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State v. Pitts

Decided: June 21, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRYL PITTS, DEFENDANT-APPELLANT



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

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

Stein

Defendant, Darryl Pitts, was tried and convicted by a Camden County jury of the murders of Paul Reynolds and Stacey Elizardo. He was also convicted of several offenses based on events that occurred two days prior to the murders. Defendant was sentenced to death for the murder of Stacey Elizardo; he was sentenced to life imprisonment with thirty-years parole ineligibility for the murder of Paul Reynolds. Defendant appeals directly to this Court as of right. R. 2:2-1(a)(3). We affirm his convictions for murder and the related offenses.

The Attorney General acknowledges that defendant's death sentence must be reversed because the trial court's instructions to the jury on the balancing of aggravating and mitigating factors did not comply with the standards established in State

v. Biegenwald, 106 N.J. 13, 53-67 (1987). We therefore set aside the death sentence and remand the matter to the trial court for a new sentencing proceeding.

I.

Facts and Procedural History

The twelve-count indictment returned against the defendant included six counts charging offenses relating to the murders of Paul Reynolds and Stacey Elizardo on March 22, 1984, in Reynolds' apartment. In the remaining six counts, defendant was charged with various crimes allegedly committed on March 20, 1984, at Elizardo's townhouse in Lindenwold, New Jersey. Accordingly, the factual background essential to an understanding of the legal issues in this case commences with the events that occurred during the evening of March 20, 1984. The evidence produced at trial fully supports the following account of the material facts.

On March 20, 1984, defendant, an unemployed Vietnam War veteran, was in Elizardo's townhouse. At her request, defendant was watching one of Elizardo's two children while she and Paul Reynolds took her other child to the hospital. According to defendant, he and Elizardo had dated many times. They had been sexually intimate. Defendant acknowledged his deep affection for Elizardo.

In the course of the evening two other male friends of Elizardo visited her townhouse. The first was Paul Pencock, who had lived with Elizardo earlier that winter. He had come by to see her, and defendant invited him to stay and await her return. He testified that defendant expressed anger because Elizardo was out late with Reynolds.

Soon after Pencock's arrival, Vincent Della Polla, another friend of Elizardo, called to speak to Brian Gallo who shared the townhouse with Elizardo and her children. Pitts, representing

himself to be Gallo, invited Della Pollo to the apartment. He arrived soon afterwards.

The three men discussed their feelings toward Elizardo while awaiting her return. Defendant stated that he loved her very much and questioned the other two about the depth of their affection for her. Pencock acknowledged that he also loved and cared about her; Della Polla told defendant that he cared for her but did not love her. Defendant's response to Della Polla was that he "shouldn't be here."

As time passed defendant became increasingly angry at Elizardo's failure to return home. Pitts blamed Reynolds for keeping her out late and said that he would "get" Reynolds. When Elizardo and Reynolds returned about 11:00 p.m., Pitts called her a "tramp" and demanded to know where she had been. Reynolds intervened and invited defendant into the living room to discuss his concerns, but defendant, glaring at Reynolds, did not leave the kitchen.

Defendant also made threatening statements to Elizardo, commenting that "it's getting closer to midnight." Elizardo told Della Polla that she interpreted defendant's words to mean that she would die at twelve o'clock. Elizardo then demanded that everyone leave the apartment. Suddenly, defendant grabbed a kitchen knife and held it against Della Polla's neck. He threatened to slit his throat, accusing Della Polla of having infected Elizardo with a venereal disease that she had subsequently transmitted to defendant. Della Polla pushed defendant away. Defendant then left the apartment with Pencock, who had offered to drive him home. Reynolds left at the same time, leaving Elizardo with Della Polla.

Pencock drove Pitts home and returned to Elizardo's apartment. According to Della Polla, Pitts telephoned Elizardo several times and made threatening remarks. This prompted Della Polla to offer to take Elizardo to his house. She refused, stating that "nobody is going to throw me out of my own house."

Shortly thereafter, defendant returned to the apartment and sat down at the kitchen table with Elizardo, Pencock, and Della Polla. Pitts was carrying a rifle with a pistol-type handle which he pointed at Della Polla saying, "We are going to talk." Pencock then told Della Polla to leave, and Della Polla walked out of the apartment. Pitts followed him out, as did Pencock. Pitts, holding the gun with his finger on the trigger, said he was going to shoot Della Polla. Pencock intervened, standing between Pitts and Della Polla, who then got into his car and drove away.

Pitts returned to the apartment waving the rifle, and directed his anger at Elizardo, calling her a "tramp" and a "whore." When Pencock attempted to take the rifle from defendant, it fell to the ground and discharged. Pencock picked up the weapon, removed the clip, which he placed in his pocket, and hid the rifle under the cushion of a couch. Subsequently, at defendant's insistence, Pencock returned the rifle to him without the clip.

Defendant, Pencock, and Elizardo remained in the apartment until about 5:00 a.m., when Pencock awakened her and told her that he had to leave. Elizardo assured Pencock that she would be safe in the apartment with defendant. Defendant left Elizardo's apartment the next morning. Pencock returned to Elizardo's apartment late in the afternoon of March 21, bringing with him the gun clip that defendant had asked Elizardo to retrieve for him. Pencock stayed at the apartment overnight. On Thursday morning, March 22, Paul Reynolds arrived, and he and Elizardo left the apartment together.

