On appeal from the Superior Court, Law Division, Middlesex County.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern and Garibaldi. Concurring in part; dissenting in part -- Justices Handler and Stein. The opinion of the Court was delivered by Clifford, J. Handler, J., concurring in part and dissenting in part. Stein, J., concurring in part and dissenting in part.
A jury convicted defendant of the purposeful murder of Seth Lemberg, in violation of N.J.S.A. 2C:11-3a(1), and the unlawful possession of a weapon for an illegal purpose, contrary to N.J.S.A. 2C:39-4(a). Following a penalty-phase proceeding on the capital-murder conviction, the court sentenced defendant to death. On the illegal-possession offense, the court sentenced defendant to a term of ten years and imposed a Violent Crimes Compensation Board fine. Defendant's appeal of the capital-murder conviction comes to this Court as of right under Rule 2:2-1(a)(3). We conclude that there were errors in both the guilt and penalty phases. We therefore reverse and remand for a new trial.
Shortly after his release in 1983 from an eight-year prison term for murder, defendant, Bryan Coyle, moved to Old Bridge, where he assumed the name Bryan Johnson. He became a tenant in a one-family residence at 27 Morsell Place owned by Susan Dealy, whom he had known for "about three years, off and on," and her husband, Richard. In lieu of rent defendant made repairs on the house. Among his meager possessions were a nine-millimeter gun, bullets, a target resembling a person, and a customized holster. He put those items in a first-floor room where he occasionally slept in a sleeping bag.
In his free time Coyle practiced shooting with his nine-millimeter gun in the woods behind his home. He also participated in "neighborhood activities" and developed a close friendship with his next-door neighbors Seth and Rhonda Lemberg. Coyle frequently joined the Lembergs on their porch for late-night socializing, drinking, and "shooting the breeze."
As time passed, defendant and Rhonda Lemberg drew closer. While Seth Lemberg was at work, Coyle would listen attentively
as Rhonda discussed her unhappiness. She expressed distress over her parents' divorce and her own marital problems. She confided in Coyle that sometimes after drinking, Seth would beat her and their children. Rhonda also revealed that her husband had been convicted in 1975 for assaulting two police officers. She further disclosed that she feared Seth might eventually use a gun her father had left in the house.
The neighborly friendship that defendant had established with Rhonda soon ripened into an ardent love affair, with disastrous consequences.
The evening of July 28, 1983, began as many others had. While Seth was at work, Coyle and Rhonda engaged in sexual relations and then sat out on the Lemberg porch. Around midnight Seth returned from work with a six-pack of beer in hand and joined Rhonda and Coyle. As was their custom, the trio passed the time talking and drinking beer and whiskey. Within three hours Coyle and Seth had each consumed three to five beers and several shots of whiskey. In the early morning hours of July 29, the group disbanded and Coyle returned home.
At that point an argument erupted between Rhonda and Seth. Fearing that her husband might hit her, Rhonda left, walked down the street, and sat on a neighbor's curb for about twenty minutes. When she returned, she found the house locked. Because she had forgotten her key, she went next door to Coyle's house. Coyle attempted to soothe Rhonda by walking with her around the block for twenty to thirty minutes before returning with her to his house. According to Coyle, he had taken mescaline prior to Rhonda's arrival. Rhonda testified that she had known that Coyle had taken mescaline, and that she had taken some herself.
Shortly thereafter, Seth banged on Coyle's door and demanded that his wife return home. When no one opened the door, he
broke the front window, cutting his hand in the process. Coyle retrieved his nine-millimeter gun, loaded it, and put it in his back pocket before opening the door. Ignoring Coyle's efforts to placate him, Seth strode towards Rhonda as she and Coyle retreated towards the kitchen. When Coyle fired a warning shot into the floor, Seth fled.
Seth called the police to report that his neighbor had shot at him. Although the police arrived within five minutes, their response was too late to avert tragedy.
