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State v. Williams

Decided: December 8, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES EDWARD WILLIAMS, DEFENDANT-APPELLANT



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

For reversal and remand -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Wilentz, C.J. Handler, J., filed a separate concurring opinion. Handler, J., concurring.

Wilentz

In January 1984, a Mercer County jury convicted the defendant, James Edward Williams, of the murder of Beverly Mitchell and thereafter sentenced him to death. He appeals directly to this Court as of right. R. 2:2-1(a)(3). We reverse both the conviction and the sentence. We find as the basis for reversal of both phases the failure of the trial court to assure that the jury was impartial. We find further reversible error in the penalty phase jury instructions. We remand this matter for a new trial of both the guilt and penalty proceedings in accordance with this opinion.

I.

Facts

At approximately 4:00 p.m. on Thursday, December 30, 1982, twenty-three year old Beverly Mitchell arrived for work at the Bellevue Care Center, a Trenton nursing home. Mitchell, a full-time teacher at Trenton High School, held a part-time position as a receptionist at the Center, where on weekdays she worked the 4:30 to 7:30 p.m. shift. She occupied a desk in the reception area, and controlled access to the normally-locked front door. As late as 6:05 p.m. on that day, she was seen sitting at her typewriter alone in the reception area. A nurse at the Center noticed sometime shortly before 6:45 p.m. that Mitchell was not at her desk. At about 6:45, the nurse entered

an office adjoining the reception area, turned on the light, and found Beverly Mitchell's dead body lying on the floor.

The scene was gruesome. The victim lay face down and naked, her clothing strewn about the room. There was blood on the floor, the walls, and the furniture. Under the body, investigators found an undergarment, some pieces of jewelry, and a steak knife covered with blood.

The autopsy determined that Beverly Mitchell had been stabbed thirty-six times: there were twenty-one wounds on the back, seven on the front, and eight defense wounds on the body. Additionally, there were bruises, contusions, and abrasions in numerous areas of the body, and the victim's throat was slashed. The medical examiner found that the throat slashing and the defense wounds were superficial and would not have killed or immobilized the victim. The wounds to the front of the body would not, in her estimation, have immediately killed or immobilized the victim either; it was the wounds to the back that were fatal. The medical examiner concluded that the steak knife discovered at the scene could have been the murder weapon, but that another knife could also have been used. It was also her opinion that the victim had been sexually assaulted, although she found no trauma to the genital area.

Two days after the murder, defendant's mother, Sharon Ildefonso, and younger brother, Dennis Floyd, came forward. Floyd said that he had accompanied defendant to the Bellevue Care Center on the evening of December 30 and had witnessed the killing. His testimony would become the foundation of the State's case against James Williams.

Although brothers, Floyd and Williams had known each other only a few months at the time of the murder, having been raised in separate foster homes. They nonetheless had become companions, with Floyd, who was seventeen or eighteen, tending to follow his twenty-one year-old brother's lead. So it was the evening of the killing.

According to Floyd's testimony, the two brothers spent the late afternoon of December 30 drinking beer with four friends at Williams' apartment. Williams had "seemed to be okay," but at some point during the gathering began speaking and acting aggressively. He spoke more than once of "going to make some money tonight" and going to "beat up some white boys," at one point placing a knife in his belt and repeating the statement about making money. Floyd testified that he did not take this statement seriously, since defendant was employed as a construction worker and was not, to Floyd's knowledge, in need of money. Though not knowing his brother's destination, Floyd accompanied Williams as he left the apartment and walked to Bellevue Avenue. As the two young men approached the Bellevue Care Center, Floyd pointed out the Center as the place where his foster grandmother had died.

Williams proceeded to the main entrance of the Center, his brother following. Defendant opened the door -- whether it had been locked Floyd did not know -- and stated to the young black woman in the reception area that he wanted to see a Mr. Hoffman. The woman indicated that Mr. Hoffman was on the second floor, and Floyd walked toward the elevator. Defendant, however, approached the woman and began pushing her into a back room. Floyd followed. Once in that room, defendant closed the door and turned out the lights and then ordered the victim to take off her clothes. She started to comply, but then stopped, at which point defendant "got mad" and began hitting her. The victim, in a scared voice, cried, "Jesus help me."

