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State v. Pennington

Decided: June 21, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK PENNINGTON, DEFENDANT-APPELLANT



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

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

Pollock

[119 NJ Page 556] A jury found defendant, Frank Pennington, guilty of capital murder, felony murder, and possession of a firearm with the intent to use it unlawfully. He appealed the capital conviction as of right. R. 2:2-1(a)(3). As the State concedes, the trial court failed to instruct the jury that defendant was not guilty of capital murder if he knowingly or purposely caused serious bodily injury that resulted in death, as distinguished from knowingly or purposely causing the death of the victim. That failure contravenes our subsequent decision in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), and requires reversal of defendant's conviction for capital murder.

-I-

The tragic events underlying this appeal occurred shortly after 1:00 a.m. on September 2, 1986, in "Sarge's," a neighborhood bar in East Rutherford. Defendant arrived about 11:30 p.m. A half hour later, the victim, Arlene Connors, came to help her daughter, Pam, close the bar. At about 1:00 a.m., Arlene announced that she was closing for the night. Defendant, who had drunk three beers at Sarge's, asked for a fourth, which Arlene poured while he went to the men's room. The other customers left, and defendant returned to his seat at the bar. While Pam started to sweep the floor, Arlene washed glasses in the sink opposite defendant.

The ensuing events, critical to this appeal, are subject to various interpretations. The parties agree on few material facts, except that defendant fired a single shot, which struck the victim in the heart, killing her. In a statement given to the police the night of the shooting, Pam stated that while facing away from the bar, she heard her mother curse at defendant. When she turned around, she saw her mother throw a glass at defendant. She then noticed a smoking gun in defendant's hand and heard her mother yell, "He shot me."

At trial, however, Pam denied that she saw her mother throw a glass at defendant. There, she testified that while she was turned away from the bar, she heard her mother say to defendant, "I hate to tell you this, but it's the bewitching hour." Defendant responded, "Bewitch this." Almost simultaneously, Pam heard "a lot of commotion," including the sound of breaking glass. Her mother said, "You son of a bitch." Turning around, Pam saw her mother leaning on the bar with the bottom of a broken glass in her right hand. Pam's trial testimony was corroborated to some extent by broken glass at the scene, which was located almost exclusively on the bartender's side, but not on the customer's side, of the bar.

In a sworn statement given to the police, defendant described a sequence of events similar to those included in Pam's statement,

but different from her trial testimony. Defendant related that after the other customers had left, he pulled from his waistband a gun, which had three safeties. He told the victim, "I don't want to hurt nobody, I just want the money at the register." He then turned to Pam and told her to join her mother behind the bar. When he turned back to face Arlene, she cursed and threw a glass, which hit him in the chest. Defendant ducked to avoid the glass, and as he straightened up, he pulled the trigger of his gun. Defendant did not recall when he removed the three safeties on the gun, but speculated that he may have done so when he announced the robbery or after he ducked to avoid the thrown glass.

While giving his statement to the police, defendant physically demonstrated the events surrounding the shooting. At trial, Sergeant John Scioli of the Bergen County Prosecutor's Office reenacted defendant's movements. According to Sergeant Scioli, defendant stood facing Arlene with the gun in his right hand and his arm extended perpendicularly from his body. When Arlene threw the glass, defendant bent down to the left, bringing his right arm across the front of his body. Then he straightened up, and with his right hand at waist height pulled the trigger. The sergeant related defendant's description: "I just sort of ducked, and as I came back up, you know, like I don't feel like I really meant to shoot her, I just pointed the gun, and it just went off. I don't even remember taking the safety off the gun." Sergeant Scioli also related that defendant said that the victim's actions made him shoot. Believing that he had shot her in the shoulder, defendant did not realize that she was seriously injured. Showing the sergeant a scratch on his chest, defendant indicated it might have been inflicted when Arlene threw the glass at him.

At trial, the State challenged defendant's contention that a thrown glass could have caused the scratches on his chest. The State presented photographs that had been taken the day after defendant gave his statement to the police. According to the State, other injuries on defendant's body demonstrated that the

chest scratches were too old to have been inflicted on the night of the shooting. Defendant countered with expert testimony that the wound on his chest could have been caused by impact of a blunt object such as a thrown glass, even if the glass did not break.

Defendant's wife, who had waited for him in their car outside the bar during the robbery, corroborated his version of the shooting. She testified that when defendant returned to the car, his hair and shirt were wet, and he smelled like beer. In addition, as defendant entered the car, he told his wife, "I just shot a woman. I didn't mean to do it. I didn't want to do it. I just shot a woman."