That same morning Pitts asked James Gibbs, his downstairs neighbor, to drive him on a few errands. Defendant offered to pay for gasoline and assured Gibbs they would return within forty-five minutes. They first drove to the apartment of Patricia Woods, defendant's former wife, but defendant observed that her car was not in the parking lot. They proceeded to a liquor store where Pitts purchased a six-pack of beer. Pitts

drank half of a bottle of beer as they drove to Paul Reynolds' apartment. Gibbs parked the car and waited while Pitts proceeded to Reynolds' apartment. Outside the apartment door Pitts encountered Michael Sarich who was visiting Reynolds to repay a debt. According to Sarich, a woman's shoes and coat were in plain view in Reynolds' living room. Sarich departed, leaving Reynolds and Pitts together in the apartment. The two quickly became engaged in a heated argument. Pitts, the only survivor of the ensuing encounter, has offered several different accounts of the events that followed.

In his first statement to police officers following his arrest, defendant attributed the murders of Reynolds and Elizardo to an unidentified male who was waiting at Reynolds' apartment door when Pitts arrived for the purpose of buying some marijuana. According to Pitts, the assailant "freaked," pulled out a knife, and stabbed Reynolds. He then stabbed Elizardo as she attempted to run from the apartment. Pitts said that his hands were smeared with blood when he attempted to render first aid. He denied responsibility for either homicide.

Defendant gave a second statement to the police at 2:10 a.m. on March 23, approximately an hour after he completed his first statement. In the second statement, Pitts acknowledged responsibility for both homicides. Pitts said that he and Reynolds argued about seven hundred dollars that Reynolds owed him.

They owed me. At that time they owed me seven hundred dollars and Paul's been holding and holding and holding and he's been bullshitting me * * *.

According to defendant, he then pulled out a black Army "survival" knife and cut Reynolds' throat:

He was cut but it wasn't severe enough but you can cut a human being and usually they'll stay alive three minutes. That's a known fact. According to you gentlemen, he was stabbed. All this is going on fast. This couldn't have taken no more than ten, 15 seconds. When [Stacey] came out of the room, what the fuck you doing, jerkoff, and on and on and on. I said because my fucking money is not in my hand and it went on. That's when I, you know, attacked her. * * *

[After Reynolds had fallen against the wall, Stacey] went into hysterics. And when the hysterics went down, that's when I fucked up * * *.

I guess originally it started as a struggle because I grabbed her and I tried to cut her throat. I told you before, you can use [the combat knife for] cutting someone's throat.

Defendant indicated that he twice attempted to cut Elizardo's throat, but did not recall stabbing any other part of her body. He stated that he "took the pulse" of both victims, and determined that both were dead.

Both of defendant's statements to the police were read to the jury during the guilt phase of the trial. When defendant testified at trial, he repudiated the explanation offered in his second statement to police that an argument over an unpaid debt provoked the homicides. Pitts testified at trial that he had gone to Reynolds' apartment to buy marijuana. He saw Elizardo's shoes and coat and asked to see her. Reynolds said that she was asleep, and indicated that she would not want to see Pitts. Pitts testified that he then accused Reynolds of encouraging Elizardo to engage in prostitution in order to earn money to pay for drugs that she purchased from Reynolds. According to Pitts, an argument erupted, the two shoved each other, and Reynolds demanded that Pitts leave. When he refused, Reynolds turned toward the bedroom and said that he was going to get a gun. Pitts then pulled out his knife and stabbed Reynolds. He described the assault as an "instantaneous like reflex." While occupied with Reynolds, and in a "frenzied-type state of mind," Pitts perceived an "image" behind him. According to Pitts' trial testimony:

[W]hereas, that now which I know Stacy was behind me, it was just an image at that time that I wheeled around and I sliced Stacy with the knife at the time * * *.

Pitts also testified that he loved Elizardo and was jealous of her relationships with other men. He explained that his second

statement to the police, in which he falsely attributed the murders to an unpaid debt, was prompted by a reluctance to admit to the police that he killed Reynolds because of his feelings for Elizardo. During cross-examination, Pitts said that he had the combat knife with him in order to take it to his mother's house, so that his son would not find it when he visited Pitts.

Dr. Gerald Cooke, a clinical and forensic psychiatrist who tested and evaluated the defendant, gave trial testimony that was corroborative of Pitts's trial version of the homicides. He testified that although Pitts was not psychotic or out of touch with reality,

he has some tendency towards loss of control or increased emotional stimulation. * * * [He] has more of a tendency to lose control than the average person when he is stressed, particularly if those stresses fit into these particular dynamics I have mentioned, such as rejection by women, things of that nature.

Dr. Cooke also testified that Pitts "showed a continuing preoccupation with Vietnam." Dr. Cooke reviewed his discussions with Pitts concerning his Vietnam service:

He was in combat in Vietnam and was wounded in combat. We talked about Vietnam. * * * He says that he felt that he accomplished more in one afternoon in Vietnam in a combat situation than he has done in his entire life since then, and I got a real sense that he feels like much of his life has been useless and without purpose since that time.