The ensuing events are in dispute. After calling the police, Seth apparently saw Coyle and Rhonda enter Coyle's car. According to Stanley Makson, who lived across the street, Lemberg ran out of his house with a "bath" towel wrapped around his hand. Amy Makson, Stanley's wife, observed that Seth had a "wad" of light-colored wrapping around his hand. Rhonda testified, however, that she had seen a gun, not a towel, in her husband's hand. Lemberg prevented the couple's escape by blocking Coyle's car with a discarded garage door. Rhonda told Coyle that "[Seth's] going to kill us." She then fled from the car and ran down the street.
Stanley Makson testified that Seth, who had seemed "steamed up," had pursued Rhonda. Coyle, still armed with his gun, stood alongside the car. Rhonda and Seth engaged in a heated exchange as they returned home. She "whiningly" pleaded with him, while he gestured with disgust towards Coyle's house. After telling Rhond a to go back to her boyfriend, Seth stomped into his own house.
Coyle and Rhonda then started walking down the block. Seth stormed out of the house moments later, somehow passed Coyle, and hurried after Rhonda. Coyle then chased Seth. Just as he passed the driveway of 17 Morsell Place, Coyle opened fire on Seth, who was approximately twenty feet away. The shots missed. As he neared the driveway at 15 Morsell Place, defendant fired another round, this time hitting Seth in
the leg. Stumbling to the ground near 13 Morsell Place, Seth crawled across the front lawn and hid behind a spruce tree.
Coyle followed Seth behind the tree and fired three more rounds. Two of those shots hit the victim, one in the back of the shoulder, the other in the back of the head. According to the neighbors, the entire chase was accompanied by rapid-fire gunshots. Guy Midgely, who lived at 13 Morsell, and Christine Miladinov, who lived next door to Midgely, heard "yelping" that sounded like a "yahoo" during or immediately after the shots were fired. Coyle quickly ran down the block, away from the crime scene and his house.
When he caught up to Rhonda, they walked to the school at the far end of their block. Shocked and dazed, Coyle then ran into the woods abutting Morsell Place until he reached Route 516. He called Susan Dealy from a pay phone to pick him up. Dealy drove Coyle to the Matawan train station. He took a train to New York and then caught a bus to South Carolina.
Meanwhile, the police arrived at the Lemberg house moments after the shooting. Noticing several drops of blood on the porch, two officers entered the house, where they found the Lemberg children asleep upstairs. Three other officers discovered Seth's body at 13 Morsell Place. The police also recovered eight shell casings -- three near the body, one near the driveway of 13 Morsell Place, one in the driveway of 15 Morsell Place, and three in the driveway of 17 Morsell Place.
The officers spoke to neighbors and to Rhonda, who had returned home, and then proceeded to Coyle's house. When no one answered, the officers entered the kitchen through the back door. Finding the house vacant, the officers searched for papers identifying the resident. They discovered several envelopes with the name "Bryan Johnson," one envelope bearing the name "Bryan Coyle," and several leaflets apparently intended for "Richard Dealy."
After securing Dealy's consent for a search of the house, the police seized a gun-cleaning kit, a customized holster, a target,
a gun catalogue, a Soldier of Fortune magazine, silencer instructions, and three live rounds of nine-millimeter hollow-point bullets. They also discovered a bullet hole in the floor of the landing leading to the kitchen, a shell casing on the stairway, and bullet fragments beneath the landing.
After examining the victim's body the medical examiner, Dr. Marvin Shuster, concluded that Lemberg had been shot three times, once in the back of the left shoulder at close range, once in the lower left buttock, and once in the back of the head, slightly above the left ear.
After the police apprehended Coyle in Columbia, South Carolina, the Middlesex County Grand Jury indicted him for the purposeful murder of Seth Lemberg, in violation of N.J.S.A. 2C:11-3a(1) (count 1), and the unlawful possession of a weapon for an illegal purpose, contrary to N.J.S.A. 2C:39-4(a) (count 2).
