 53 ("while defendant did not raise the issue either at trial or on appeal, we find that the trial court's instructions in the sentencing proceeding constituted plain error of a nature to warrant our consideration sua sponte."); State v. Mount, 30 N.J. 195, 213 (1959) ("where a life is at stake, this court does not hesitate in the interests of justice to invoke the plain error rule and to reverse where the trial errors were impregnated with the likelihood of having harmed the substantial rights of the defendant." (citation omitted)). We hold, on state constitutional grounds, that a defendant who is convicted of purposely or knowingly causing "serious bodily injury resulting in death" under N.J.S.A. 2C:11-3(a)(1) and (2), or either of them -- as opposed to one who is convicted of purposely or knowingly causing death under those same provisions -- may not be subjected to the death penalty. Because the jury in this case did not specify which of the foregoing offenses defendant was convicted of, and because it is possible, on this record, that the jury could have determined that the defendant had the purpose or knowledge to cause only

serious bodily injury but not death, we conclude that the judgment of conviction on the thirteenth count must be reversed and the cause remanded for retrial.

We have considered, and rejected, a result that would modify so much of the judgment on the thirteenth count as declares defendant guilty of capital murder, permitting the conviction of murder to stand and remanding the cause for further proceedings to determine defendant's death-eligibility, to be followed, if eligibility be found, by a new sentencing proceeding. We have rejected that outcome because it would in effect be asking a second jury to accept -- indeed, to be bound by -- the findings of the first jury but then guess at precisely what the first jury meant. Such a piecemeal approach to guilt-innocence is unacceptable as a general proposition in any criminal prosecution. We repeat our commitment to the principle, albeit expressed in a different context, that

"[t]he requirement that 12 persons reach a unanimous verdict is not met unless those 12 reach their consensus through deliberations which are the common experience of all of them. It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. Deliberations provide the jury with the opportunity to review the evidence in light of the perception and memory of each member. Equally important in shaping a member's viewpoint are the personal reactions and interactions as any individual juror attempts to persuade others to accept his or her viewpoint. The result is a balance easily upset if a new juror enters the decision-making process after the 11 others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. By this we mean that a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity."

[State v. Trent, 79 N.J. 251, 256 (1979) (quoting People v. Collins, 17 Cal. 3d 687, 693, 552 P. 2d 742, 746, 131 Cal.Rptr. 782, 786 (1976)).]

See also State v. Ingenito, 87 N.J. 204, 212 (1981) ("[The] duties inherent in the jury function include determining the facts in the case, considering all of the relevant admissible evidence bearing upon the charges, evaluating the credibility of witnesses, assessing the weight and worth of evidence, and deciding the ultimate guilt or innocence of a defendant in light of the

underlying evidence."), quoted in State v. Ragland, 105 N.J. 189, 203 (1986).

A

In pertinent part, N.J.S.A. 2C:11-3 provides as follows:

a. * * * [C]riminal homicide constitutes murder when:

(1) The actor purposely causes death or serious bodily injury resulting in death; or

(2) The actor knowingly causes death or serious bodily injury resulting in death * * *.

c. Any person convicted under subsection a.(1) or (2) who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment, of anything of pecuniary value shall be sentenced [in accordance with the Act's capital punishment provisions] * * *.

The death-penalty statute clearly exposes to the death penalty one who purposely or knowingly causes serious bodily injury resulting in death. Justice Handler, dissenting in Ramseur, found this aspect of the Act indicative of the "extraordinary breadth" of the class of murderers potentially subject to capital punishment. 106 N.J. at 387; see also Bey II, supra, 112 N.J. at 131 (Handler, J., dissenting) (Act "does not even require that a capital defendant have intended to kill"). In support of his conclusion in Ramseur, Justice Handler looked to the criminal law as it existed prior to the adoption of the New Jersey Code of Criminal Justice (the Code) in 1978. Under the earlier statute, murder was of either the first or second degree, and only those convicted of first-degree murder were subject to capital punishment. Id. 106 N.J. at 387-88. Justice Handler summarized first degree murders under the former statute, N.J.S.A. 2A:113-2, as follows: "murders accomplished by poison or lying in wait, murders during the course of certain named felonies and the murder of a law enforcement officer," and those other murders in which the State proved premeditation, deliberation, and willful execution of the plan. Id. at 388 (citing State v. Anderson, 35 N.J. 472, 496-97 (1961)). All other murders were presumptively of the second degree, and

were therefore non-capital crimes. Ibid. The Ramseur dissent noted that although the current Act "includes, as capital murder, death that results solely from the intentional infliction of serious bodily harm[,] [i]t was clear under the former law that the intent only to do serious bodily harm was insufficient for a first degree murder conviction." Id. 106 N.J. at 388-89 (citing State v. Thomas, 76 N.J. 344 (1978); State v. Madden, 61 N.J. 377 (1972); State v. Anderson, supra, 35 N.J. at 497; State v. Wynn, 21 N.J. 264 (1956)).