Medical experts disagreed whether the angle of the path of the bullet confirmed the State's or defendant's version of the shooting. The bullet had entered the victim's body on the outside of the left breast and had traveled in a downward path. From this and other evidence, the State's expert concluded that the shooting could not have occurred as described by defendant. Defendant's forensic pathologist concluded, however, that defendant must have returned to an upright position after ducking to avoid the glass. According to defendant's expert, if defendant had been standing upright and the victim had ducked, the bullet would have caused a wound consistent with that actually inflicted.

In October 1986, a Bergen County grand jury charged defendant with purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and -3a(2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); and possession of a firearm with the purpose to use it unlawfully, contrary to N.J.S.A. 2C:39-4a. Pursuant to Rule 3:13-4(a), the prosecutor served defendant with a notice of aggravating factors that the State would seek to prove in support of a death sentence. See also N.J.S.A. 2C:11-3c(2)(e) (requiring the prosecutor in a capital case to give the defendant notice of any aggravating factors prior to the sentencing proceeding). In that notice, the State alleged that

defendant had previously been convicted of murder and that the subject murder was committed while defendant was engaged in a robbery. N.J.S.A. 2C:11-3c(4)(a) and -3c(4)(g).

Because the evidence regarding defendant's intent in shooting the victim was ambiguous, the trial court instructed the jury not only on the three crimes charged in the indictment, but also on aggravated manslaughter and reckless manslaughter. N.J.S.A. 2C:11-4a and -4b(1). The jury, however, found defendant guilty of the three indicted offenses: purposeful or knowing murder, felony murder, and possession of a firearm with the intent to use it unlawfully.

-II-

Defendant argues that his conviction for capital murder must be set aside in light of our decision in State v. Gerald, supra, 113 N.J. 40, 549 A.2d 792. We agree. The offense for which defendant was convicted, purposeful or knowing murder, includes both the intent to cause death or the intent to cause serious bodily injury. Id. at 83, 549 A.2d 792. In Gerald, 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:11-3a(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." Id. at 69, 549 A.2d 792. Because the instructions in this case did not satisfy Gerald, we cannot determine whether the jury convicted defendant of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury that resulted in death. Without that determination, defendant may not be convicted of capital murder.

Although this trial preceded Gerald, the court, to its credit, considered the constitutionality of imposing the death penalty on one who intended to cause only serious bodily injury. Specifically, the court noted our statement in State v. Ramseur, 106 N.J. 123, 194, 524 A.2d 188 (1987), that "while intent to do

only serious bodily harm could not formerly support a first-degree murder charge, it may similarly be insufficient to support a capital sentence today because of the constitutionally required culpability standards regarding a capital defendant's intent to kill." Relying on the United States Supreme Court decision in Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987), however, the trial court concluded that it would be constitutional to impose the death penalty for purposeful or knowing murder, even if the defendant did not intend to cause death. As a result, in its jury instructions, the court did not distinguish between the different intended consequences. Instead, in defining purposeful or knowing murder, the trial court stated, in relevant part:

Now, let me get to the issue which has been the focus, I think it's fair to say, of the arguments of the attorneys, and that is, whether Frank Pennington did indeed act purposely or knowingly on the night in question.

"Purposely" means intentionally. It means somebody acted with the intent or the design or the conscious object of accomplishing something. In the context of this case, when we ask if Frank Pennington acted purposely, the question is whether, when he acted, he did that with the conscious object, the intent, the purpose, of causing the death of Arlene Connors or causing her serious bodily injury resulting in her death.

[W]hen you ask if Frank Pennington acted knowingly, the question is whether he knew, was he aware that his shooting Arlene Connors, if you find that he did shoot Arlene Connors, was practically certain to cause her death or serious bodily injury resulting in her death?

Omission of a Gerald charge is reversible error if the evidence is "minimally adequate" to provide a rational basis for the jury to find that defendant intended to cause serious bodily injury. State v. Pitts, 116 N.J. 580, 615, 562 A.2d 1320 (1989). Our review of the record leads us to conclude that defendant cleared this "low threshold." State v. Crisantos (Arriagas), 102 N.J. 265, 278, 508 A.2d 167 (1986).

According to defendant, he was startled when the victim threw a glass at him, and he fired his gun reflexively. That account of the shooting is supported by Pam Connors' statement

that she saw her mother throw a glass at defendant. Moreover, defendant's wife testified that he told her immediately after the shooting, "I just shot a woman. I didn't mean to do it."