Dr. Cooke diagnosed defendant as having

a cyclothymic personality disorder. What that means is that he is an individual whose moods vary significantly over a time to a point where it disrupts his day-to-day functioning and at times he is maybe depressed significantly, and to[o] he may be hyperactive, manic.

This is a similar type of disorder, though [it] is not as severe as what people have referred to as manic depressive psychosis or manic depressive illness. He does not go to extremes as a manic depressive does, he does not lose day-to-day, at any rate, any kind of contact with reality the way a manic depressant might. But he has the same pattern in his behavior of having periods of days, weeks, months of depression and other periods where he is hyperactive, outgoing and shows his more impulsive and manicy sorts of behavior.

I also indicated that along with the cyclothymic personality disorder, superimposed on it he has a chronic anxiety disorder, and above-average level of anxiety on a chronic basis.

At trial, Dr. Cooke recounted the result of his interrogation of defendant concerning the homicides:

[He] doesn't remember, he says, reaching for the knife; he remembers having a knife in his hand, but he doesn't actually remember stabbing. He says he remembers wheeling around with somewhat of a slashing motion and does not remember any specific stabs after that. He says he does remember seeing blood and things of that nature.

He also then tells me that out of the corner of his eye he saw what at some times he described as an image, as a person, didn't know who it was, he says, didn't know if it was a male or female but had a feeling very much like the feeling that he had when he was in Vietnam, "I have to win, I have to survive, I am under attack," things of that nature.

I went into this with him in great detail; this is not a flashback into any specific incident, this is not like he is reliving a specific incident in Vietnam. I am not saying that. What I am saying, he had the general feeling under this stressful situation that he had had at times in Vietnam in just having to win, having to survive, having to strike out until there was no more motion around him. He said that he only afterwards realized that that was Stacy.

He told me he wheeled around and slashed at her, but then again not knowing it was her at that point and then again does not remember the stabbing itself. He does, he said something like he had a feeling he was hitting the person and he realized later that he must have been stabbing her.

He then said the next thing he knew, he saw her on the floor, knew it was her, there was blood everywhere. He said he experienced at that point, and this is a quote, "Like a stillness like in Vietnam after a firefight." He said at that point he began to realize what he had done.

Based on this evaluation of defendant and the defendant's account of the homicides, Dr. Cooke related his opinion about the defendant's state of mind at the time of the murders:

[U]nder that situation he experienced some of that feeling from Vietnam, not a specific flashback, but a feeling in which he perceives himself to be in danger, perceives himself as having to strike out to protect himself in part.

But even more important, that he had an emotional response there, an impulsive emotional response, not a response where he stopped and thought and decided, "I will do this, I will do that," but, rather, a loss of control under the influence of extreme emotions and what I would say, combining all that data, a rage reaction, a reaction in which his anger reached the point of rage, which I would define as an anger that goes out of control and an anger which interferes with the cognitive ability a person has, planning, judgment, recognizing consequences, deliberating, that in my opinion, he experiences such a loss of control.

Dr. Robert Segal, the Camden County Medical Examiner, testified that the deaths of both victims resulted from multiple stab wounds inflicted by a heavy-bladed knife with a single sharp edge and a square or blunted opposite edge, and that the Ka-Bar type knife offered into evidence by the State could have caused the wounds observed on the victims. Dr. Segal identified the following knife wounds on Reynolds' body: (1) left eye and cheek; (2) under the neck and extending towards the left ear; (3) base of the neck; (4) left front of the chest near the left nipple; (5) left side of the back; (6) inner left forearm; (7) right side of the head above the ear, which penetrated through the scalp, skull, and brain to strike the bone at the bottom of the skull. Dr. Segal testified that wound (4), which cut the right lung and the aorta, was if "[u]ntreated * * * a uniformly fatal wound[;]" he adjudged this wound, however, to be "part of the cause of death," which cause he identified as "multiple stab wounds of the head, neck, and trunk." In addition, Dr. Segal found abrasions, or scrapes, "on the chest, on the right eye-brow and on the left shoulder area."

From his examination of Elizardo's body, Dr. Segal observed "multiple stab wounds and multiple scrap[e]s o[r] abrasions over practically all portions of the body. The major portion of the right leg is spared, most of the back is spared." Specifically, the stab and slashing wounds were inflicted on: (1) the left cheek, continuing upwards to split the ear in half; (2) the throat, extending towards the ear; (3) the throat, also extending towards the ear; (4-6) three cuts on the left side of the head in the skull, two of which penetrated through the skull into the brain; (7-9) three stab wounds on the left side of the chest beginning beneath the left breast and extending to the side and downward; (10) back of the left shoulder; (11), (12) back of [left] arm; (13) [left] elbow; (14) back of [left] forearm; (15) index finger of left hand; (16) junction of left buttock and thigh; (17) lower left leg; (18) front of right arm; (19) above right elbow; (20) [right] forearm; (21) [right] hand; (22) and (23) midline of back of neck; (24) back of right shoulder.

