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State v. Hunt

Decided: June 9, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES I. HUNT, DEFENDANT-APPELLANT



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

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

Pollock

Defendant, James I. Hunt, was convicted by a jury of murder and sentenced to death. He filed a direct appeal challenging both the conviction and the sentence. R. 2:2-1(a)(3). We affirm defendant's conviction for murder, but we reverse the imposition of the death penalty.

We hold that in the penalty phase the trial court failed to instruct the jury that it must be convinced beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. State v. Biegenwald, 106 N.J. 13, 63-67 (1987) (Biegenwald II). Additionally, the charge on the aggravating factor described in N.J.S.A. 2C:11-3c(4)(c) (subsequently described as section "c(4)(c)") erroneously directed the jury to determine whether defendant's conduct was "outrageously or wantonly

vile, horrible or inhuman," and not whether it "involved torture, depravity of mind, or an aggravated battery to the victim." See State v. Ramseur, 106 N.J. 123 (1987). Finally, the trial court failed to determine, contrary to N.J.S.A. 2C:11-3b, if the jury had reached a final verdict when it advised the court that it could not agree on the imposition of the death penalty. Because the jury may have been unable to agree that defendant should be put to death, he may not again be subjected to the death penalty. Consequently, we remand the matter to the Law Division for the imposition of a non-capital sentence pursuant to N.J.S.A. 2C:11-3b. In light of our determination that defendant may not be subject to the death penalty, we find to be harmless error the trial court's failure to instruct the jury that it must find that defendant knowingly or purposely caused death and not that he intended to cause serious bodily harm resulting in death. See State v. Gerald, 113 N.J. 40, 69 (1988).

I

FACTS

During the morning of December 2, 1982, the victim, Edward Lawson, and Charlotte Hunt were watching television in their sixth-floor apartment at 306 Cooper Street, Camden. Charlotte Hunt was defendant's sister, as well as Lawson's live-in companion and the mother of his infant son. Around 12:30 p.m., Lawson, who had taken some prescribed medication, fell asleep.

About this time, Harold Hunt, defendant's cousin, left his apartment located at 311 Cooper Street, across the street from Lawson's apartment. Harold was crossing the street when co-defendant, Kenneth Thompson, attempted to speak with him about Charlotte, whom Thompson believed to be Harold's sister. Harold informed Thompson that Charlotte was his cousin, not his sister, and then shouted to defendant, who was living in Harold's second-floor apartment. Defendant left the apartment and joined Harold and Thompson. Harold left, and Thompson, who apparently had never before met defendant, told him that

Charlotte had been looking for defendant three days earlier on November 29, 1982, because Lawson had beaten her.

Defendant asked Thompson to go to Charlotte's apartment and ask her if she would leave to talk to defendant. While Thompson went upstairs to get Charlotte, defendant returned to his apartment and entered the kitchen, where Patricia Fennell, Harold Hunt's live-in girl friend, was preparing food. Defendant opened the dresser in which Fennell kept her cooking utensils and grabbed a silver knife. According to Fennell, as defendant grabbed the knife, he said, "I told this motherfucker about fucking with my sister." From the kitchen, Fennell saw defendant run across the street to 306 Cooper Street, where Charlotte and Lawson lived.

Fennell rushed across the street, and on reaching the sixth floor, saw Thompson holding a knife and heard him say to defendant, "[c]ome on Man, we got to go. I'm going on up here and do what I got to do." Defendant replied, "I know what I got to do." Fennell, who also heard Thompson complain that Lawson had refused to sell him valium, attempted to defuse the situation by telling defendant that Charlotte would return to Lawson no matter what happened. Charlotte, who had left her apartment, joined the group in the hallway. On noticing his sister's broken lip, defendant expressed anger about Lawson's abuse of her. At this point, Fennell left, realizing that she could not dissuade defendant. Shortly thereafter, about 2:00 p.m., defendant and Thompson pushed their way into Charlotte's apartment and told her to leave. She pleaded with them to leave Lawson alone because he was still groggy and unable to defend himself. Nevertheless, defendant and Thompson awakened Lawson and began to scuffle with him. Charlotte unsuccessfully yelled at them to stop and threatened to call the police. As she grabbed her baby and fled for help, Charlotte saw defendant with a knife in his hand moving toward Lawson, whom Thompson was holding.