The Ramseur majority responded to the dissent's "overbreadth" argument not only by agreeing that an intent to inflict serious bodily harm was not sufficient to sustain a first degree murder conviction under the former statute, but also by acknowledging that "it may similarly be insufficient to support a capital sentence today because of the constitutionally required culpability standards regarding a capital defendant's intent to kill." 106 N.J. at 194. Support for that statement was found in the Supreme Court's decision in Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982).

In Enmund, the defendant was the driver of a getaway car. His two colleagues killed the two intended robbery victims. Defendant was sentenced to death on his conviction for murder, based on felony-murder and accomplice-liability theories. See id. at 786, 102 S. Ct. at 3371, 73 L. Ed. 2d at 1144-45. The Supreme Court held that death is a disproportionate penalty "for one who neither took life, attempted to take life, nor intended to take life." Id. at 787, 801, 102 S. Ct. at 3371, 3378, 73 L. Ed. 2d at 1145, 1154. Applying federal proportionality principles found in Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973, 990 (1978), and Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944, 961 (1976), the Enmund Court focused its inquiry on Enmund's personal culpability. Enmund, supra, 458 U.S. at 798, 102 S. Ct. at 3377, 73 L. Ed. 2d at 1152. The Court concluded that

Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the [victims]. This was impermissible under the Eighth Amendment.

[Ibid.]

Our statement in Ramseur, quoted supra at 72, was rooted in the Enmund Court's federal proportionality analysis. However, shortly after our decision in Ramseur, the Supreme Court decided Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987), substantially restricting the scope of Enmund.

In Tison, defendants were brothers who had helped to arrange the escape from prison of their father and his cellmate, both convicted murderers. When their getaway car broke down in the desert, the group decided to flag down a passing motorist to steal another car. One of the brothers stood in front of their disabled car, while the others armed themselves and lay in wait. When a family stopped to render assistance, the group emerged and forced the family down a dirt road off the highway. The father of the family begged for their lives; the defendants' father reportedly said he was "thinking about it." Id. at 140, 107 S. Ct. at 1679, 95 L. Ed. 2d at 133. The defendants' father then told his sons to return to the car for some water for the family. While the defendants fulfilled that mission, their father and his cellmate shotgunned the family to death. In due course defendants were captured and were tried, convicted, and sentenced to death under Arizona's felony-murder and accomplice liability statutes. See id. at 140, 107 S. Ct. at 1679, 95 L. Ed. 2d at 134.

Defendants' principal argument before the Supreme Court was that their death sentences were disproportionate under the eighth amendment as construed in Enmund v. Florida, supra, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140. Justice O'Connor, who had dissented in Enmund, wrote for the majority, reading the Enmund decision narrowly. Enmund, she wrote, dealt with only

two distinct subsets of all felony murders * * *. At one pole was * * * the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state. * * * The Court held that capital punishment was disproportional in these cases. Enmund also clearly dealt with the other polar case: the felony murderer who actually killed, attempted to kill, or intended to kill.

[Tison, supra, 481 U.S. at 149-150, 107 S. Ct. at 1684, 95 L. Ed. 2d at 139.]

According to the Tison majority, Enmund left open "the intermediate case of the defendant whose participation is major and whose mental state is one of reckless indifference to the value of human life." Id. at 152, 107 S. Ct. at 1685, 95 L. Ed. 2d at 141. The majority argued that the "substantial and recent legislative authorization of the death penalty for the crime of felony murder regardless of the absence of a finding of an intent to kill * * * suggests that our society does not reject the death penalty as grossly excessive under these circumstances." Id. at 154, 107 S. Ct. at 1686, 95 L. Ed. 2d at 142. Addressing, finally, defendants' contention that they did not, in Enmund 's terms, "kill, attempt to kill, or intend to kill," the Court stated:

A narrow focus on the question of whether * * * a given defendant "intended to kill," however, is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Many who intend to, and do, kill are not criminally liable at all -- those who act in self-defense or with other justification or excuse. * * * On the other hand, some nonintentional murderers may be among the most dangerous and inhumane of all -- the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property. This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an "intent to kill." * * * [W]e hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.

[Id. at 157-158, 107 S. Ct. at 1687-88, 95 L. Ed. 2d at 144.]