Contrary to the State's assertions, the fact that the defendant fired a single shot that hit the victim's heart does not necessarily prove that defendant intended to kill. Although the shooting occurred at close range, the evidence does not compel the conclusion that defendant aimed for the heart. In fact, Sergeant Scioli testified that defendant thought the bullet had struck the victim in the shoulder. Likewise, defendant's removal of the gun's three safeties does not necessarily indicate an intent to kill. Defendant would have had to remove the safeties even if he had intended to cause serious bodily injury rather than death.

In deciding to instruct the jury on aggravated and reckless manslaughter, the trial court concluded that "there is evidence on which the jury could accept a version which, either the gun went off accidentally or the gun went off as an, almost, reflective [sic] reaction after Mrs. Connors threw the glass or drink at Mr. Pennington." See State v. Rose, 112 N.J. 454, 482, 548 A.2d 1058 (1988) (rejecting defendant's argument that jury should have been charged on aggravated manslaughter because evidence indicated shooting was volitional). Thus, the court believed the evidence supported the conclusion that defendant's conduct was either knowing or purposeful, on the one hand, or, on the other, that it was reckless. To the extent that the evidence sufficed to support a charge that defendant acted recklessly, it raised the possibility that he did not intend to cause death. That possibility, on the facts of this case, suggests that the jury reasonably could have found that defendant intended to cause not death but serious bodily injury. The question is not whether a finding of intent to cause serious bodily injury is likely, but whether the evidence provides a rational basis for such a finding. If so, the jury should have

been permitted to accept or reject that alternative. Given the inherent ineffability of mental states, the determination of defendant's specific intent is best left to the jury. Crisantos, supra, 102 N.J. at 284, 508 A.2d 167 (O'Hern, J., concurring in part and dissenting in part). Indeed, the care taken by the trial court in constructing its charge leads us to conclude that had Gerald been decided before the trial of this matter, the court would have conformed its charge to that opinion. Because the court did not instruct the jury in accordance with Gerald, however, we reverse defendant's conviction and remand the matter for retrial.

Our dissenting colleague Justice Stein disagrees with that result. He recognizes that "the critical issue at trial was defendant's mental state," post at 618, 575 A.2d at 853, and he acknowledges "that there may be an identifiable ambiguity in the jury's verdict * * *." Ibid. He does not believe, however, that the evidence "suggests that defendant's 'conscious object' was to cause only serious bodily injury, but not death, to Mrs. Connors, or that defendant was 'practically certain' that only serious bodily injury, but not death, would result from the shooting." Post at 619, 575 A.2d at 854. Significantly, the dissent states that

[i]t is quite conceivable that on this record the jury could have concluded that defendant intended to cause either death or serious bodily injury, being indifferent to which of those consequences actually occurred. In view of the jury's conclusion that defendant did not fire the gun accidentally or recklessly, it is consistent with the evidence for the jury's verdict to have constituted a determination that defendant's "conscious object" was either to kill or to seriously injure Mrs. Connors, or that defendant was "practically certain" that death or serious bodily injury would occur, and that defendant did not consciously distinguish between those results.

[ Post at 619, 575 A.2d at 854.]

As the dissent reads Gerald, "a defendant whose purpose is to cause either death or serious bodily injury, either being an acceptable result, remains subject to the death penalty." Ibid. He acknowledges, however, "that the jury charge in this case was not consistent with our holding in Gerald * * *." Ibid. Having found the charge to be erroneous, he further finds the

error harmless, because "there is no rational basis in this record for" a verdict "that defendant's intention was only to cause serious bodily injury to Mrs. Connors, but not death." Post at 620, 575 A.2d at 854. Our reading of both Gerald and of the record differs from that of the dissent.

Gerald plainly holds that a defendant whose purpose is to cause serious bodily injury is not subject to the death penalty. 113 N.J. at 89, 549 A.2d 792. Under Gerald, a defendant is subject to the death penalty only if he or she intended the victim's death. Id. at 85, 549 A.2d 792. Thus, a defendant whose intent is "to cause either death or serious bodily injury, either being an acceptable result," post at 620, 575 A.2d at 854, is not subject to the death penalty. Gerald, supra, 113 N.J. at 89, 549 A.2d 792.

As explained above, moreover, we find the evidence to be sufficient to support a Gerald charge. Supra at 561-563, 575 A.2d at 822-823. The trial court found the evidence sufficient to support charges on knowing or purposeful murder, aggravated manslaughter, and reckless manslaughter. Without the guidance of Gerald, which had not been decided at the time of trial, the court charged the jury that it could find defendant guilty of knowing or purposeful murder if it found that in shooting Mrs. Connors, he "was practically certain to cause her death or serious bodily injury resulting in her death." Thus, the court believed that the evidence would support a verdict that defendant had intended to cause only serious bodily injury.