The State notified defendant of its intent to prove two aggravating factors during the penalty phase: first, defendant had been convicted of another murder, N.J.S.A. 2C:11-3c(4)(a); second, the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind, N.J.S.A. 2C:11-3c(4)(c).
The State's and the defense's characterization at trial of the circumstances leading to Lemberg's death differed sharply. Relying primarily on the testimony of neighbors, the State theorized that Seth Lemberg had been executed and that Bryan Coyle, a munitions buff, was the executioner. It blamed the murder in part on Coyle's antisocial tendencies.
Although defense counsel admitted that Coyle had killed Lemberg, they disputed the State's characterization. They sought to show through the testimony of defendant and Rhonda Lemberg that Coyle had justifiably killed Seth in defense of Rhonda. They painted Coyle not as an executioner but as a protective lover and guardian angel. Defense counsel argued
in the alternative that the killing had not been purposeful because Coyle had been intoxicated.
The State's witnesses essentially verified the factual account of the killing already set forth. A ballistics expert confirmed Dr. Shuster's conclusion: in order to have caused the powder marks found in the shoulder area, Coyle must have been from twelve to twenty-eight inches away when he shot the victim in the shoulder.
The State introduced the Soldier of Fortune magazine, silencer instructions, and gun catalogue to show that Coyle had not acted in defense of Rhonda. Claiming that Coyle's munitions expertise bore on his state of mind, the State argued that Coyle was a man "mentally prepared to kill," not a reasonable man who had acted in defense of another.
The defense countered that the victim had been prone to violence. Rhonda testified that her husband had been acting irrationally on the fatal evening, and that she had been fleeing from him when she heard gunshots and footsteps behind her. As the footsteps drew closer, her husband grabbed her from behind by the neck. As she turned, she saw Seth. When he was shot in the leg moments later, he appeared enraged, grabbed his leg, and lurched toward her. As she ran away, she saw Seth "jerk himself up" before Coyle shot him again.
Coyle's testimony paralleled Rhonda's. He acknowledged his affair with Rhonda and his interest in weapons. He further testified that he had believed Seth was going to kill Rhonda; that he had "tried firing warning shots" as he ran behind her assailant; but that when Seth reached to "grab" Rhonda, he "didn't think [he] had any more time and * * * aimed a shot and fired and hit [Seth]." Defendant insisted that he had fired because he had been "convinced that [Seth] was going to kill Rhonda," and that he had shot the victim not to kill him but only "[t]o stop him from getting Rhonda."
On cross-examination Coyle conceded that after the first shot had hit Seth, Rhonda had no longer been in immediate danger.
He also admitted that the mescaline had made him "hyperaware." He further acknowledged having told Rhonda that he was "very much against society and its rules."
Maryann McIntosh, a friend of the Lembergs, testified that shortly after the shooting Rhonda told her that she had initially lied to the police about the killing. Contrary to the initial account she had given the police, Rhonda told McIntosh that Seth had been attacking her. Mrs. McIntosh also testified that Rhonda was not easily manipulated, and that Coyle "cared" for the Lemberg children.
On cross-examination and in its rebuttal, the State attempted to show that Seth was a loving husband and father, and that Rhonda was easily manipulated by others. Susan Hopper, another friend of the Lembergs, and Barbara Velenzano, a former neighbor, testified that after the shooting Rhonda had said she feared Coyle might return to kill her. Ms. Hopper added that Rhonda had also told her that she was several houses away when Seth was shot. The State repeatedly emphasized that Rhonda's testimony conflicted with her earlier sworn statement, in which she had said Seth held not a gun but rather a paper towel in his hand, and that when Seth was shot, she had been about five or six houses away, not within arm's reach. The State then pointed out that Rhonda had been meeting regularly with Coyle prior to trial, each meeting allegedly followed by a change in her story that benefitted Coyle's defense. The State stressed that Rhonda still visited Coyle, loved him, and would lie for him.