Approximately one half-hour later, at about 2:30 p.m., Lucille Taylor, Thompson's live-in girl friend, was watching television in the bedroom of their fourth-floor apartment at 306 Cooper Street when Hunt burst into the room, followed by Thompson. When defendant entered the room, he was holding a knife. Taylor noticed blood all over Hunt's clothing, his face and hands, as well as the knife. At one point, defendant exclaimed, "I killed him. I broke the knife in him." Thompson told Taylor to get some clean clothes for defendant and some trash bags. According to a statement Taylor made to the police on December 2, after defendant left the room and entered the bathroom to clean up and change his clothes, Thompson said "he [as if referring to himself] just killed a nigger."

After both defendant and Thompson had changed their clothes and washed themselves, they put their blood-stained clothes and knives into trash bags. According to Taylor's statement, Thompson threw his bag onto the roof of the building next to 306 Cooper Street, and Hunt threw his bag into a dumpster behind the apartment building.

In the interim, at approximately 2:10 p.m., Charlotte had found the building manager, Willie Hannah, who called the police and then ran upstairs to Lawson's apartment, where he found Lawson slumped behind the bathroom door. When the emergency medical team arrived at approximately 2:30 p.m., Hannah left Lawson's apartment and discovered Charlotte in the hallway crying hysterically. In response to Hannah's questioning, Charlotte initially said that four men had beaten Lawson, but she later admitted that defendant and Thompson were the assailants.

When the emergency medical technicians located Lawson's body behind the bathroom door, it was still warm but showed no vital signs. The technicians noted multiple stab wounds on Lawson's body. Blood frothing from his mouth indicated internal bleeding. The technicians also found about one and one-half pints of blood in a baby bathtub near Lawson.

The pathologist who performed the autopsy, Dr. Catherman, testified that the cause of death was loss of blood due to multiple stab wounds. Although Dr. Catherman could not determine how long it took for Lawson to bleed to death, he suggested a period of ten to twenty minutes, depending on the rapidity of Lawson's heartbeat, which would have determined how rapidly he lost blood.

The following day, when the police and a representative of the Camden County Prosecutor's Office returned to 306 Cooper Street, Taylor led them to the roof and to the dumpster. They found the bag containing Thompson's clothing on the roof and defendant's clothing in the dumpster. The police also recovered two knives and one handle.

Indictment

Two months later, on February 17, 1983, defendant and Thompson were indicted for Lawson's murder and other offenses. A superseding indictment charged both defendants with the following offenses: knowing murder, contrary to N.J.S.A. 2C:11-3(a)(2); conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2; hindering the apprehension or prosecution of each other, contrary to N.J.S.A. 2C:29-3(a)(3); unlawfully entering Lawson's apartment for the purpose of committing an offense therein, contrary to N.J.S.A. 2C:18-2; and possessing a weapon, a knife, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. Both defendants were also charged with committing knowing murder by their own conduct, contrary to N.J.S.A. 2C:11-3(a)(2).

The court denied as unnecessary the defendants' and prosecution's motions for an order precluding peremptory challenges based on race. Also, the court denied defendants' motions requiring attorney-conducted voir dire, objecting to death qualifying the jury, requesting dismissal of the indictment because of the alleged unconstitutionality of the death penalty, and requesting that aggravating factor c(4)(c) be stricken as unconstitutionally

vague. In response to another defense motion, the court reserved ruling on the admissibility of Thompson's out-of-court statement implicating defendant, and later denied defendant's motion for a severance of his trial from Thompson's. Subsequently, the court ruled that evidence relating to a prior stabbing incident between defendant and Lawson would be admissible pursuant to Evidence Rule 55, to establish motive or intent. The court also denied defendant's motion for more information why aggravating factor c(4)(c) applied to his case. Finally, the court denied defendant's motion to dismiss the charge of hindering Thompson's apprehension, as well as the State's motion to amend the indictment to charge defendant and Thompson with hindering their own apprehension, contrary to N.J.S.A. 2C:29-3b.

Trial

Defendant and Thompson were tried jointly in a trial that lasted from January 23 through February 15, 1984. The trial court employed a struck-jury system and preliminarily qualified fifty-two jurors, ten of whom were excused by the defendants and twelve by the prosecution.