What followed, according to Floyd's testimony, was a horrendous sequence of events in which defendant raped and stabbed the victim while Floyd passively stood by, gripped by fear. The 6'6" Williams forced the 5'2" victim to the floor, where she lay on her back. Floyd testified that defendant appeared to penetrate the victim. She screamed; he put his hand over her mouth and then "started cutting her." The victim eventually managed to stand up, at which point defendant stabbed her in

the back. After the victim fell to the floor on her face, defendant got down on one knee and "started stabbing her in the back." Williams then attempted to give his brother the knife and have him "stab her a couple of times." Floyd refused. Defendant then began looking around to see if he had dropped anything, saying that he did not want to leave any evidence. "He asked me if I touched anything," Floyd recounted at trial, "and I said no." On the way out, Williams took the victim's pocketbook.

Williams was limping slightly and bleeding from his leg as he left the scene of the crime; he blamed his stab wound on his brother's nervousness, and told Floyd that "the last person who was nervous I iced him." He later rubbed blood on the elbows of his brother's coat. He told Floyd that he had stabbed the woman in her lungs, liver, and heart to make sure that she was dead.

The two brothers proceeded back to Williams' apartment, where defendant hid the knife he had with him under some blankets. Williams dumped the contents of Beverly Mitchell's pocketbook on the floor of the apartment, searched for money and credit cards, then put everything back into the pocketbook. Defendant then washed his hands and changed coats, though he did not change his bloodstained jeans and boots. Floyd also changed his jacket on defendant's instructions. The two men went out again, proceeding first to a site along the Delaware River, where defendant put a rock into the pocketbook and tossed it into the water, and then to various points in Trenton in an effort to establish an alibi. On the way through Trenton, they passed the Bellevue Care Center; "as he passed Bellevue, he said they don't know yet. And he started laughing." At one point during the journey around Trenton, Williams bought and smoked "what looked like a white joint" in order, he later told Floyd, "to help him handle what he did." Floyd testified, however, that he had not seen Williams using drugs earlier in the day, and that he had noticed nothing impaired in defendant's motor skills.

Floyd remained silent about the murder for two days, telling only his mother, Sharon Ildefonso, with whom he was then living. Both were fearful of defendant. Their decision to come forward came after Williams made an unannounced visit to the Ildefonso apartment on January 1 with "a bag full of bloody clothes," which he and Floyd proceeded to wash at the laundromat across the street. While at the laundromat, defendant stated that he intended to kill his mother's minister. The brothers returned to the Ildefonso apartment, where Floyd saw that defendant was carrying a gun. After Williams left, Floyd and Ildefonso decided to contact the authorities.

The following day, Williams was arrested. A search of his apartment uncovered, among other items, the jeans, coat, and boots that defendant wore on the evening of the murder, a serrated steak knife, a blood-stained cloth, a pellet gun, and copies of two local newspapers with articles providing details of the murder of Beverly Mitchell. On January 3, 1983, Beverly Mitchell's pocketbook was recovered from the Delaware River. Inside were found, in addition to the victim's belongings, two letters addressed to James Williams.

On April 15, 1983, a Mercer County Grand Jury indicted defendant on the following charges: knowing and purposeful murder by his own conduct, in violation of N.J.S.A. 2C:11-3a(1) and (2) (count one); murder during the course of a robbery, in violation of N.J.S.A. 2C:11-3a(3) (count two); robbery while armed with a knife, in violation of N.J.S.A. 2C:15-1 (count three); robbery, in violation of N.J.S.A. 2C:15-1 (count four); murder during the course of an aggravated sexual assault, in violation of N.J.S.A. 2C:11-3a(3) (count five); aggravated sexual assault while armed, in violation of N.J.S.A. 2C:14-2a(4) (count six); aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(6) (count seven); murder during the course of a burglary, in violation of N.J.S.A. 2C:11-3a(3) (count eight); burglary while armed with a knife, in violation of N.J.S.A. 2C:18-2

(count nine);*fn1 and possession of a knife for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d (count ten). Counts four, six, and ten were later dismissed on motion of the prosecution. Dennis Floyd was not indicted in connection with the murder.

