On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. The opinion of the Court was delivered by O'Hern, J. Handler, J., concurring. Handler, J., concurring in the result.
Child abuse is not just a sociological phenomenon; it can be murder, and it can be capital murder. The question here is whether this is a capital murder case. In State v. McCrary, 97 N.J. 132 (1984), we approved, in limited circumstances, pretrial review of the factual basis for the statutory aggravating factors that the prosecutor seeks to use to establish death eligibility under New Jersey's capital punishment act, N.J.S.A. 2C:11-3. This interlocutory appeal requires us to review an application of the McCrary procedures in light of our subsequent decisions in State v. Biegenwald, 106 N.J. 13 (1987), and State v. Ramseur, 106 N.J. 123 (1987), in which we determined the constitutionality of the capital punishment act and established standards for its application. Specifically, we must determine whether a factual basis was presented to charge the defendant with murder that involved "aggravated assault" or "torture" of the infant child in his custody.
First, we review the Court's definition of the "aggravated assault/torture" element of N.J.S.A. 2C:11-3c(4)(c). Then we consider the threshold measure of proof required under the principles of State v. McCrary to determine whether a case may be prosecuted as a capital case. Finally, we determine whether the proofs meet the McCrary threshold.
In Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), the Supreme Court upheld the Georgia capital sentencing statute, concluding that the statute contained safeguards that promised to eliminate the constitutional defects that previously had resulted in death sentences that were "wantonly and * * * freakishly imposed," and "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Furman v. Georgia, 408 U.S. 238, 309-10, 92 S. Ct. 2726, 2762-63, 33 L. Ed. 2d 346, 390 (1972) (Stewart, J., concurring). In Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct.
2733, 2744, 77 L. Ed. 2d 235, 251 (1983), the Court explained that although no specific set of procedures had been set down to satisfy the concerns of Furman, it found that "[t]he Georgia scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage."
In New Jersey, the categorical narrowing is established by limiting capital punishment to murders specified in N.J.S.A. 2C:11-3c and by requiring at least one of the aggravating factors set forth in 2C:11-3c(4). This categorical narrowing must be based on standards that will withstand a claim of vagueness.
Section c(4)(c) lists as one of the aggravating factors that "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim."*fn1 Recognizing that we must provide each sentencing jury with specific guidance concerning the nature of the crimes that will satisfy the statute, in State v. Ramseur, supra, 106 N.J. at 197-211, Chief Justice Wilentz set forth the Court's understanding of the legislative meaning of this aggravating factor. In that case and in State v. Biegenwald, supra, 106 N.J. at 48-52, we confined the meaning of the statutory phrase "murder [that] was outrageously or wantonly vile, horrible or inhuman" to the second portion of the statutory provision, i.e., murders that "involve torture, depravity of mind, or an aggravated battery to the victim." N.J.S.A. 2C:11-3c(4)(c). In Ramseur and Biegenwald this Court elaborated on the meaning of each of these subsidiary considerations.
Reasoning that the Legislature had intended that the most accurate measure of criminal culpability was the state of the
actor's mind, we interpreted factor c(4)(c) in that light. Hence, the c(4)(c) elements of aggravated assault and torture are limited to "the class of murders in which defendant intended to, and did in fact, cause extreme physical or mental suffering -- in addition to death. * * * Thus, the extreme physical or mental suffering must be precisely what defendant wanted to occur in addition to death." Ramseur, supra, 106 N.J. at 208-09 (footnote omitted). Thus viewed, we reasoned that the requirement that the defendant intentionally inflict extreme physical or emotional pain in addition to death eliminates the need for a distinction between the statutory terms "aggravated assault" and "torture." "We are convinced that the essence of the legislative concern is the defendant's state of mind." Id. at 207. We concluded that the Legislature's concern, as evident in the aggravated assault/torture element of c(4)(c) was "to punish most harshly those who intend to inflict pain, harm, and suffering -- in addition to intending death." Id. at 208.
The depravity-of-mind element of c(4)(c) is established by the senselessness of the killing, i.e., "the complete absence -- from society's point of view -- of any of the recognizable motivations or emotions that ordinarily explain murder. The definition of this kind of murder is not vague." Id. at 210. Such a killer is one "who does it because he likes it, perhaps even because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder * * *." Id. at 209 (footnote omitted). It included as well one who intentionally mutilates a corpse. Id. at n. 37.
Concededly, there is hardly ever direct evidence of an actor's state of mind, but the intent to torture or inflict gratuitous pain may be inferred from the circumstances of the crime. For example, in State v. Ramseur, the defendant's vengeful act in coming back to inflict additional stab wounds on the dying victim, combined with his own statements, well demonstrated his intent to inflict needless suffering on the already dying victim. 106 N.J. at 288. In State v. Zola, 112 N.J. 384, 434
(1988), we observed that the scalding or stabbing of the body of the strangled victim could establish either an intent to inflict nonlethal, purposeful torment or a senseless desecration of the victim's body. In sum it is the evidence of intent to inflict extreme pain, harm, and suffering, in addition to causing death, that establishes the c(4)(c) element of aggravated assault/torture and the constitutional narrowing of intentional murders that are death-eligible.