Because the Tisons' participation in the crime was "substantial" -- each was "actively involved in every element of the kidnapping-robbery and was physically present during the entire sequence of criminal activity culminating in the murder," id. at 157, 107 S. Ct. at 1688, 95 L. Ed. 2d at 144 -- and because actual

armed escape and kidnapping involved a "reckless indifference to human life," the Court held that the Tisons' conduct did not fall within the proscription of Enmund. Id. at 157, 107 S. Ct. at 1688, 95 L. Ed. 2d at 145. The Tison Court thus rejected the "intent to kill" requirement on which the majority of this Court in Ramseur had relied to limit the breadth of the death-eligible class under N.J.S.A. 2C:11-3.

It is now clear, as a matter of federal proportionality principles, that capital punishment may be imposed on one who commits a homicide without the purpose or knowledge that death will result, at least to the extent that the defendant's conduct can be characterized as "recklessly indifferent to human life." Defendant's conduct in this case appears (or so a jury could find) to fall within the Tison category of nonintentional murders that manifest a reckless indifference to human life: "the person who tortures [or beats] another not caring whether the victim lives or dies, or the robber * * * utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing * * *." Id. at 157, 107 S. Ct. at 1688, 95 L. Ed. 2d at 144. Indeed, defendant also qualifies as death-eligible under the Tison Court's analysis of Enmund 's "other polar case" -- "the felony murderer who actually killed, attempted to kill, or intended to kill," id. at 150, 107 S. Ct. at 1684, 95 L. Ed. 2d at 139 (emphasis added) -- in which capital punishment is deemed clearly appropriate.

The federal constitutional analysis, of course, does not end the inquiry. E.g., State v. Hunt, 91 N.J. 338, 344 (1982). Indeed, given this Court's reliance on Enmund's intent-to-kill requirement to limit the class of death-eligible murderers, the Tison Court's retreat from that requirement raises anew, as a matter of state constitutional law, the issue of the adequacy of the definition of capital murder in N.J.S.A. 2C:11-3.

B

As we acknowledged in Ramseur, it is appropriate to analyze the death penalty statute not only under the federal

constitution but under state-constitutional standards as well. 106 N.J. at 167. The Supreme Court also has observed that in capital cases, as in other constitutional contexts, the states "are free to provide greater protections in their criminal justice system than the Federal Constitution requires." California v. Ramos, 463 U.S. 992, 1013-14, 103 S. Ct. 3446, 3460, 77 L. Ed. 2d 1171, 1188-89 (1983). Resort to a state-constitutional analysis is especially appropriate in light of the fact that "capital punishment is a matter of particular state interest or local concern and does not require a uniform national policy * * *." Ramseur, supra, 106 N.J. at 167 (citing State v. Hunt, supra, 91 N.J. at 366 (Handler, J., concurring)). As we have done in other areas of constitutional law, we conclude that Article 1, paragraph 12 of our state constitution -- "cruel and unusual punishments shall not be inflicted" -- affords greater protections to capital defendants than does the eighth amendment of the federal constitution. Cf., e.g., State v. Novembrino, 105 N.J. 95, 145 (1987) (Article 1, paragraph 7 of our state constitution "affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment"), and the authorities cited therein.

The question to be addressed here is whether a sentence of death is disproportionate for a defendant who had no intent to kill his or her victim, but rather intended only to inflict serious bodily injury, even though the injury did in fact result in death. For purposes of this analysis, we use the terms "intend" or "intent" to refer collectively to both mental states provided for in the murder statute, i.e., purpose, N.J.S.A. 2C:11-3a(1), and knowledge, N.J.S.A. 2C:11-3(a)(2), as those terms are defined in N.J.S.A. 2C:2-2(b)(1) and (2), respectively.

We sometimes look to aspects of the Supreme Court's constitutional analysis, where persuasive, for guidance in establishing principles under our state constitution. E.g., Ramseur, supra, 106 N.J. at 168. We observe at the outset that the death penalty statute must "limit imposition of the penalty to what is assumed to be the small group for which it is appropriate

* * *." Id. at 183 (citing Furman v. Georgia, supra, 408 U.S. at 310, 92 S. Ct. at 2763, 33 L. Ed. 2d at 390 (White, J., concurring)). We also record our agreement with the Tison Court's statement that "[d]eeply ingrained in our legal tradition is the idea that the more purposeful the conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished." 481 U.S. at 156, 107 S. Ct. at 1687, 95 L. Ed. 2d at 143. As we stated in Ramseur, supra, 106 N.J. at 207-08 "[o]ur system of criminal laws is predicated usually on the imposition of punishment based on the defendant's intent. Indeed, our Code's ranking of crimes by degree places those crimes committed with intentional conduct as the highest degree of crime, for which the defendant is most severely punished."