Defendant brought a number of pretrial motions, the denial of which he now challenges. These include a motion to allow attorney-conducted voir dire, a motion to permit voir dire questioning regarding racial prejudice, a motion to implement a struck jury system for the exercise of peremptory challenges, and a motion for additional peremptory challenges.*fn2

Jury selection began on January 3, 1984, and continued for nine days. The defense exhausted all twenty peremptory challenges before the final jury was seated; the State exercised ten of its twelve peremptories. Seven jurors were excluded for cause because of biases regarding capital punishment, six for their opposition to the death penalty, and one for his support of it in all murder cases. The court refused to excuse for cause one juror who initially stated that she would impose the death penalty in all murder cases regardless of the circumstances; this prospective juror was challenged peremptorily by the defense. Sixteen jurors were excluded for reasons unrelated to their death penalty views, and two were excused by consent. The voir dire was marked by repeated defense objection to the

limited scope of the court's questioning, especially with respect to the juror's attitudes toward imposition of the death penalty.

At trial the prosecution's principal witness was Dennis Floyd, who gave the above-summarized account of the events surrounding the murder of Beverly Mitchell. Other prosecution witnesses corroborated the essential aspects of Floyd's version of the events that occurred before and after the murder. One witness confirmed Floyd's description of Williams' aggressive behavior at the apartment, and agreed that defendant had seemed relatively sober. Several noted the strangeness of Williams' behavior later that evening, and in particular referred to defendant's seeming obsession with a threat posed by "poison bubbles in the water." They also testified to Floyd's timid passivity while in defendant's company.

Throughout the trial, the prosecution emphasized the brutality of the crime and the character of the victim. The opening statement began by noting that Beverly Mitchell was "[b]right, beautiful, educated, religious, a member of her church choir," and went on to detail her background. The prosecution's direct examination of the victim's mother similarly belabored, over defense counsel's repeated objections, favorable aspects of the victim's lifestyle. References to the victim's background were also made during summation. Such references caused the defense to move for a mistrial both immediately after the prosecution's opening and following its summation, but these motions were denied on the ground that "a certain amount of background" is permissible.

The defense conceded Williams' presence at the scene of the murder, but argued that Dennis Floyd's account was self-serving and could not be trusted. The defense pointed out inconsistencies in the details of Floyd's testimony and contended, on the basis of testimony from defendant's friends present at Williams' apartment prior to the crime, that defendant had been

using drugs on that day and was intoxicated at the time of the killing.

On January 31, 1984, the jury returned a verdict of guilty on all counts.*fn3

During the penalty phase, the prosecution continued, again over objection, to refer to the victim's character and background. The prosecution sought to establish that the murder was outrageously and wantonly vile and that it occurred in the course of the commission of a sexual assault, both facts constituting statutory aggravating factors. It introduced photographs of the victim's body and testimony from the medical examiner, who concluded that the victim remained conscious and able to feel pain after the frontal wounds were inflicted, and that the victim lived several minutes after sustaining the fatal back wounds.

The defense sought to establish, inter alia, that Williams was acting under the influence of extreme mental or emotional disturbance and that his capacity to conform his conduct to the requirements of law was significantly impaired by intoxication and/or mental disease. It drew largely on records from the Division of Youth and Family Services (DYFS), which had dealt with defendant from the time he was fifteen months old. The evidence suggested that Williams' life had been filled with

instability and emotional trauma from the first; the highlight of this life history was the incident in which, at age nine, defendant had accidently shot his younger brother to death. His childhood had been marked by numerous foster care placements and inadequate psychiatric intervention. The defense also introduced evidence that in November 1982, Williams, a construction worker, had been hit in the head by a load of falling cinder block, after which his behavior began to change in an alarming fashion. It was apparently at this point that defendant became fixated on the threat from "poison bubbles in the water."

The jury found that both aggravating factors existed in this case, i.e., that the murder was outrageously and wantonly vile and occurred in the course of the commission of a sexual assault. It rejected as mitigating factors defendant's age at the time of the murder (twenty-one), his alleged extreme mental or emotional disturbance, and his alleged diminished capacity, but did find that some "other relevant mitigating factor" existed. The jury, operating under the capital punishment charge that has since been invalidated by this Court, State v. Biegenwald, 106 N.J. 13, 53-67 (1987), found that the mitigating factor failed to outweigh each aggravating factor, and therefore imposed the death penalty.

We note at the outset that (as the State acknowledges) our holding in Biegenwald compels reversal of the penalty phase of the proceedings below. "[I]n order for the death penalty to be imposed, the State must prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors." Id. at 67. Our opinion cannot be limited to this conclusion, however, as defendant raises substantial challenges to the guilt phase as well. Moreover, since other issues raised by defendant, though not essential to our holding, may have a significant bearing on the course of other future capital proceedings, those issues will also be treated.