Internal examination revealed a fractured third left rib and right humerus, a cut aorta, a cut esophagus, cut lungs, and blood in her lungs.

Dr. Segal also testified that he could recall "no specific description of any of the wounds [on the bodies] that would indicate clear and unequivocal evidence that [it had been inflicted] postmortem."

Defendant's neighbor James Gibbs, who had driven Pitts to Reynolds' apartment, gave testimony concerning the events that occurred after the homicides. He stated that he had heard screams from inside the apartment building. When Pitts returned to the car, he had blood on his hands and a knife concealed in his coat. He told Gibbs that Reynolds had "pulled a shotgun on him" and that he had killed Reynolds and Elizardo. According to Gibbs, Pitts said, "I cut her throat, you don't have to worry about her." When Gibbs questioned Pitts further about why the killings occurred, Pitts told Gibbs that "they owed me money." Gibbs testified that Pitts grinned and said, "[s]ee what I mean about paybacks is a bitch." Gibbs also noted that Pitts asked him if he would "stand up to these people if they question you and all."

Gibbs then drove Pitts to his mother's house in Hammonton. On the way, Pitts used beer to wash his hands of blood and threw some bloodstained papers out the car window. Pitts told Gibbs that he was going to bury his clothes and dispose of the knife. As he got out of Gibbs' car, Pitts told Gibbs "[t]here will be a couple of thousand in this for you when it's all over."

Later that day, Gibbs went to the Pemberton police headquarters and gave a statement implicating defendant in the homicides. Defendant was apprehended by police at his apartment later that evening.

As noted above, supra at 586, defendant was named in a twelve-count indictment returned by a Camden County Grand Jury. Six counts related to the murder of Paul Reynolds and

Stacey Elizardo and six counts concerned the events that occurred two days earlier at Elizardo's townhouse.

At the conclusion of the guilt-phase of the trial, the trial court charged the jury on passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), as a lesser-included offense of murder. See State v. Grunow, 102 N.J. 133 (1986). Defendant requested an instruction on imperfect self-defense, contending that his belief that his safety was endangered was relevant to the jury's consideration of a passion/provocation manslaughter verdict. The trial court refused to charge the jury on imperfect self-defense.

Defendant was convicted on all counts of the indictment, including the murder of Paul Reynolds (N.J.S.A. 2C:11-3(a)(2) and N.J.S.A. 2C:11-3(c)); the murder of Stacey Elizardo (N.J.S.A. 2C:11-3(a)(2) and N.J.S.A. 2C:11-3(c)); hindering apprehension or prosecution (N.J.S.A. 2C:29-3(b)(1)); two counts of possession of a weapon, a knife, for an unlawful purpose (N.J.S.A. 2C:39-4(d)); false swearing (N.J.S.A. 28:2-2(a)); two counts of possession of a weapon, a handgun, for an unlawful purpose (N.J.S.A. 2C:39-4(a)); tampering with a witness (N.J.S.A. 2C:28-5(a)(2)); terroristic threats (N.J.S.A. 2C:12-3); aggravated assault by pointing a firearm (N.J.S.A. 2C:12-1(b)(4)); and unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)).

In the penalty phase, the jury determined with respect to both homicides that the State had proved the existence of aggravating factor N.J.S.A. 2C:11-3c(4)(c), that "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim[.]" The jury found that the State had not established the existence of a second aggravating factor in connection with the Reynolds murder, that "the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim[.]" N.J.S.A. 2C:11-3c(4)(b). With regard to the murder of Elizardo, the jury found that the State had not established the existence of a second aggravating factor, in

connection with the Reynolds murder, that "[t]he murder was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement for another offense * * *." N.J.S.A. 2C:11-3c(4)(f).

With respect to the murder of Paul Reynolds, the jury determined that the following mitigating factors existed:

(a) The defendant 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).]

(b) The victim solicited, participated in or consented to the conduct which resulted in his death; [ N.J.S.A. 2C:11-3c(5)(b).]

(f) The defendant has no significant history of prior criminal activity; [ N.J.S.A. 2C:11-3c(5)(f).]

(h) Any other factor which is relevant to the defendant's character or record or to the circumstances of the offense. [ N.J.S.A. 2C:11-3c(5)(h).]

The jury rejected defendant's proof of mitigating factor 2C:11-3c(5)(d) that "[t]he defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution." The jury determined that the single aggravating factor was outweighed by the mitigating factors.

With regard to the murder of Elizardo, the jury found the following mitigating factors were established:

(a) The defendant 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).]

(f) The defendant has no significant history of prior criminal activity; [ N.J.S.A. 2C:11-3c(5)(f).]

(h) Any other factor which is relevant to the defendant's character or record or to the circumstances of the offense; [ N.J.S.A. 2C:11-3c(5)(h).]

The jury determined that defendant had not established the existence of mitigating factor 2C:11-3c(5)(b) ("[t]he victim solicited, participated in or consented to the conduct which resulted in his death"), or 2C:11-3c(5)(d) ("[t]he defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication,

but not to a degree sufficient to constitute a defense to prosecution."). The jury concluded that the aggravating factor was not outweighed by the mitigating factors. Accordingly, the trial court sentenced defendant to death for the murder of Stacey Elizardo.