We observe initially that the death-penalty statute is relatively narrow in its scope. First, by its very terms, N.J.S.A. 2C:11-3(c) is limited in its application to those persons who are convicted of murder under N.J.S.A. 2C:11-3(a)(1) or (2), thereby rendering non-death-eligible those defendants who are convicted of felony murder under N.J.S.A. 2C:11-3(a)(3). Second, not all murderers convicted under N.J.S.A. 2C:11-3(a)(1) or (2) are subjected to capital punishment, inasmuch as the legislature has further restricted the scope of the statute by subjecting only two classes of murderer to the death penalty: (1) one "who committed the homicidal act by his own conduct," see infra at 92-101, and (2) one "who as an accomplice procured the commission of the offense by payment or promise of payment, of anything of pecuniary value * * *." N.J.S.A. 2C:11-3(c). Under these provisions, then, New Jersey does not impose the death penalty on those who are convicted solely of felony-murder pursuant to N.J.S.A. 2C:11-3(a)(3). With the exception of those who hire another to commit the murder, the statute's provision for capital punishment does not reach those who are convicted, on a theory of vicarious liability under N.J.S.A. 2C:2-6, of purposeful or knowing murder pursuant to N.J.S.A. 2C:11-3(a)(1) and (2). Under this limited statutory scheme, the

Tison brothers -- who were convicted on felony-murder and accomplice-liability theories, see 481 U.S. at 141, 107 S. Ct. at 1679, 95 L. Ed. 2d at 134 -- could not have been subjected to capital punishment had they been tried and convicted under New Jersey law.

In addition, the legislature clearly has rejected the Tison Court's conclusion that one who causes death while acting with a "reckless indifference to human life" can be subjected to the death penalty. See id. at 152, 107 S. Ct. at 1685, 95 L. Ed. 2d at 141. In N.J.S.A. 2C:11-4(a) the legislature has defined aggravated manslaughter, a non-capital crime, as "recklessly caus[ing] death under circumstances manifesting extreme indifference to human life." Therefore, the least opprobrious mental state that would sustain imposition of the death penalty under the eighth amendment is insufficient to support even a conviction for non-capital murder under our Code. It is thus apparent that New Jersey has adopted a death-penalty statute that is narrower in its scope than is required by the eighth amendment. Our task here is to define one of the limits of that scope under the state constitution.

As we stated in Ramseur,

[t]he test to determine whether a punishment is cruel and unusual under Article I, paragraph 12, of our Constitution is generally the same as that applied under the federal Constitution. Three inquiries are required. First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate penological objective? Gregg v. Georgia, supra, 428 U.S. at 173, 96 S. Ct. at 2925, 49 L. Ed. 2d at 874-75; State v. Des Marets, 92 N.J. 62, 82 (1983); State v. Hampton, 61 N.J. 250, 273-74 (1972).

[106 N.J. at 169.]

If the punishment fails any one of the three tests, it is invalid. See Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 2866, 53 L. Ed. 2d 982, 989 (1977) (plurality opinion).

For purposes of our discussion, we will assume that the first and third criteria have been satisfied. In Ramseur, we held that capital punishment per se conforms with contemporary

standards of decency. See 106 N.J. at 169-74. Although it is not so readily apparent that the imposition of the death penalty on one who did not intend the death of his or her victim conforms with those same standards, we need not consider that question further. We also concluded in Ramseur that capital punishment accomplishes the legitimate penological objectives of retribution and deterrence. Id. at 175-81. But see Lockett v. Ohio, supra, 438 U.S. at 625, 98 S. Ct. at 2984, 57 L. Ed. 2d at 1003 (White, J., concurring in part and dissenting in part) ("The value of capital punishment as a deterrent to those lacking a purpose to kill is extremely attenuated. Whatever questions may be raised concerning the efficacy of the death penalty as a deterrent to intentional murders -- and that debate rages on -- its function in deterring individuals from becoming involved in ventures in which death may unintentionally result is even more doubtful.").