II.

A. Adequacy of the Voir Dire

Defendant argues that the conviction below should be reversed because the manner in which the trial court conducted the voir dire was so inadequate, when viewed as a whole, that it violated defendant's federal and state constitutional right to a fair trial by an impartial jury. This broad-based attack alleges that the trial court repeatedly asked perfunctory questions regarding jurors' attitudes -- both pro and con -- toward the death penalty, their exposure to pre-trial publicity, and preconceived opinions concerning the guilt of the defendant. The inadequate questioning, it is argued, left the defense insufficiently informed to make an intelligent and effective challenge of potential jurors for cause or peremptorily.

We agree with defendant's contentions concerning the overall inadequacy of this voir dire. We need not, however, reach the question whether the inadequacy of the voir dire would, by itself, warrant reversal. Rather, we hold that this inadequacy, when combined with the trial court's erroneous refusal to dismiss prospective juror Pfeiffer for cause, which effectively resulted in defendant's loss of a peremptory challenge, requires reversal of both the guilt and penalty proceedings.

The perfunctory nature of the trial court's questioning of jurors not only forced the defense to exercise its peremptory challenges in an uninformed -- almost random -- manner, it also undercut the ability of the prosecutor to exercise her peremptory challenges effectively. Moreover, the lack of significant information regarding jurors' attitudes on a host of issues effectively denied both parties the ability to challenge jurors for cause, and perhaps most importantly left the trial court unable to fairly evaluate the fitness of many of the jurors to serve. Thus, both parties were forced to use a significant number of peremptory challenges to strike jurors who had given responses that were impossible to interpret or who with a more complete record would be dismissible for cause. This effectively reduced

the number of challenges at each party's disposal and thereby reduces our confidence in the panel that actually was selected. Even in a case such as this, where the evidence of guilt is compelling, the right to a fair trial must be diligently protected to insure that all defendants, regardless of the crime charged or the weight of the evidence produced, are tried by a fair and impartial jury.

Although a significant portion of the errors that we have identified concerned death qualification, our complete review of this jury selection process compels us to conclude that the questioning of numerous jurors was so woefully inadequate that these errors infected not only the penalty phase of this trial, but also seriously undermines our confidence in the fairness and impartiality of the guilt proceeding. Counsel must be afforded the opportunity for a thorough voir dire to evaluate and assess jurors' attitudes in order to effectively participate in jury selection. If counsel is unable to screen out prejudice and bias, that inevitably leads to unfair juries. This result -- or the possibility of this result -- cannot be tolerated.

It is axiomatic that an impartial jury is a necessary condition to a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 1522-23, 16 L. Ed. 2d 600, 620 (1966); Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543, reh. den., 382 U.S. 875, 86 S. Ct. 18, 15 L. Ed. 2d 118 (1965). At an earlier stage of this case, this Court emphasized the right to trial by an impartial jury, secured by Article I, paragraph 10 of the New Jersey Constitution as well as the sixth amendment of the United States Constitution, that a jury panel be "as nearly impartial 'as the lot of humanity will admit.'" State v. Williams (I), 93 N.J. 39, 60-61 (1983) (citations omitted). "This requirement of fairness -- and particularly jury impartiality -- is heightened in cases in which the defendant faces death." Id. at 61; State v. Ramseur, 106 N.J. 123, 324 n. 84 (1987).

In order to insure the impartiality of the jury, we have emphasized the critical importance of the voir dire in exposing

potential and latent bias. Williams (I), supra, 93 N.J. at 68. In Williams (I) we suggested that trial courts

consider the efficacy of more exhaustive and searching voir dire examinations. The court in conducting the voir dire should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias. The court could consider whether there should be a greater willingness to resolve doubts in favor of the defendant in excusing jurors for cause. Particularly in capital cases, trial judges should exercise extraordinary care in the voir dire of potential jurors and could excuse for cause any juror who has been exposed to sensational prejudicial publicity, especially where such exposure is repeated and involves patently inadmissible evidence. The court should also be mindful of the need to fashion effective cautionary jury instructions and to increase the frequency of their application. [ Id. at 68-69 (footnotes omitted).]

Voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and "its exercise of discretion will ordinarily not be disturbed on appeal." State v. Jackson, 43 N.J. 148, 160 (1964), cert. den. sub nom. Ravenell v. New Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). In State v. Singletary, 80 N.J. 55 (1979), we discussed the rationale for this deference to the trial court:

Decisions concerning the potential bias of prospective jurors are primarily subjective in nature. They require at bottom a judgment concerning the juror's credibility as he responds to questions designed to detect whether he is able to sit as a fair and impartial trier of fact. Consequently, such evaluations are necessarily dependent upon an observation of the juror's demeanor during the course of voir dire -- observations which an appellate court is precluded from making.

Inasmuch as the trial judge observed the venireman's demeanor, he was in a position to accurately assess the sincerity and credibility of such statements, and we should therefore pay due deference to his evaluation. . . . [ Id. at 63-64 (citations omitted).]

On reviewing capital jury voir dire proceedings in State v. Biegenwald, supra, 106 N.J. at 35-37, and State v. Ramseur, supra, 106 N.J. at 256-57, we found in each case the trial court's approach to the problems of death qualification and pre-trial publicity entitled to deference. We further noted in Ramseur that "[a] sensitive weighing and appraisal of a juror's entire response must be made by the trial court in its duty to

resolve the question of whether the juror has shown bias or prejudgment. . . ." 106 N.J. at 257. It has also been observed that this Court is "perhaps too far removed" from the realities of the voir dire to appreciate the nuances concealed by a "bloodless record"; therefore deference to the trial court is usually prudent. Id. at 260 (quoting State v. Gilmore, 103 N.J. 508, 547 (1986) (Clifford, J., dissenting)); see also State v. Biegenwald, supra, 106 N.J. at 37 (noting that a trial court's rulings on excusals for cause are "highly discretionary").

Whereas defendants in Ramseur and Biegenwald contested various rulings on challenges for cause, here defendant attacks the overall comprehensiveness of the voir dire, arguing that it falls short of the standards articulated in Williams (I). In order to address this claim, a review of the totality of the voir dire is necessary.

1. Preliminary Voir Dire Instruction

Before any potential jurors were seated or questioned, each was required to complete a questionnaire outlining his or her occupation, familiarity with the case, and whether he or she had had any prior contact with any of the participants in the trial including defendant, witnesses, and counsel. The trial court then conducted the voir dire on the basis of the responses to the written questions. Prior to commencing any individual questioning, however, the trial court provided the jurors with the following instruction regarding the death qualification process:

The people on this jury panel probably have widely differing opinions as to those questions. Some of you may believe that a death penalty should never be imposed no matter what the crime a defendant has committed. Others may believe that the death penalty should always be imposed if a defendant is found guilty of murder no matter what the circumstances are. Some of you may believe that the death penalty is proper in some cases but not in others. Some of you may not have formed any opinions on the subject. . . .

Having any of these views does not necessarily disqualify you from serving as a juror in this case. You are disqualified only if your view is so broad and so firmly held that you will not follow my instructions at the close of the trial with respect to whether the defendant is guilty or if found . . . guilty whether a

penalty of death be imposed or whether the Court will impose some other sentence authorized by the law. In short, your views about a death penalty disqualify you only if they cause you to vote automatically one way or the other without regard to the evidence or my instructions as to whether the defendant is guilty or as to whether a death penalty is to be imposed.

We have serious reservations concerning the propriety of this type of instruction.*fn4 The problem with this instruction is that it effectively tells a juror what answers during the death qualification process lead to automatic excusal and what responses avoid excusal. Although this instruction was surely intended to enable jurors to come forward and openly and honestly disqualify themselves without prolonged questioning, it unwisely put the potential juror in the position of determining whether he or she met the legal requirements to serve on a jury.*fn5

Given the important, delicate, and complex nature of the death qualification process, there can be no substitute for thorough and searching inquiry by the trial court into each individual's attitude concerning the death penalty. An important ingredient in this inquiry is the use of open-ended questions, which in our opinion are most likely to provide counsel and the court with insight into jurors' opinions and biases.

Once the trial court has elicited from each juror sufficient information concerning that person's predilections -- which are much more likely to be expressed freely when the juror is not constrained by an instruction from the court on what kind of answer leads to automatic dismissal -- then counsel's ability to formulate and argue for excusal for cause is enhanced. More importantly, the trial court will have a more complete record on which to apply the Adams-Witt standard in granting or denying excusals for cause. This enhanced record is imperative to preserve society's interest in a fair trial. Greater disclosure will also undoubtedly aid both the defense and prosecution in the exercise of their respective peremptory challenges.