1. Guilt Phase

The trial testimony generally supported the previously-mentioned facts. On its case, the State produced fifteen witnesses, including Willie Hannah, Patricia Fennell, Lucille Taylor, and Charlotte Hunt. Charlotte's testimony conflicted with her prior statements under oath to the police. She denied that defendant and Thompson pushed their way into her apartment and that defendant approached Lawson with a knife in his hand. Her statements to the police, therefore, were admitted into evidence under Evidence Rule 63(1)(a) as prior inconsistent statements.

Taylor testified that while defendant was in her apartment's bathroom changing his clothes, Thompson said to her, "this nigger just killed a nigger on the sixth floor." This testimony

conflicted with her prior statement to the police, in which she stated that Thompson, as if referring to himself, had said that "he just killed a nigger." At trial, Taylor insisted that "he" referred not to Thompson but to defendant. Thompson, who entered into an agreement with the State in which he pled to non-capital murder, testified as a rebuttal witness for the State. Thompson testified that after unsuccessfully trying to stop defendant, he saw defendant stab Lawson to death.

Patricia Fennell testified that in October 1982, approximately two months before the murder, she witnessed an argument between Lawson and defendant, in which defendant accused Lawson of beating Charlotte. According to Fennell, Lawson reached into his pocket, and defendant responded by stabbing Lawson in the left arm.

Through expert testimony, the State established that there were twenty-four knife wounds on the victim, that some of the wounds were consistent with the use of the knife that defendant had taken from Fennell's apartment, and that others were consistent with the knife Thompson had been seen holding. An enzyme analysis of the blood stains on defendant's clothing revealed that the blood was neither defendant's nor Thompson's, and that there was only a one in 13,000 chance that it came from someone other than Lawson.

In his defense, the defendant denied killing Lawson. Testifying on his own behalf, defendant admitted appearing at Lawson's apartment with a knife, but claimed that Fennell dissuaded him from confronting Lawson. Instead, according to defendant's testimony, he dropped the knife, left the apartment, and went to buy a beer.

In summation, defense counsel argued in the alternative that defendant had not killed Lawson, and even if the evidence established beyond a reasonable doubt that defendant had killed Lawson, the evidence established reasonable provocation, and therefore defendant should be convicted only of manslaughter. Specifically, the defense argued that defendant was

reasonably angered immediately prior to the homicide when he learned from Thompson that Lawson had been beating his sister, information that was confirmed by bruises on Charlotte's face.

The jury returned a verdict convicting defendant on all counts, including murder by his own conduct.

2. Sentencing Phase

Defendant sought to prove four mitigating factors: first, that he was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(a); second, his age, twenty-two, at the time of the murder, N.J.S.A. 2C:11-3c(5)(c); third, that he had no significant history of prior criminal activity, N.J.S.A. 2C:11-3c(5)(f); and fourth, that he was devoted to his family, had an extensive work history, and that other factors relevant to his character, record, and the circumstances of the offense were such as to mitigate the imposition of the death penalty, N.J.S.A. 2C:11-3c(5)(h).

In support of those mitigating factors, defendant, his brother, and his mother testified that he was devoted to his family and was a reliable worker. A psychologist, Dr. Jerome Platt, testified in support of defendant's assertion that he was under extreme mental or emotional disturbance at the time of the offense. Dr. Platt recited that defendant has a limited intellectual capacity and suffers from a personality disorder that causes him to explode and strike out blindly in uncontrolled rage when he feels his family is threatened.

To support its request for the imposition of the death penalty, the State relied solely on aggravating factor c(4)(c). The State relied on the evidence adduced during the guilt phase and offered no additional proof on the penalty phase.

In its charge on aggravating factor c(4)(c), the court instructed the jury that it must "unanimously be convinced beyond a reasonable doubt that this murder involved torture or conduct

by the defendant which indicated a depraved mind." The court further charged the jury that if it did not unanimously find that the mitigating factors outweighed the aggravating factor, defendant would be sentenced to death. Following a conference with counsel, the court emphasized that it was important for the jury to attempt to reach a unanimous verdict.