Arguing that defendant was guilty of purposefully murdering Lemberg, the prosecutor suggested in his summation that the Soldier of Fortune magazine and silencer instructions demonstrated that Coyle was "mentally prepared to kill." According to the State, that evidence was consistent with Coyle's attitude in general: feeling "jilted by society," Coyle "was against all [its] rules."
The court charged the jury on purposeful murder (N.J.S.A. 2C:11-3a(1)), aggravated manslaughter (N.J.S.A. 2C:11-4a), reckless manslaughter (N.J.S.A. 2C:11-4b(1)), and passion/provocation manslaughter (N.J.S.A. 2C:11-4b(2)), as well as on the unlawful possession of a weapon. During its deliberations the jury twice requested an elaboration on the murder and manslaughter charges before convicting defendant of purposeful murder and the unlawful-possession offense.
No witnesses testified at the penalty phase. The State placed in evidence the testimony and physical evidence that the court had admitted in the guilt phase, plus a certified copy of defendant's 1975 murder conviction. The prosecutor argued for a finding of aggravating factors (4)(a) (previous conviction for murder) and (4)(c) (outrageously and wantonly vile murder involving depravity of mind). Defendant submitted four mitigating factors: defendant was under the influence of extreme mental or emotional disturbance, 2C:11-3c(5)(a); defendant's intoxication significantly impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, 2C:11-3c(5)(d); the victim participated in conduct that resulted in his death, 2C:11-3c(5)(b); and any other factor relevant to the circumstances of the offense, 2C:11-3c(5)(h).
The jury returned a verdict finding both aggravating factors beyond a reasonable doubt. Although it concluded that the victim had participated in conduct resulting in his death, the jury rejected the other mitigating factors. The jury further determined that the aggravating factors outweighed the mitigating factor beyond a reasonable doubt. Based on those findings, the court sentenced Coyle to death.
Defendant mounts a broad-based attack on his conviction and sentence. We address first an error in the jury charge that clearly requires reversal of the murder conviction on the basis
In State v. Gerald, supra, 113 N.J. at 69, 549 A.2d 792, we held that "a defendant who is convicted of purposely or knowingly causing 'serious bodily injury resulting in death' under N.J.S.A. 2C:11-3(a)(1) and (2), or either of them -- as opposed to one who is convicted of purposely or knowingly causing death under those same provisions -- may not be subjected to the death penalty." Therefore, if the record provides a rational basis for a jury to convict a defendant of either purposely or knowingly causing death, or purposely or knowingly causing serious bodily injury that results in death, a court must instruct the jury to specify which, if any, of those findings forms the basis for a conviction. Id. at 92, 549 A.2d 792. Because this case was tried pre- Gerald, the trial court's instructions understandably did not distinguish between purposely or knowingly causing death and purposely or knowingly causing serious bodily injury resulting in death. Defendant argues that the court's failure to have issued a Gerald charge constitutes plain error.
A Gerald charge is warranted if the evidence provides a rational basis for the jury to find that the defendant intended to cause only serious bodily injury. Because this record meets that threshold, defendant was entitled to have the jury instructed that it could return a non-capital-murder verdict, and the court's failure to have delivered a Gerald charge amounts to reversible error.
The State contends that defendant was not entitled to a Gerald charge because it is "inconceivable" that "a series of close range gunshots from what defendant knew to be 'a pretty powerful weapon,' one shot of which [was] fired into the victim's head, could be intended to do anything but kill that individual." The Attorney General points to State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988), in which we rejected Rose's contention that the evidence justified an "aggravated man-slaughter"
charge because "a person firing a sawed-off shotgun into the abdomen of another at point-blank range necessarily is aware that 'it is practically certain' that such conduct will cause the victim's death." Id. at 484, 548 A.2d 1058.
Rose argued that his statement that he had "panicked" because he "did not want to get caught" with a sawed-off shotgun, 112 N.J. at 483, 485, 548 A.2d 1058, indicated that the shooting was accidental rather than intentional. Id. at 482, 548 A.2d 1058. We determined that in the absence of any evidence that defendant's "panic" somehow interfered with his awareness of the consequences of his act, a jury could not rationally conclude from Rose's statement that he had been merely reckless. Id. at 485, 548 A.2d 1058.