2. Automatic Death Penalty Jurors

Defendant asserts that the trial court abused its discretion in failing to inquire during the voir dire into whether jurors who favored the death penalty in some cases favored the death penalty automatically if the defendant committed murder

and rape.*fn6 This error, it is argued, affected the voir dire of every prospective juror who stated that he or she supported the death penalty in some cases but not in others. Therefore, this error, according to defendant, poisoned the voir dire of all jurors who ultimately served on the jury panel.

Defendant's argument rests on the premise that some jurors, if they found a defendant guilty of a murder involving a rape, would be unable at that point to consider mitigating evidence; their vote in favor of the death sentence, in other words, would be automatic if rape was involved. The trial court rejected this approach, taking the position that the only constitutionally relevant consideration was whether a juror favored or opposed the death penalty in general to such an extent that his or her resolution of the sentencing issue would be automatic, either for or against. Instead each prospective juror was told that the defendant was charged with "murder, robbery, rape, and burglary," and then asked if his knowledge of the charges "would . . . in any way influence their decision as to the imposition of death or nonimposition of death." Although this question was an appropriate starting point, we find that the trial court's repeated refusal to go beyond this initial inquiry raises serious questions about the impartiality of the jury ultimately impanelled.

Our examination of the record indicates ten instances in which the trial court, faced with a juror who favored the death penalty in certain cases, refused defendant's request to inquire whether a conviction for both murder and rape could cause the juror to refuse to consider mitigating factors.

As we stated in State v. Bey (II), 112 N.J. 123, 152 (1988), the standard for exclusion for cause of jurors derived from Witherspoon v. Illinois, 391 U.S. 510, 89 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), 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), applied to jurors who support the death penalty as well as those opposed. The Witherspoon, Adams, and Witt standard is whether the juror's position on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Adams, supra, 448 U.S. at 45, 100 S. Ct. at 2526, 65 L. Ed. 2d at 589. Therefore, the issue presented is not simply whether the combination of murder and another crime would prompt a juror to automatically support the death penalty in all cases, which obviously warrants disqualification. Rather, the issue is whether the juror's "capacity to credit the evidence in mitigation would be 'substantially impaired' within the meanings of Adams and Witt." Bey (II), supra, 112 N.J. at 154.

An example of this inadequacy in the voir dire is the questioning of juror Troyano:

THE COURT: . . . During [the penalty] stage of the trial, the jury might be presented with additional evidence and testimony to consider in deciding the appropriate sentence to be imposed, whether it be death or a prison sentence, in accordance with the law as the Court will instruct you in that law. I again want to remind you in general terms as to the charges under this indictment, and they are murder, under which charge the State is seeking the death penalty. And charges also of robbery, rape and burglary.

Now, these are merely charges, and the defendant is assumed to be innocent of those charges until such time as the State in the trial of this matter proves him guilty of any one or more of those charges beyond a reasonable doubt.

Would the nature of those charges alone in any way affect your ability to be a fair and impartial juror in either the guilt or the sentencing phase of this trial?

MR. TROYANO: I would, to the best of my ability, try to remain open and honest throughout the trial.

THE COURT: Are you indicating that the nature of the charges would not affect your ability in that respect?

MR. TROYANO: No, I don't think they would, your Honor.

After the trial court completed its voir dire of Mr. Troyano, the following colloquy took place concerning this portion of the voir dire.

MR. FISHMAN [defense counsel]: We would ask, we would request that you ask him specifically does he think that the death penalty should automatically apply to someone who was found guilty of a knowing or purposeful killing and a rape.

THE COURT: I deny that.

MR. FISHMAN: Your Honor, could I just indicate for the record that by denying that question you are denying us the information --

THE COURT: We went through this before and you are not getting my view, and I could be right or wrong, but we went through that same question on two or three other jurors. That is a question that the jury would have to answer yes, and it would prove nothing because the mitigating circumstances are not even broached or told to him and that is the law.

MR. FISHMEN: Judge, you are --

THE COURT: You are diverting and --

MR. FISHMAN: -- by not --

THE COURT: -- diverting it actually, and that's not a fair question.