Defendant was also sentenced to life imprisonment with thirty-years parole ineligibility for the murder of Paul Reynolds. In addition, defendant received concurrent sentences for the remaining, unmerged counts of the indictment: seven years for possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a)); concurrent terms of four years each on count three, hindering apprehension (N.J.S.A. 2C:29-3(b)(1)), count seven, tampering with a witness (N.J.S.A. 2C:28-5(a)(2)), and count eight, terroristic threats (N.J.S.A. 2C:12-3), and concurrent terms of eighteen months each on count five, false swearing (N.J.S.A. 28:2-2(a)), and count nine, aggravated assault (N.J.S.A. 2C:12-1(b)(4)).*fn1

Defendant challenges his convictions and death sentence on numerous grounds. We now consider each of defendant's contentions.

II.

Constitutional Issues

Defendant contends that New Jersey's capital punishment act, N.J.S.A. 2C:11-3c to g, infringes on rights afforded him by the New Jersey Constitution. We addressed this contention in State v. Biegenwald, supra, 106 N.J. 13, 25-26 (1987), and State v. Ramseur, 106 N.J. 123, 166-97 (1987). We adhere to our conclusion that the death penalty statute does not violate

either federal or state constitutional prohibitions against cruel and unusual punishment. U.S. Const. amends. VIII, XIV; N.J. Const. of 1947 art. I, para. 12. We also reject as meritless defendant's assertion that the statute infringes on the rights guaranteed by Article I, paragraph 1 of the State Constitution.

Defendant also contends that the capital punishment act is unconstitutional because it does not authorize the jury to disregard the balancing of aggravating and mitigating factors mandated by the act and return a non-death verdict based on considerations of mercy. We considered and rejected a similar contention in State v. Ramseur, supra, where we held that an instruction that the jury "should decide the case on the evidence without any bias, prejudice or sympathy * * *" did not violate a defendant's constitutional rights, 106 N.J. 123, 296-99, citing California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987). We also observed in Ramseur that the trial court's charge "did not preclude the jury from considering all possible mitigating circumstances and such sympathy as those circumstances might inspire." Ramseur, 106 N.J. at 299.

In this case, the trial court's penalty-phase charge did not mention mercy or sympathy. As in Ramseur, the jury was free to consider and weigh any of the mitigating factors established by the defendant, in the context of any feelings of compassion, mercy or sympathy engendered by those mitigating factors. See State v. Rose, 112 N.J. 454, 544-45 (1988) ("The Court's instruction * * * did not inhibit the jury from considering sympathy to the extent it may have been engendered by mitigating factors proved by defendant.").

Defendant asserts that the jury must be free to render a verdict prompted by feelings of mercy unrelated to any mitigating factor recognized by the Act and unconstrained by the jury's balancing of aggravating and mitigating factors. We reject that contention and conclude that the jury's authority under the Capital Punishment Act to consider, in pronouncing sentence, feelings of mercy and sympathy inspired only by

mitigating factors established by the evidence does not violate defendant's constitutional rights.

III.

Guilt-Phase Issues

A. Defendant's Severance Motion.

Defendant moved before trial to sever from the indictment all counts that were based on events that occurred at Stacey Elizardo's residence on March 20, 1984, two days prior to the homicides. Defendant argued that it would be highly prejudicial for the capital murder offenses to be tried together with unrelated charges based on the events of March 20, asserting that the only connection between the homicide and pre-homicide counts was that the latter took place at the apartment of one of the victims. The State argued that the events of March 20, whether or not included as separate counts of the indictment, were relevant to prove defendant's love for Stacey, his jealousy of other men she dated, and, particularly, his animosity toward the victim, Paul Reynolds. The trial court denied defendant's motion to sever the challenged counts from the indictment, observing that it was

satisfied that the facts surrounding the two dates of March 20 culminating * * * with the homicides of March 22, are so interlocked, so part of the mosaic, as the prosecutor called it, that it would not be possible to tailor that evidence in such a way as to bring out statements and not bring out acts, and especially considering that the acts themselves are part and parcel of the State's total case with intent to prove motive on the part of this defendant, and especially because it seems to me this is a series of events, a series of facts that begins on the 20th, is continued uninterrupted until it results in the homicides, that the chances are * * * that all facts of the March 20 episodes * * * are more than likely going to be coming into evidence in the homicide trials anyway.