Whether Rose should have received a Gerald charge was neither raised nor addressed in Rose, which was decided before Gerald. That aside, we are satisfied that the evidence bearing on Coyle's intent is different both qualitatively and quantitatively from that in Rose. Coyle testified at length about his intent in firing at the victim. He said specifically that he had sought not to kill Seth but to use "whatever means available" to "stop him" from grabbing Rhonda. Defendant argues that he shot at Lemberg after the victim failed to respond to a series of warning shots fired into the air. That first shot was fired "to hit him. All I wanted to do was to hit him and disable him * * *." Defendant concluded that the first attempt had been unsuccessful when Lemberg started to "launch back off the ground" after a few brief "stumbling, wobbling gyrations." Defendant testified on direct examination about his state of mind during the next critical series of events:
Everything that I had tried didn't work, and I couldn't take anymore chances at that point.
Q. Were you firing to kill him ?
Q. Why were you shooting ?
Q. To stop him from what ?
A. To stop him from getting Rhonda.
Q. Was there anything else you thought you could do when you did that?
A. Because, as I said, everything else had failed. I thought I had hit him with the first shot, but because he had started to go down, but he didn't go down, he didn't stay down, he came back up again. I couldn't think of anything else to do. I was out of options at that point. The only thing I could do was fire. All I wanted to do was to stop him. I wasn't trying to kill him. To be perfectly honest, I didn't care if he got killed at that point. As far as I was concerned at that point, my objective was to stop him from getting at Rhonda and whatever means available to do that, I was going to use. That's all I was concerned with, and I did it. (Emphasis added.)
And on cross-examination when the prosecutor asked Coyle specifically about having shot his victim in the back of the head, defendant responded:
A. I didn't -- Mr. [Prosecutor], I fired a flurry of shots. When he launched himself I started firing. Where they hit I only know now. At that time I had no idea.
Q. And you know now that one of them hit him in the back and the other one hit him in the back of the head, correct?
Q. Now, when you fired those additional shots were you still trying to hit him in the leg?
A. I wasn't trying to hit him in any specific area. I was just trying to stop him.
The foregoing testimony provided a sufficient basis for the jury to find that defendant had intended to cause serious bodily injury rather than to kill his victim. That conclusion is merely a permissible one, surely not the exclusive one. Although a jury might not agree with defendant's argument, defendant was entitled to have the jury decide the issue. The test is "whether there is room for dispute." State v. Mauricio, 117 N.J. 402, 415, 568 A.2d 879 (1990) (quoting State v. Crisantos (Arriagas), 102 N.J. 265, 285, 508 A.2d 167 (1986) (O'Hern, J., concurring in part, dissenting in part).
Not having the benefit of our Gerald opinion, this able and experienced trial judge inadvertently foreclosed the jury from making the critical choice between purposeful murder and serious-bodily-injury murder. Each time the court instructed the jurors on the definition of murder, it told them that the
"unlawful and purposeful killing of one person by another" is accompanied by a "conscious object to cause death or serious bodily injury resulting in death." It gave them the statutory definition of "serious bodily injury," told them that they "must find the defendant guilty of murder" if they found that he had "purposely caused death or serious bodily injury resulting in death," and explained that a penalty phase would follow "if the defendant is found guilty of committing the offense of murder" as the court had defined it. The verdict sheet simply asked the jurors if they found defendant guilty or not guilty of "murder."
The jury convicted defendant of murder "without specifying [or, indeed, being asked to specify] for which of the [two] distinguishable offenses he was convicted." See Gerald, supra, 113 N.J. at 92, 549 A.2d 792. Because the jury was not given the opportunity to make a finding for which the record provides a rational basis, namely, that defendant's purpose was to inflict serious bodily injury rather than death, we must reverse his murder conviction.