MR. FISHMAN: By not asking that question, you are preventing us from getting information as to whether this person or any of those jurors are automatic death penalty individuals when they are confronted with a murder and a rape. And there's no way for us to tell that. And there are many individuals who are.

THE COURT: I will ask any juror that you request whether or not they would automatically oppose, impose the death penalty regardless of what. And think I've asked that to this particular juror, but I will not tie it up with specific other counts of the indictment, burglary, rape or robbery.

MR. FISHMAN: But it's just those kind of things that make them into automatic death penalty people.

THE COURT: Not, it is not.

MR. FISHMAN: It is.

THE COURT: It is those kind of things that you would like to use to make them into automatic death penalty when they are not factually, reasonably, or realistically automatic death people.

No, I disagree with you.

Anything further?

MR. FISHMEN: Not at this time, your Honor.

The trial court's refusal to allow questions that might provide important insight into any juror's attitude concerning a rape accompanying a murder constitutes serious error. As counsel in the quoted passage asserts, the lawyers and the court were prevented from gathering information about whether a juror would automatically impose the death penalty on a defendant found guilty of rape and murder. Under the eighth amendment, a juror in our system of capital punishment must consider "the character and record of the individual offender and the circumstances of the particular offense. . . ." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944, 961 (1976). We have previously stated that "[t]he sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant." Biegenwald, supra, 106 N.J. at 48 (quoting Spaziano v. Florida, 468 U.S. 447, 459, 104 S. Ct. 3154, 3161, 82 L. Ed. 2d 340, 351 (1984)). It follows that a juror who will not, or cannot, consider relevant mitigating evidence pertaining to the defendant because the crime involves rape and murder is "substantially impaired" under the Adams-Witt test. Therefore, the failure to inquire into whether any juror could consider the mitigation evidence if it was established that defendant was guilty of rape and murder denied counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role in this case.

Whether or not the trial court's refusal to inquire further regarding the murder and rape issue would, by itself, suffice to compel reversal we do not decide; the trial court's failure to make this inquiry is nonetheless a significant component of the deficiencies on which our result today is based.*fn7

3. General Death Qualification

Defendant contends that the trial court's inadequate questions regarding death qualification were also a very damaging part of the voir dire. To support his claim, defendant points to the questioning of the first potential juror, Ms. Vasanski, as indicative of the quality of the voir dire in general. The trial court asked Ms. Vasanski whether she could consider the death penalty as "one of the possible sentences to be imposed . . . should a sentencing stage be required." She answered, "Yes." The court then asked: "Do you agree that you will not automatically reject the death penalty regardless of the evidence

presented?" She answered "yes" again. Then she was asked, "And you also agree that you will not automatically impose the death penalty regardless of the evidence presented?" Ms. Vasanski again answered the question "yes."

At this point a sidebar conference was called where the assistant prosecutor objected to the substance of the voir dire, stating:

I am reluctant, but I think I must say I don't think that that covers the area respectfully. . . . [T]here is nothing . . . to tell us anything at sidebar whether she is giving an automatic yes because that's the way the question is put to her, or whether there is a real understanding.

Based on the entreaties of the prosecutor and a similar one by defense counsel, the trial court agreed to ask Ms. Vasanski a more open-ended question: "I want to ask you whether or not you have formed any opinion or any view in favor of or against the imposition of the death penalty." She responded: "I haven't formed any opinion." The court rephrased the question: "You haven't formed any at this point?" She simply replied: "No." The court pressed further asking "Have you given it any thought at all?" Ms. Vasanski answered, "No, I haven't." Responding to defense counsel's request for more information regarding the circumstances that the juror might find appropriate for the death penalty, the trial court informed the jurors that the defendant was charged with "murder, robbery, rape, and burglary," and then asked each potential juror if his or her knowledge of the charges "would . . . in any way influence their decision as to the imposition of death or nonimposition of death."

Following these rather tentative early questions, the court settled on the following death qualification procedure for Ms. Vasanski and subsequent venirepersons. First, the court presented the candidate with four possible positions he or she might hold on the death penalty: "you may believe that a death

penalty should never be imposed"; "[y]ou may believe that a death penalty should always be imposed if a defendant is found guilty of murder"; "[y]ou may believe that the death penalty is proper in some cases, but not in others"; and "you may not have formed an opinion. . . ." Next, each potential juror was asked to state his or her opinion, and follow-up questions were then asked based on that answer. Based on this procedure, Ms. Vasanski indicated that the death penalty could be imposed under appropriate circumstances.