The jury retired at 10:51 a.m., and at 2:45 p.m. sent a note to the trial court indicating it could not reach a unanimous decision on balancing the mitigating factors with the sole aggravating factor. After discussing the note with counsel, the trial court sent a note to the jury stating, "I've received your question. Please continue with your deliberations." At 4:35 p.m., the jury reached a verdict, finding that aggravating factor c(4)(c) and all four of the mitigating factors existed. Further, the jury found that the mitigating factors did not outweigh the aggravating factor. Accordingly, the court sentenced the defendant to death. See N.J.S.A. 2C:11-3c(3)(b).

II

PRE-TRIAL ISSUES

A. Voir Dire

1. Attorney-Conducted Voir Dire

Initially, defendant contends that the convictions should be reversed because the trial court's refusal to permit attorney-conducted voir dire violated defendant's right to an impartial jury, to freedom from cruel and unusual punishment, and to due process of law. We rejected this argument in Biegenwald II, supra, 106 N.J. at 29-30.

Defendant argues that in Biegenwald II we did not adequately consider social science research allegedly demonstrating that a judge-conducted voir dire is inadequate to produce an impartial jury. We remain unpersuaded, however, that attorney-conducted voir dire is constitutionally required.

In this case, the trial court solicited questions from counsel and included most of the questions submitted by defense counsel in the questionnaire distributed to each potential juror. Moreover, after completing the initial questioning of each juror, the court asked counsel whether they wanted it to ask further questions. In many instances, the court accepted counsel's suggestions and conducted further questioning of the jurors. We find no reason to disturb the procedure followed by the court.

2. The Overall Adequacy of Voir Dire

Defendant next argues that even if the trial court was not constitutionally required to permit attorney-conducted voir dire, its questioning of the jurors was so inadequate as to violate defendant's federal and state constitutional rights to a fair trial. We disagree.

An impartial jury is, of course, a necessary condition to a fair trial, and a voir dire designed to expose potential bias is essential to ensure an impartial jury. State v. Williams (Williams II), 113 N.J. 393 (1988). Generally, moreover, an appellate court should defer to the trial court's decisions about the voir dire. Id. at 410; State v. Singletary, 80 N.J. 55, 62-64 (1979).

In the instant case, before seating or questioning a potential juror, the court required each juror to complete a questionnaire outlining his or her occupation, as well as familiarity with the case, experience with the criminal justice system, and prior relationship with any of the participants. Before commencing the individual questioning, the court instructed the panel about the presumption of innocence and the general structure of a bifurcated capital trial. The court then conducted the voir dire on the basis of the responses to the written questions. Next, the court questioned each juror on his or her opinion of the death penalty. Finally, the court asked the juror whether or not he or she believed that every murder is outrageously or wantonly vile, horrible, or inhumane, and whether or not the

juror believed that evidence of a prior criminal conviction suggested that a defendant was guilty of the offense with which he or she was charged. The court then asked counsel to propose further questions, and submitted many of the proposed questions to the jurors.

To support the claim that the trial court's voir dire was inadequate, defendant points to the questioning of three jurors: Gerald Siefring, Julius DiGiacomo, and Ethel Brush. Defendant claims that the court did not sufficiently interrogate juror Siefring, a former postal inspector, about his prior relationship with possible police witnesses or about his relationship with his brother, who is a patrolman with the Delaware River Port Authority, or his uncle, who is a detective with the Camden County Prosecutor's Office. In response to a question from the court, Siefring stated that he would more readily believe the police officers whom he knew. On further probing, however, the juror stated that he would evaluate the facts objectively and not necessarily give the police the benefit of the doubt. The juror also stated that the fact his brother and uncle worked in law enforcement would not subject him to pressure to find the defendants guilty. Finally, the juror indicated that he had met the prosecutor once about six or seven years ago when the prosecutor was investigating a mail fraud case. On further questioning, however, he indicated these facts would not affect his ability to determine the matter fairly.

After the court finished questioning juror Siefring, Hunt's defense counsel stated that he had no objection to the juror being preliminarily qualified. Thompson's attorney, however, unsuccessfully objected to the juror for cause. Defendant now points to the response by the trial court as indicative that the court improperly believed it could not reject the juror's claim of impartiality:

THE COURT: All right. Well, the Court is not willing to make a judgment as to whether this person is telling the truth. And you will look at the facts from your point of view. The prosecutor is looking at them from another point of view. My point of view is whether I can rule as a matter of law that he was not

a proper juror. And based upon that which is expressed upon that record, I do not conclude that I can so rule. Of course, that is the reason that we have the peremptory challenge, and I have curbed him in response to the question so that you could have enough facts before you to make intelligent choices as to whether to keep him.