We first look to Rule 3:7-6 to determine whether the challenged counts could properly be joined in the same indictment with the counts relating to the homicides. That Rule provides:

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more

acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

In this context, the critical phrase in Rule 3:7-6 is "if the offenses charged are * * * based on * * * 2 or more acts or transactions connected together * * *." The Rule's phraseology is hardly self-explanatory. See 8 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, para. 8.05[3] (2d ed. 1988) ("[C]ourts have sometimes found it as difficult to determine when acts are 'connected' as when they are 'the same.'"). In this case, however, the connection between the events of March 20 and the homicides is readily apparent. The testimony about the events of March 20 included references to a threat by defendant to "get" Reynolds for keeping Stacey out late, and to threats by defendant that were directed at Stacey. In addition, defendant threatened Stacey's friend Della Polla by holding a knife to his throat, and later in the evening threatened his life with a sawed-off shotgun. The evidence of defendant's jealousy and threats of violence toward other male friends of Stacey was clearly relevant to the issue of defendant's intent and state of mind at the time of the homicides, and also was material to the State's effort to establish defendant's motive for the murders on March 22. The State's entitlement to offer proof of motive is well settled. State v. Carter, 91 N.J. 86, 102 (1982). In our view, there clearly existed a connection between the events of March 20 and those of March 22 sufficient to authorize joinder of counts relating to both dates in a single indictment, in accordance with Rule 3:7-6. See State v. Briley, 53 N.J. 498, 503 (1969); State v. Begyn, 34 N.J. 35, 56-57 (1961); State v. Manney, 26 N.J. 362, 366 (1958); State v. Cole, 154 N.J. Super. 138, 142-43 (App.Div.1977), certif. denied, 78 N.J. 415 (1978).

Defendant also argues that the trial court abused its discretion in denying defendant's severance motion, alleging significant potential for prejudice because of the consolidation of multiple offenses involving alleged acts of violence in a

single indictment. Although joinder of offenses may be permissible under Rule 3:7-6, severance is authorized in the trial court's discretion if joinder is likely to result in prejudice to the defendant. Rule 3:15-2(b) provides:

If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.

Defendant claims substantial prejudice from joinder of the March 20 counts with the homicide counts. He asserts primarily that the very exposure of the jury to evidence of violent acts allegedly committed by defendant two days prior to the homicides necessarily created in the jurors' minds an unfavorable impression of defendant. Defendant argues that joinder under these circumstances inevitably affected the jury's ability to afford him a fair and impartial trial. Defendant's contentions merit careful evaluation, particularly in a death-penalty prosecution. The potential for prejudice from joinder of multiple offenses in a single criminal trial was illuminated nearly fifty years ago by Judge Learned Hand:

There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically unmanageable than because it is not rationally relevant. When the accused's conduct on several separate occasions can properly be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. [ United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500 (1939).]

A trial court must be accorded ample discretion in determining whether to grant relief from joinder of offenses because of the potential for prejudice. State v. Briley, supra, 53 N.J. at 503; State v. Manney, supra, 26 N.J. at 368. A critical inquiry is whether, assuming the charges were tried

separately, evidence of the offenses sought to be severed would be admissible under Evidence Rule 55 in the trial of the remaining charges. State v. Moore, 113 N.J. 239, 274 (1988); State v. Kent, 173 N.J. Super. 215, 220 (App.Div.1980); accord Drew v. United States, 331 F.2d 85, 90 (D.C.Cir.1964). Rule 55 precludes the admissibility of evidence of other crimes to prove defendant's propensity toward criminal conduct, State v. Kociolek, 23 N.J. 400, 419 (1957), but the Rule expressly permits such evidence to prove other facts genuinely in issue, such as motive or intent. Evid.R. 55; State v. Stevens, 115 N.J. 289, 300 (1989); State v. Garfole, 76 N.J. 445, 450 (1978), appeal after remand, 80 N.J. 350 (1979).

Whether the March 20 counts were tried separately or consolidated for trial with the homicide counts, evidence concerning the critical events of March 20 would have been admissible in the trial of the murder charges. Evidence of defendant's jealousy and hostility toward the victim, Paul Reynolds, and toward Della Polla, as well as evidence that defendant threatened to harm Della Polla with a knife and shotgun would have been admissible in the homicide prosecution to prove defendant's state of mind and motive, see State v. Breakiron, 210 N.J. Super. 442, 460-61 (App.Div.1986), rev'd on other grounds, 108 N.J. 591 (1987); State v. Slocum, 130 N.J. Super. 358, 362-63 (App.Div.1974), issues that were sharply contested at trial. Cf. State v. Stevens, supra, 115 N.J. at 301 (Other-crime evidence can be admitted to prove any fact genuinely in issue.). Hence, the prejudice to defendant resulting from joinder of the March 20 counts in the homicide indictment is lessened by the recognition that even if those counts were severed, the homicide jury would have been exposed to evidence recounting the events of March 20. See State v. Coruzzi, 189 N.J. Super. 273, 299 (App.Div.), certif. denied, 94 N.J. 531 (1983) ("[A] defendant will not suffer any more prejudice in a joint trial than he would in separate trials, because the evidence of the other alleged crimes would be admissible in any event under Evid.R. 55.").

We also note that the potential for prejudice created by the joinder of counts in this case was lessened because defendant did not contest his commission of the homicides, focusing his defense on the contention that he was guilty of manslaughter rather than murder. In addition, the trial court, in its instruction, cautioned the jurors to deliberate separately on each of the twelve counts, and to return a judgment of conviction only if convinced that each element of the individual counts had been proved beyond a reasonable doubt. Although the instruction was adequate, it would have been preferable, particularly in a capital case and generally when multiple counts are joined in a single indictment, for the trial court to have emphasized to the jury its duty to avoid any negative or prejudicial impressions that might otherwise be created by the joinder of several criminal charges in a single indictment.