Our inquiry focuses on the second test, namely, whether the death penalty is grossly disproportionate to the offense. In Ramseur, we concluded that capital punishment is not a disproportionate penalty to the crime of purposeful or knowing murder. 106 N.J. at 174-75. That statement was made in the context of a factual situation drastically different from that presented in this case. Prior to the actual murder, Ramseur had on more than one occasion threatened to kill his victim and her grandchildren, as well as having assaulted her. On the day of the murder, Ramseur walked up to his victim on the street and began to stab her. After stabbing her several times, Ramseur started to walk away, only to return to inflict additional wounds. "He told his victim as she lay there, * * * 'If I see your kids again I'm going to kill them too.'" Id. at 162. The victim had a number of "major stab wounds in the face and chest, including two chest wounds about eight and one-half inches deep that pierced the lung." Ibid. She also suffered a number of wounds on her arms, inflicted as she tried to defend herself from her assailant. On such a record, there can be no question that Ramseur intended the death of his victim. Similarly,

in Biegenwald, supra, 106 N.J. 13, it is apparent that the defendant intended to kill his victim, shooting her in the head after luring her to his house. Id. at 20. We adhere to our belief that under such circumstances punishment by death is not disproportionate to the crime. We are satisfied that a different conclusion must be reached, however, when the defendant does not intend the death of his or her victim.

Were we to agree with our concurring colleague Justice O'Hern's conclusion, reached on a statutory-construction basis, that a murder conviction under N.J.S.A. 2C:11-3(a)(1) or (2) requires that the defendant have either the "purpose (conscious object or design) or knowledge (practical certainty) that death will result [,]" post at 144, there would be no need for us to pursue a constitutional analysis. See, e.g., Ocean Pines Ltd. v. Borough of Point Pleasant, 112 N.J. 1, 10-11 (1988); In re Baby M, 109 N.J. 396, 450-51 (1988). Our discussion must therefore begin with the question of how broad is the definition of purposeful and knowing murder under N.J.S.A. 2C:11-3(a)(1) and (2).

Under N.J.S.A. 2C:1-14(h), the "element[s] of an offense" include a combination of (1) conduct, (2) attendant circumstances, and/or (3) the result of such conduct. Under the Code, a person cannot be guilty of an offense "unless he acted purposely, knowingly, recklessly or negligently as the law may require, with respect to each material element of the offense." N.J.S.A. 2C:2-2(a). The Code further provides that "[w]hen the law defining an offense prescribes the kind of culpability sufficient for the commission of an offense without distinguishing among the material elements thereof, such provision shall apply to all material elements of the offense, unless a contrary purpose plainly appears." N.J.S.A. 2C:2-2(c)(1).

In N.J.S.A. 2C:2-2(b), the Code defines the four possible grades of culpability that the actor might have in respect of each element of the offense, distinguishing among the three

possible elements. Our concern here is with only two degrees of culpability, namely, purpose and knowledge:

(1) Purposely. A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. "With purpose," "designed," "with design" or equivalent terms have the same meaning.

(2) Knowingly. A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.

Turning to the definition of "murder" contained in N.J.S.A. 2C:11-3(a), we see that only two elements are included: conduct and the result of that conduct. Limiting our inquiry to the latter element, under N.J.S.A. 2C:11-3(a)(1) a defendant may be convicted of purposeful murder when he or she possessed either (a) the "conscious object * * * to cause" death, or (b) the "conscious object * * * to cause" serious bodily injury resulting in death. See N.J.S.A. 2C:2-2(b)(1). Similarly, a defendant may be convicted of knowing murder under N.J.S.A. 2C:11-3(a)(2) when he or she is either (a) "aware that it is practically certain that his conduct will cause" death, or (b) "aware that it is practically certain that his conduct will cause" serious bodily injury resulting in death. See N.J.S.A. 2C:2-2(b)(2). The legislature has defined "serious bodily injury" as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ * * *." N.J.S.A. 2C:11-1(b).

It is apparent that the statutory provisions for purposeful and knowing murders contemplate two distinct intended results as possible elements of the crime: the actor may intend to cause either (a) death, or (b) "serious bodily injury resulting in death." The actual result in both instances is the same: the

defendant's conduct has caused the victim's death. We look, then, for the distinguishing feature between the two possible results, striving, as we must, to give effect to the language of the statute as a whole. See, e.g., Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 68 (1978) ("A construction of a legislative enactment that would render any part thereof superfluous is disfavored."); Monmouth Lumber Co. v. Township of Ocean, 9 N.J. 64, 77 (1952) ("It is settled that statutes should be accorded that construction which will give effect to every word expressed by the Legislature therein."). We believe that the answer lies in the actor's state of mind at the time that the crime was committed and in the harm that he or she intended to inflict. The legislative intent is clear: an actor may be convicted of murder both (1) when he or she acted with the purpose or knowledge that the victim's death would follow, and (2) when he or she acted with the purpose or knowledge to inflict only serious bodily injury, but the injury resulted in the victim's death. Stated otherwise, it is not a defense to a charge of purposeful or knowing murder that the actor intended ...


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