The trial court then followed up: "But you feel that, all right, if you think or believe that under certain circumstances it would be appropriate to impose the death penalty, is that what you're indicating?"

MS. VASANSKI: Yes.

THE COURT: Now, would you, with that view in mind, agree that you would not automatically impose the death penalty, regardless of the evidence presented in the case?

MS. VASANSKI: Yes, I would.

THE COURT: And although you are, from your indication, in favor of the death penalty under certain circumstances, should the facts warrant it, would you be able to reject the death sentence and impose a prison sentence?

MS. VASANSKI: Yes.

Defendant objects to the voir dire because the procedure used by the trial court led to questions that prompted only yes or no responses from a prospective juror and therefore provided neither the prosecutor nor defense counsel with sufficient information to pick an unbiased jury. Moreover, defendant argues that the trial court repeatedly refused to ask follow-up questions requested by counsel in order to further explain the yes or no answers. Based on an independent review of the voir dire, we find that the trial court relied much too heavily on closed-ended questions, and on several occasions did not ask adequate follow-up questions to overcome the inadequacy of the initial inquiry.

The questioning of Ms. Vasanski illustrates the closed nature of the inquiry and the failure of the voir dire to elicit responses that indicate in specific terms what Ms. Vasanski's opinion or

attitude about the death penalty was. In addition to its closed nature, the tenor of the questions often appears to lead the juror inevitably to the "correct" response. To ask the juror whether she would "automatically impose the death penalty, regardless of the evidence in the case," is to predetermine the answer; indeed without more careful phrasing it is to ask whether a mere indictment for capital murder automatically warrants the death penalty.

Another instance that illustrates the deficiency of the form and substance of the trial court's voir dire is the questioning of juror Malloy. Mr. Malloy was asked by the trial court: "Could you tell me, please, what is your view of the death penalty?"

MR. MALLOY: Well, only in certain situations, the third.

THE COURT: The third choice?

MR. MALLOY: Yes.

THE COURT: In other words, you are in that category that the death penalty may be proper under certain circumstances, and it may not be proper under other circumstances, is that what you're indicating.

MR. MALLOY: Correct.

THE COURT: . . . . Should the jury find the defendant guilty of a knowing or purposeful killing, and a sentencing stage be required in this matter to determine if the penalty shall be death or a life sentence as I indicated, and knowing that your view as you've just indicated on the imposition of the death penalty, and also knowing that you are required to consider any additional evidence concerning the appropriate sentence to be imposed, that is either death or life in prison, would you automatically impose the death penalty or would you consider imposing a sentence of life in prison and reject the death penalty if the facts would warrant that position?

MR. MALLOY: Yes.

With that most ambiguous response, the death qualification of Mr. Malloy was ended. Not surprisingly, defense counsel sought clarification of Mr. Malloy's views since he had answered an either/or question with a yes response.*fn8 The trial court

emphatically rejected defense counsel's request because Mr. Malloy's "answers were certainly very forthright, direct and clear." Defendant ultimately challenged Mr. Malloy peremptorily.

Despite the deference normally accorded the trial court in assessing the demeanor and responses of potential jurors, see State v. Singletary, supra, 80 N.J. at 62-64 our reading of this admittedly cold record leaves us no choice but to find that insufficient information was elicited from Mr. Malloy to evaluate properly his fitness to serve. Our conclusion does not constitute second-guessing of the trial court's determination, based on Mr. Malloy's credibility, that the juror was "forthright, direct and clear," but rather constitutes a finding that the substance of the elicited information -- yes or no answers to broad general questions and the selection of category 3 -- left both counsel and the trial court unable to evaluate Mr. Malloy's fitness to serve on the jury. Moreover, the paucity and narrowness of the responses left both the defense and the prosecutor unable to exercise peremptory challenges intelligently.

A further example cited by defendant to support his claim is the voir dire of prospective juror Reade. The voir dire concerning death qualification went as follows:

THE COURT: Now, before I discuss your views on the death penalty, I want to review with you in general terms the charges under this indictment and they are murder. And under that charge, the State is seeking the death penalty. There are other charges under the indictment of robbery, rape and burglary.

Now, is there anything in the nature of those charges alone that would prevent you from sitting as a juror in this case?

MR. READE: No

The trial court then presented the four possible death penalty ...


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