The fact remains, however, that the juror, in response to probing questions from the court, repeatedly asserted his ability to be impartial. We are satisfied that the trial court did not abuse its discretion in concluding that Siefring could be impartial.

Defendant also alleges that the voir dire of juror DiGiacomo was insufficient to reveal that juror's potential bias. Specifically, defendant claims that the trial court erroneously denied defense counsel's motion to dismiss this juror for cause when the juror indicated that he believed that evidence of a prior conviction suggested that a defendant was guilty of the present charge. The trial court, however, instructed the juror that his function is "to listen to evidence and then decide whether the defendant is guilty of the charge that he is presently before you on and not what he did [in the past]." In response, the juror stated that he would follow the instruction. Although the trial court denied defense counsel's motion to excuse the juror, it granted a similar motion by the State because of the juror's bias against the government. We find no merit in defendant's contention that the voir dire of this juror was inadequate and that the trial court wrongly refused to excuse the juror for cause for the reason asserted by defendant.

Finally, defendant challenges the voir dire of juror Brush as insufficient to assess her impartiality because she equivocated about the presumption of innocence. Following the court's questioning of this juror, Thompson's attorney urged the court to ask the juror if she believed that a defendant is more likely guilty because he or she is charged with murder in a capital-penalty case. The court refused because it believed that the question already had been answered in the negative.

When conducting a follow-up examination of the juror, however, the court closely questioned her regarding the presumption of innocence. Because the juror's responses indicated that she would not afford defendants the presumption of innocence, the court granted defense counsel's motion to excuse the juror for cause. The court's conduct lends no support to the proposition that the voir dire was inadequate.

In sum, we believe that the court's voir dire interrogation was sufficiently probing to expose potential bias of the jurors. Although the interrogation was less searching than that requested by counsel, we are satisfied that the voir dire was sufficiently thorough to assure the selection of an impartial jury. Biegenwald II, supra, 106 N.J. at 29.

3. Death Qualification

Defendant challenges the voir dire of certain jurors as inadequate to disclose "whether jurors would automatically vote for the death penalty [for all persons convicted of] murder." Again, we disagree.

In its initial instruction to the jurors, the court advised them that the defendants were entitled to the presumption of innocence, that the trial would be bifurcated, that the penalty phase would involve mitigating and aggravating factors, that the State's burden was to prove beyond a reasonable doubt the existence of an aggravating factor even before considering the appropriateness of the death penalty, and that the jury's responsibility was to weigh the aggravating factors against the mitigating factors. Defense counsel did not object to the trial court's description and does not point to any juror who was confused by these instructions. We find that the initial instructions were adequate.

In describing the death-qualification process, the trial court stated:

Like the general population in our county, the people, I'm sure on this panel, probably have widely differing opinions. Some of you may believe that a death

penalty should never be imposed no matter what crime a defendant committed. Others may believe that a death penalty could always be imposed if a defendant is found guilty of murder, no matter what the circumstances. Some of you may believe that the death penalty is proper in some cases but not others. Some of you may not have formed opinions on the subject. Having any of these views does not necessarily disqualify you from serving on this jury.

In order to save time, you will shortly receive a preliminary questionnaire which you should fill out. You will be asked under oath whether the answers to these preliminary questions are true. I will then question you on matters relating to some of those answers, especially with respect to your views concerning the imposition of a death penalty and other matters that may be appropriate to your serving as a juror in this case.

These instructions told the jurors to expect questions regarding their views on the death penalty without telling them "what answers during the death qualification process lead to automatic excusal and what responses avoid excusal." Williams II, supra, 113 N.J. at 412. Pointing to the voir dire of two venirepersons, Barbara Swartz and Evelyn Ebling, defendant contends that the trial court's inquiry into the jurors' opinions about the death penalty was insufficient to identify jurors who were excludable for cause.

The voir dire of Swartz concerning her views on the death penalty consisted of the following:

THE COURT: Do you have any religious, conscientious or personal scruples or opinions in opposition to capital punishment which would render you unable to return a verdict carrying the death penalty?