Under the New Jersey Code of Criminal Justice, a defendant convicted of purposeful or knowing murder can be sentenced to death only if one or more statutorily-specified aggravating factors exist and outweigh, beyond a reasonable doubt, any mitigating factors. N.J.S.A. 2C:11-3c(3). The Code requires that the prosecuting attorney give the defendant notice of any aggravating factor that he intends to prove either "[p]rior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor." N.J.S.A. 2C:11-3c(2)(e). In adopting our Rules to implement the capital-sentencing act, we required the prosecutor to give the notice of aggravating factors and supporting discovery to the defendant at the time of arraignment. R. 3:13-4(a). In State v. McCrary, supra, 97 N.J. at 141, we noted the extraordinary difference between a capital case and a noncapital case: the death qualification of the jurors, the requirement of an entirely distinct sentencing phase, the gathering of proof and extensive investigation into the defendant's background for presentation of mitigating factors are unique to the capital trial. Most importantly, we concluded that "the specter of death should not hang over the head of an accused without some basis in fact." Ibid.
Hence we approved, in limited circumstances, pretrial review of the validity of the aggravating factors asserted. Recognizing the broad charging discretion of prosecutors, we sought to
fetter it only to the extent necessary to protect a defendant's rights. We have since recommended that the Attorney General and the various County Prosecutors, in consultation with the Public Defender, adopt guidelines for use throughout the State by prosecutors in determining the selection of capital cases. State v. Koedatich, 112 N.J. 225, 258 (1988), cert. denied, U.S. , 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). This case follows too closely upon that decision to reflect the results of such a process. In the absence of further guidance, we will apply the standard of review adopted in McCrary. The standard was similar to that applied in striking an indictment, a discretion not to be exercised except on "the clearest and plainest ground." Id. 97 N.J. at 144 (quoting State v. Davidson, 116 N.J.L. 325, 328 (Sup.Ct.1936), quoted in State v. Weleck, 10 N.J. 355, 364 (1952)). The defendant must "demonstrate that evidence is clearly lacking to support the charge." McCrary, supra, 97 N.J. at 142. The procedure that we envisioned does not require the prosecutor to prove his case before trial: "[i]t does no more than serve to assure that there is some evidence that justifies the submission of the specified aggravating factors to the trier of fact * * *." Id. at 143. We emphasized that there was not to be a trial within a trial and an order for the production of testimony would be the exception to the rule. Id. at 144. While there has been some question of the fairness of requiring the defendant to prove the absence of evidence to support the factors, the present case rather clearly demonstrates the ease with which the basic question is resolved. The State furnished defendant with its pathological reports, grand jury minutes, and the defendant's own confession. It is the measure of this evidence that we address.
Is there, then, "some evidence that justified the submission" of the aggravated assault/torture element of c(4)(c) to the trier of fact? This case evokes the same horrors that society has witnessed all too frequently in recent years. In New Jersey
alone, twenty-four children died of abuse last year. Patterson, "Deaths from child abuse, neglect increase to record levels in state," Star-Ledger, Feb. 1, 1989, at 1. Regrettably, it is also true that many fatal child-abuse cases involve the kind of torture of the victim that characterizes capital murder. See State v. Bass, 221 N.J. Super. 466 (App.Div.1987) (multiple lacerations, burn marks, and recent fractures). The question in this case is whether there is evidence, circumstantial or direct, that would establish the defendant's intent to inflict on his child extreme pain and torment in addition to the fatal blows that caused her death.
The evidence presented is that on October 7, 1987, the defendant called the police to summon the rescue squad for his four-month-old daughter, Heather Matulewicz. Defendant told the responding officer that Heather had vomited on herself and while he was attempting to bathe and change the baby, she had slipped from his arms, fallen to the floor and struck the back of her head. When defendant's attempts at CPR failed, he summoned the police. Heather was taken to the pediatric intensive care unit at the Robert Wood Johnson Hospital.
The responding officer became suspicious when he noticed an unexplained bruise on the baby's forehead. A detective from the Major Crimes Unit of the prosecutor's office went to the hospital, where he observed a bruise on Heather's right hip-buttock area. Discussion with a social worker revealed that Heather had previously been hospitalized for head injuries in June 1987. He obtained a search warrant for defendant's apartment, but he found no evidence that the child had been sick or bathed to corroborate defendant's story.
The defendant was advised of his Miranda rights, waived them, and agreed to respond to questioning by a member of the prosecutor's office. Defendant admitted lying to the responding officer, and confessed to striking blows to the baby's head, forcefully throwing her into her crib, and then ...