Having determined that a new trial is necessary, we turn to those issues that are likely to recur on retrial.
Defendant challenges the jury-selection process. First, he claims that the Middlesex County Grand Jury selection procedures systematically exclude the cognizable class of blacks and Hispanics, in violation of both the state and federal constitutions. The record does not support those claims.
The equal-protection clause requires that grand- and petit-jury selection be "free from any taint of discriminatory purpose." State v. Ramseur, 106 N.J. 123, 215, 524 A.2d 188 (1987). The sixth amendment guarantees that petit jurors will be "drawn from pools that represent a 'fair cross-section' of the community," ibid., (quoting Duren v. Missouri, 439 U.S. 357, 368 n. 26,
99 S. Ct. 664, 670 n. 26, 58 L. Ed. 2d 579, 589 n. 26 (1979)), while state precedent applies the fair-cross-section requirement to grand-jury selection in certain cases. Ibid.; State v. Porro, 152 N.J. Super. 259, 265, 377 A.2d 950 (Law Div. 1977) (fair-cross-section requirement applies in cases in which the right to indictment by a grand jury is constitutionally protected), aff'd, 158 N.J. Super. 269, 385 A.2d 1258 (App.Div.), cert. denied, 439 U.S. 1047, 99 S. Ct. 724, 58 L. Ed. 2d 706 (1978).
To establish a prima facie equal-protection claim, a defendant must identify a constitutionally-cognizable group, prove substantial under-representation over a significant period of time, and "show discriminatory purpose, either by the strength of his [or her] statistical showing or by demonstrating the use of [racially-based] selection procedures to support the inference of discrimination raised by substantial underrepresentation." State v. Ramseur, supra, 106 N.J. at 215-16, 524 A.2d 188. The elements of a prima facie fair-cross-section claim are similar: a defendant must identify a constitutionally-cognizable group, show that the representation of that group has not been fair and reasonable over a period of time, and demonstrate that the under-representation resulted from systematic exclusion. Ibid.
Defendant fails to establish prima facie cases for his claims that the fair-cross-section requirement and his equal-protection right were violated because New Brunswick and Perth Amboy, which have the highest percentage of minority residents of any of the towns in Middlesex County, were under-represented on three jury panels in July 1983. Defendant neither provides, as was provided in State v. Ramseur, supra, 106 N.J. at 213-14 & n. 41, 524 A.2d 188, a geographical-inference study to determine whether jurors resided in a census tract with a high- or low-minority population nor conducted telephone surveys to determine the percentage of minorities on the jury lists. Id. at 213, 524 A.2d 188. At best defendant argues only that certain municipalities were under-represented, not that a cognizable
Likewise, defendant has not satisfied the second prong of either test. He has shown neither that the under-representation was substantial over a significant period of time (equal protection) nor that the representation was unfair and unreasonable over time (sixth amendment). Defendant's claim focuses on three jury panels selected over a three-week period in July 1983. Whatever a significant period of time might be, it surely is not three weeks.
Moreover, defendant proves neither systematic exclusion (fair cross-section) nor discriminatory purpose (equal protection). Middlesex County jury panels are selected from voter-registration and motor-vehicle lists. We have found that procedure to be facially neutral. See State v. Ramseur, supra, 106 N.J. at 224, 524 A.2d 188. Defendant does not show that that selection procedure was applied here in a "non-neutral" or discriminatory manner.
Nor is there merit to defendant's claim that he was entitled to discovery of materials held by the Jury Commissioner regarding the selection process. Essentially, defendant contends that fundamental fairness calls for an order for discovery because constitutional rights are implicated. Defendant has not independently substantiated his claim of under-representation. Instead, with the use of a blanket discovery request, defendant sought to shift to the State the burden of demonstrating the validity of the jury-selection process. The trial court correctly denied his request.
Defendant argues that the voir dire was inadequate because the trial court asked "closed" questions, suggested "correct" answers to potential jurors, and ...