MS. SWARTZ: No.

THE COURT: Do you have any religious, conscientious or personal scruples or opinions in favor of capital punishment which would cause you to automatically impose a death sentence if a defendant is found guilty?

MS. SWARTZ: No.

THE COURT: Do you believe that every murder is committed in an outrageously or wantonly vile, horrible or inhumane manner?

MS. SWARTZ: No.

Following this questioning, neither defense counsel objected to Swartz for cause, and both told the court that they had no further questions.

With respect to juror Ebling, the court conducted the following inquiry into his views regarding the death penalty:

THE COURT: Do you have any fixed opinions concerning the crime of murder?

MR. EBLING: No.

THE COURT: Do you have any religious, conscientious or personal scruples or opinions in opposition to capital punishment which would render you unable to return a verdict carrying the death penalty?

MR. EBLING: No.

THE COURT: Do you have any religious, conscientious or personal scruples or opinions in favor of capital punishment which would cause you to automatically impose a death penalty?

MR. EBLING: No.

THE COURT: All right. Let me ask you this: Do you feel that if someone is convicted of a prior offense, he or she would more likely than not commit another offense?

MR. EBLING: No.

THE COURT: Do you believe that every murder is committed in an outrageously or wantonly vile, horrible or inhumane manner?

MR. EBLING: At times, I believe so.

THE COURT: Make sure you understand the question. There are a lot of murders. Do you have an opinion that all of those murders are committed in an outrageously or wantonly vile, horrible or inhumane manner?

MR. EBLING: No, I guess not.

THE COURT: I didn't hear you.

MR. EBLING: No.

THE COURT: Do you recognize that there may be murders of different severity?

MR. EBLING: Yes.

Although Thompson's attorney unsuccessfully requested further questioning, defendant's counsel stated that he had "no questions and no objections" regarding the juror's preliminary qualification.

In our recent decision in Williams II, we recognized that

[g]iven 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. [ Id. at 413.]

We continue to believe that trial courts should not rely on leading questions, but should formulate questions that give potential jurors the opportunity to air their views on the death penalty. Here, however, defendant's counsel declined the opportunity to request further questioning and did not object to the jurors' qualifications. Furthermore, the relatively limited voir dire of jurors Swartz and Ebling does not indicate the tenor of the trial court's questioning of other jurors. Although the court often began the death-qualification inquiry by simply asking whether the juror would automatically vote for or against the death penalty if a defendant was convicted of murder, it generally pursued an affirmative response with more detailed questioning. Furthermore, in numerous instances, the court asked jurors more open questions, such as "what is your opinion, if you have one, concerning the death penalty," or "what is your viewpoint concerning the death penalty." Although the voir dire may not have been perfect in all respects, we are satisfied that it was sufficient to enable counsel and the court to evaluate the jurors' fitness to serve.

Defendant also asserts that the court was not sufficiently responsive to counsel's request for follow-up questions regarding death qualification. For example, the court asked Thomas Galante if he had an opinion concerning the death penalty. Galante responded, "I am for the death penalty to a different degree * * *. Different things constitute the death penalty to me." At the request of Thompson's counsel, the court continued the voir dire of Galante:

THE COURT: I have been informed that I may have cut you off when I asked you a question.

MR. GALANTE: I don't recall.

THE COURT: Me either. What is your opinion of the death penalty, if you have one?

MR. GALANTE: My opinion of it?

THE COURT: Your opinion.

MR. GALANTE: Fine. For a violent crime, it has to be very violent. My opinion is what I get from reading about how you handle your crime, such as a husband shooting a wife, you call it a crime of passion. Sometimes it doesn't

warrant the death penalty. At least society has said that. That's what I mean by my opinions are what society's opinions are.

THE COURT: You are part of society and you make up the opinions.

MR. GALANTE: Yes.

Thus, the additional question elicited information that enabled counsel and the court to evaluate intelligently Galante's fitness to serve on the jury. Defendant's counsel did not object to Galante or to the other jurors challenged on this appeal. We find no reversible error in the trial court's questioning regarding death qualification.

