On appeal from Superior Court, Law Division, Ocean County.
Concurring in result -- Justice Handler. For vacation and remandment -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. Handler, J., concurring.
This case is one of that series of death-row cases tried before our major defining decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), State v. Bey (I), 112 N.J. 45, 548 A.2d 846 (1988), State v. Bey (II), 112 N.J. 123, 548 A.2d 887 (1988), and State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988).
Specifically, this case was tried before our Gerald decision made clear that New Jersey's murder statute embraces two forms of common-law murder, one being intentional killings and the other unintentional killings that result from the infliction of "serious bodily injury." N.J.S.A. 2C:11-3(a)(1) and (2). In Gerald, supra, 113 N.J. at 69, 549 A.2d 792, the Court concluded that death was the authorized punishment only for intentional murder, not for serious-bodily-injury murder, otherwise the statute would offend constitutional principles.
In this case, defendant pled guilty to murder on September 19, 1986. The jury sentenced him to death. The question before us is simply this: Did he plead guilty to capital murder or did he plead guilty to non-capital murder? To answer the question we must first know more about the case and how the question comes before us. For this purpose, we shall accept as correct the State's statement of the case.
On Labor Day, September 2, 1985, defendant brutally stabbed and murdered a female neighbor. That afternoon the victim had said to a visiting friend: "There's that creep again. He's always staring up here." After the victim's friend left, defendant entered her apartment and attacked her. She was found the next day, sprawled on the bed, with her night clothes pulled up over her head. A pillow covered her face. There was evidence of an attempted rape. Defendant stabbed the victim, in the words of the State, "wildly, viciously, repeatedly: 53 times." Defendant stabbed her eighteen times in the genital area with an obvious sadistic intent. After the murder, he stole her car and drove around casually with a man he happened to meet, drinking beer and looking for marijuana. Defendant was arrested two days later and confessed to the murder.
An Ocean County grand jury indicted the defendant on October 23, 1985, charging in the first count that he had "purposely or knowingly by his own conduct, cause[d] the death" of the victim, contrary to N.J.S.A. 2C:11-3a(1) and (2), and in further counts charging him with aggravated sexual assault and theft. On September 19, 1986, the defendant appeared before the Law Division and pled guilty to Counts One and Three, the murder and theft. A penalty-phase hearing was held before the Law Division and a jury between January 12 and February 6, 1987. The jury unanimously found that the aggravating factors existed beyond a reasonable doubt and outweighed beyond a reasonable doubt any existing mitigating factors. Defendant was sentenced to death. He filed a notice of appeal with this Court on April 27, 1988. On October 25, 1988, and while defendant's appeal was pending, this Court rendered its decision in State v. Gerald, supra, 113 N.J. 40, 549 A.2d 792. On July 31, 1989, defendant filed a motion seeking reversal of his conviction and sentence on the basis that the plea did not establish guilt to capital murder.
The State responded to the motion on two bases: (1) that it is premature and unwise to decide the validity of the plea in the abstract without resolving all other possible issues in the case, and (2) that on the merits the motion fails because defendant's plea was plainly to capital murder and established death eligibility. Would that the latter were so plain. Although the indictment contained only the language of the first part of the statute, i.e., that the defendant had knowingly or purposely caused the death of the victim, it charged the conduct to have been in violation of N.J.S.A. 2C:11-3a(1) and (2), embracing both capital and non-capital murder. Our present Rule of court, Rule 3:7-3, requires merely that a murder indictment
specify whether the act is murder as defined by N.J.S.A. 2C:11-3(a)(1), (2) or (3) and whether the defendant is alleged to have committed the act by his own conduct and whether the defendant is alleged to have procured the commission of the offense by payment or promise of payment, of anything of pecuniary value. [ R. 3:7-3(b)]
In making the following observations, we intend no criticism of court or counsel. Although Ramseur had foreshadowed the Gerald result by stating "intent to do only serious bodily harm * * * may * * * be insufficient to support a capital sentence today because of the constitutionally required culpability standards regarding a capital defendant's intent to kill," State v. Ramseur, supra, 106 N.J. at 194, 524 A.2d 188 (citing Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)), Ramseur was decided on March 5, 1987, after this plea was entered. Moreover, the Gerald result was based not solely on federal, but on state, constitutional analysis. Gerald, supra, 113 N.J. at 75, 549 A.2d 792. With rare exceptions, court and counsel in capital cases did not forecast Gerald's differentiation between intentional murder and serious-bodily-injury murder. Hence, in explaining the charges to the defendant at the plea hearing the court asked:
Q Mr. Jackson, do you understand that what you have said today, which basically has dealt with the stabbing of the victim, and knowing that would lead to her death, that that can be used against you later on in the penalty phase?