Based on our review of the record, we hold that the trial court's denial of defendant's motion to sever was not an abuse of discretion, and that defendant was not significantly prejudiced by the joinder of the March 20 counts with the homicide counts in the guilt phase of the proceedings. We observe, however, that the trial court did not instruct the jury in the penalty phase, as it was obliged to do, that the evidence relating to the non-homicide counts of the indictment were not to be considered as aggravating factors in the penalty-phase weighing process. State v. Moore, supra, 113 N.J. at 276-77; accord State v. Rose, supra, 112 N.J. at 505-06.

B. Should the Trial Court Have Charged the Jury on Aggravated Manslaughter?

1. Imperfect Self-Defense-Aggravated Manslaughter.

Defendant's counsel acknowledged in his opening statement that defendant had killed Paul Reynolds and Stacey Elizardo, but asserted that the homicides had occurred in the heat of passion provoked by reasonable provocation. According to defense counsel's review of the evidence in summation, the

provocation consisted of Reynolds' making insulting and mocking remarks to Pitts, Reynolds' suggesting that Stacey was engaging in prostitution to earn money for drugs, an exchange of pushes and shoves, and, finally, Reynolds' telling Pitts that he was going to his bedroom to get a gun. As requested, the trial court charged the jury on passion/provocation manslaughter as a lesser-included offense of murder. N.J.S.A. 2C:11-4b(2).

Defendant did not request a charge of aggravated manslaughter, but did request the trial court to instruct the jury on the doctrine of imperfect self-defense. The argument advanced was that defendant's honest, but not necessarily reasonable, belief that Reynolds' threat to get a gun endangered defendant's safety constituted sufficient provocation to support a verdict of passion/provocation manslaughter. The trial court denied the requested instruction. Before this Court, defendant renews his contention that the trial court erred in refusing to instruct the jury on the doctrine of imperfect self-defense. Alternatively, defendant contends that our decision in State v. Bowens, 108 N.J. 622 (1987), filed after trial but before argument of defendant's appeal, requires a trial court to charge aggravated manslaughter whenever evidence offered to prove imperfect self-defense is material to the state of mind required to prove murder.

In State v. Bowens, supra, we reviewed the sequence of events leading to adoption of the provisions of the Code of Criminal Justice (the Code) relating to self-defense. Id. at 629. We noted that the legislature expressly rejected a subjective test for self-defense, adopting instead a standard of objective reasonableness to determine when a decision to use force for self-protection was justifiable under the Code. Ibid.; see N.J.S.A. 2C:3-4(a). In Bowens, we also concluded that an honest but unreasonable belief in the need to use force for self-protection, insufficient under the Code to justify an otherwise unlawful homicide, could not of itself constitute a basis for mitigating

homicide to an unspecified form of manslaughter. Id. at 630-31.

Nevertheless, we observed in Bowens that evidence of facts sufficient to establish "imperfect self-defense" may in certain cases "bear directly on the question of whether the homicide was knowing or purposeful, and would be admissible to counter these essential elements of the offense of murder." Id. at 632. We noted examples of circumstances in which an unreasonable but honest belief in the need to use force could be pertinent to the elements of Code offenses:

An example given by the Attorney General of the multi-faceted nature of the defense includes the overreaction in self-defense to aggressive or threatening conduct, e.g., shooting to kill an unarmed attacker who has fallen to the ground. He noted that to the extent the victim's conduct constitutes "reasonable provocation" the offense may be mitigated to become the Legislature's special homicide offense, passion-provocation manslaughter. N.J.S.A. 2C:11-4(b)(2). Evidence of imperfect self-defense does not justify the conduct, it mitigates the offense. Another example given is the reckless use of mortal force in self-defense, as when one seeking to repel an attacker disregards a risk that pushing the aggressor down a cliff will result in death. That person may not have committed murder purposely or knowingly but may be guilty of one of the forms of manslaughter: either reckless homicide under N.J.S.A. 2C:11-4(b)(1) or reckless homicide manifesting extreme indifference to human life under N.J.S.A. 2C:11-4(a). The evidence bears on the essential elements of a Code offense. [ Id. at 633.]

Accordingly, we held in Bowens that although imperfect self-defense was not recognized by the Code as a justification for otherwise unlawful conduct,

in many cases the issues of the reasonableness of the defendant's conduct presented to the jury in defense of the substantive crimes charged will have relevance to the essential elements of the homicidal act: whether it was the actor's conscious object to inflict deadly force, whether death was almost certain to follow, or whether the act was done recklessly or with reasonable provocation. [ Id. at 634.]