Defendant's next challenge to the voir dire is that the trial court failed to provide five jurors with an adequate explanation of aggravating factor c(4)(c). In those five instances, the trial court asked the jurors, "Do you believe that every murder is committed in an outrageously or wantonly vile, horrible or inhumane manner?" Apparently the purpose of the question was to ascertain whether a juror could distinguish the commission of a murder that satisfied c(4)(c), which would subject the defendant to the death penalty, from one that would not. As discussed infra 385 to 388, the court erroneously described the essence of aggravating factor c(4)c. We do not believe, however, that the trial court's misstatement of law in this respect could have led to the improper seating of jurors.

4. Constitutionality of the Death-Qualification Process

Defendant argues that the death-qualification process, which required potential jurors to express their ability to return a death sentence prior to the guilt phase, deprived him of the right to an impartial jury. Of the eighty-eight potential jurors who were not excused for other reasons unrelated to their views on death penalty, twenty-two, or 25%, were excused because of their opposition to the death penalty, while only six, or 6.8%, were excused because they would automatically impose the death penalty on all persons convicted of murder. Defendant argues that the process produced a conviction-prone jury in the guilt phase. His point is that jurors should be death

qualified only after a murder conviction and prior to the penalty phase. We previously rejected this contention in Ramseur, supra, 106 N.J. at 248-54, in which we explain that the Death Penalty Act presupposes that the same jury that hears the guilt phase will hear the penalty phase. Accordingly, "the State is entitled to insist on a properly conducted interrogation of jurors prior to the guilt phase of a capital trial to determine whether their views on capital punishment will substantially interfere with the performance of their duties as jurors [in the guilt or penalty phase]." Id. at 254; accord State v. Bey (Bey II), 112 N.J. 123, 150 (1988); State v. Moore, 113 N.J. 239, 272 (1988); State v. Rose, 112 N.J. 454, 476-77 (1988); State v. Zola, 112 N.J. 384, 397-99 (1988); State v. Koedatich, 112 N.J. 225, 296-97 (1988). Contrary to the dissent, we are unpersuaded that new evidence shows the death-qualification process is unconstitutional under the State Constitution. Post at 392-403. We do not say that death qualification of jurors is constitutionally compelled, only that it is constitutionally permissible.

Defendant also contends that the death-qualification process improperly leaves jurors with the impression that the defendant is guilty of murder and that the only real dispute is over the appropriate punishment. In Williams II, we rejected this claim, provided that the trial court ascertains that each juror will apply the law and that each juror understands both the presumption of innocence and the State's burden to prove the defendant guilty beyond a reasonable doubt. 113 N.J. at 414 n. 6. We explained, "[s]ince a properly instructed jury can understand that death qualification is based on a hypothetical finding of guilt, and nothing more, we believe that the risk of prejudice to the guilt-innocence phase is minimal." Ibid. As in Williams, we reject defendant's contention on this point.

5. Witherspoon Excludables

Defendant contends that the trial court erred in excluding three jurors for cause under the standard set forth in Witherspoon

v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), as modified by 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). In Ramseur, we accepted the Adams-Witt modification of Witherspoon as the relevant standard for determining whether a juror's scruples concerning the death penalty prevents him or her from sitting in a capital case. 106 N.J. at 255-56. Under the Adams-Witt test, "a juror may not be challenged for cause based on his views about capital punishment unless those views 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. Prospective capital jurors need not aver that the gravity of the task will have no effect on their ability to perform their duties. Ramseur, supra, 106 N.J. at 256. Trial courts are granted "a sound measure of discretion" to determine whether a juror can discharge his or her duties or whether the juror's views on the death penalty would substantially impair his or her ability to perform those duties. Ibid. It is against these standards that we test the exclusion of the three jurors.

a. Juror Kanzler

When Kanzler was questioned by the trial court about her views regarding the death penalty, the following exchange occurred:

THE COURT: I would like to ask the question concerning your viewpoint of the death penalty.

MS. KANZLER: Well --

THE COURT: What is your opinion of the death penalty?

MS. KANZLER: For many years I thought if someone else took another person's life they should receive the death penalty, but now I have changed my philosophy and I think everyone is entitled to his life unless God takes it. So I wouldn't think of the death penalty.

THE COURT: All right. Let me ask you this: If you were selected as a juror and there was a finding by that jury, and I'm not talking about death now, I'm talking about whether or not the defendants are innocent or guilty. If the jury concluded that they were guilty of murder and then the jury goes into the second ...


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