Defendant contends that our holding in Bowens compels the conclusion that the trial court committed reversible error in failing, sua sponte, to charge aggravated manslaughter on the basis of the evidence that defendant killed Reynolds because of an honest but unreasonable fear for his own safety. However, as we explained in Bowens, not every claim of [116 NJ Page 606] imperfect self-defense leads to an aggravated manslaughter charge. The predicate for such an instruction, when it is based on evidence of imperfect self-defense, is that such evidence either negates the mental state required for murder, or demonstrates acts of provocation on the part of the victim to an extent sufficient to afford the jury a rational basis for convicting the defendant of one of the Code's forms of manslaughter. N.J.S.A. 2C:11-4a and 4b; see id. at 633. In this case, defendant testified that Reynolds "made a move to one of the bedrooms * * * to get this gun," and it was "at that time * * * that I pulled the knife out from the back of me and assaulting [ sic ] Paul with that knife." Defendant described the assault as "almost an instantaneous like reflex," committed in a "frenzied type state of mind." We construe defendant's testimony relating the Reynolds murder to Reynolds' threat to "get this gun" as relevant to the crime of passion/provocation manslaughter, N.J.S.A. 2C:11-4b(2), on which the trial court charged the jury. However, defendant's version of the Reynolds' homicide does not present facts that negate the state of mind indispensable for a conviction of murder, N.J.S.A. 2C:11-3a(1) and (2), or afford the jury a rational basis on which to convict defendant of either aggravated or reckless manslaughter. N.J.S.A. 2C:11-4a or 4b(1). No aspect of defendant's testimony suggested that his state of mind was "reckless."*fn2 Accordingly, we find no error in the trial court's failure to charge aggravated or reckless manslaughter on its own initiative based on defendant's

testimony offered to prove "imperfect self-defense" in connection with the Reynolds homicide.

2. Diminished Capacity -- Aggravated Manslaughter.

Expert psychiatric testimony offered on defendant's behalf included a diagnosis of defendant's mental and emotional condition as well as an opinion concerning defendant's state of mind at the time of the homicides. See supra at 591-592. Although defendant did not argue before us the defense of diminished capacity, N.J.S.A. 2C:4-2; see State v. Breakiron, supra, 108 N.J. 591, nor assert that the testimony of defendant's psychiatric expert supported a charge of aggravated manslaughter, we requested supplemental briefs on these questions. In response to that request, defendant now contends that the testimony of Dr. Cooke concerning defendant's cyclothymic personality disorder, supra at 591, combined with that expert's opinion of defendant's state of mind when he stabbed the victims, supra at 592, compelled the trial court, sua sponte, to instruct the jury on diminished capacity and aggravated manslaughter. The State disagrees sharply, arguing that defendant's psychiatric expert did not establish any connection between defendant's "personality disorder" and his state of mind when the homicides were committed. Moreover, the State asserts that throughout the trial defendant conceded that he killed the victims "knowingly," infra at 612-613, but based his entire defense on the theory that the homicides occurred in the heat of passion, induced by reasonable provocation. Finally, the State contends that since defendant did not request instructions on either diminished capacity or aggravated manslaughter, the trial court had no duty "meticulously [to] sift through the entire record" to determine if some combination of facts and inferences might support such jury charges. See State v. Choice, 98 N.J. 295, 299 (1985).

In State v. Breakiron, supra, 108 N.J. 591, we considered the diminished capacity defense and concluded that

[it] was designed by the Legislature not as a justification or an excuse, nor as a matter of diminished or partial responsibility, but as a factor bearing on the presence or absence of an essential element of the crime as designated by the Code. The Legislature contemplated that all are not born with equal mental capacity, and it would want a jury to consider whether a mentally defective person would be as practically certain as would another that death would result from the infliction of a serious blow. [ Id. at 608.]

We also observed that

the mere presence of mental disease or defect does not perforce reduce murder to an unspecified degree of manslaughter. For the purpose of determining criminal guilt, diminished capacity either negates the state of mind required for a particular offense, if successful, or it does not. [ Id. at 609.]

Although the discussion in Breakiron does not amplify the meaning of the phrase "mental disease or defect," as it is used in N.J.S.A. 2C:4-2, we adverted to the difficulties inherent in attempting to correlate mental diseases with the categories of criminal culpability contained in the Code:

Not every mental disease or defect has relevance to the mental states prescribed by the Code. The variety and forms of mental disease are legion. They range from paranoia and schizophrenia to affective disorders and psychopathy. Some, such as depression or anti-social disorders, have little or no relevance to knowledge. Others, such as schizophrenia, are clearly relevant. Some states have attempted to define the relevant mental diseases or defects. Our Code does not. But "[b]oth jurists and mental health professionals recognize that there is no perfect correlation between legal standards of 'insanity' and psychiatric classifications of mental disorder." [108 N.J. 618-19 n. 10 (citations omitted).]

Defendant's psychiatric expert Dr. Cooke diagnosed defendant as having a "cyclothymic personality disorder," a condition classified as a mental disorder by the American Psychiatric Association. APA, DSM III-R: Diagnostic and Statistical Manual of Psychiatric Disorders (DSM III-R) 226-28 (3d ed. Rev.1987). Dr. Cooke described the condition as a mood disorder that at times causes significant depression, but does not cause one to lose "contact with reality the way a manic depressant might." In addition, Dr. Cooke testified that defendant had a "chronic anxiety disorder, and ...


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