Through the manslaughter charges, the court in effect told the jury that it could find defendant guilty of aggravated or reckless manslaughter if it determined that he had not intended to cause either death or serious bodily injury. Implicit in those charges, therefore, was the court's belief that the evidence was sufficient to establish that defendant had not acted intentionally when shooting the victim. It is too fastidious to conclude that the evidence would not support a charge that defendant

had acted intentionally, but with the intent to cause serious bodily injury rather than death. See post at 615-616, 575 A.2d at 852.

The jury should determine where defendant's mental state falls on the spectrum between the intent to cause death and reckless conduct. In light of Gerald, defendant should not have been found guilty of capital murder if the jury believed that he had acted with the intent to cause serious bodily injury. Because of the understandable failure of the charge to distinguish between capital and non-capital murder, we cannot determine whether the jury found defendant guilty of an offense for which he should be put to death. Consequently, we must reverse his conviction.

-III-

Defendant also asserts as reversible error numerous instances of prosecutorial misconduct. Because we are reversing both the guilt and penalty verdicts on other grounds, "we need not determine the likelihood that the prosecutor's misconduct led to an unjust verdict." State v. Williams, 113 N.J. 393, 446, 550 A.2d 1172 (1988). Our review of the record, however, leads us to conclude that the prosecutor, if he did not cross the line of impropriety, came perilously close to committing reversible error. To avoid problems on remand, we offer the following guidelines.

As a general rule, the test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct "was so egregious that it deprived defendant of a fair trial." Ramseur, supra, 106 N.J. at 322, 524 A.2d 188. The "fair trial" standard applies to alleged prosecutorial misconduct in both the guilt, State v. Koedatich, 112 N.J. 225, 323, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989), and penalty phases of a capital trial, Rose, supra, 112 N.J. at 509-11, 548 A.2d 1058. Defendant, however, urges that we adopt an even stricter standard and

that prosecutorial misconduct should compel a reversal in a death penalty case unless it had "no effect" on the sentencing decision. Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S. Ct. 2633, 2646, 86 L. Ed. 2d 231, 247 (1985). In Caldwell, the United States Supreme Court adopted the "no effect" test in a case in which the prosecutor improperly told the jury during his penalty-phase summation that it was not ultimately responsible for the defendant's death because the defendant could appeal the verdict. Id. at 324-26, 105 S. Ct. at 2637-38, 86 L. Ed. 2d at 236-37. Just one year after deciding Caldwell, however, the Court refused to extend the "no effect" test to prosecutorial misconduct in the guilt phase of a capital trial. See Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986). The Darden Court stated that the "no effect" test applies only to those comments that "mislead the jury as to its role in the sentencing process in a way that allows it to feel less responsible than it should for the sentencing decision." 477 U.S. at 183 n. 15, 106 S. Ct. at 2472-73 n. 15, 91 L. Ed. 2d at 158-59 n. 15. As we read Darden, the "no effect" test does not apply in other contexts, such as those presented on this appeal. Thus, the test by which we shall evaluate the prosecutor's misconduct is whether it was so egregious as to deny defendant a fair trial.

Applying the "fair trial" standard, we find the prosecutor's conduct wanting in six separate areas: in both phases, he introduced prejudicial victim-impact evidence, referred to other crimes committed by defendant, instructed the jury to convict, and made derogatory references about defendant; and in the penalty phase, the prosecutor improperly cross-examined defendant's experts and referred to defendant's future dangerousness.

A. Use of Victim-Impact Evidence

Throughout the guilt and penalty phases of the trial, the prosecutor consistently emphasized the character and background of the victim, as well as the impact of her death on her

family. Defendant challenges those statements on the grounds that (1) use of such inflammatory and prejudicial evidence during the guilt phase denied him due process of law under the state and federal constitutions, and (2) use of the evidence to encourage the jury to return a death sentence violated the eighth amendment of the United States Constitution. Although we need not resolve those constitutional claims, we are satisfied that the extensive discussion of the victim and her family's grief were inappropriate.

In his opening remarks during the guilt phase, the prosecutor focused extensively on the victim:

Arlene Connors is not here. But once she looked, she touched, she spoke, she saw, she breathed, she lived. She even loved. She cannot come into this courtroom in flesh and blood and tell you what happened to her. She will rely, because she has been robbed by him of voice and memory, she will rely on the voices and memories of those who loved her, who will tell you how she was murdered by that cruel man.

Arlene Connors, through their memories, through their voices from that witness stand, flesh and blood, will live again and she must live again in this courtroom because you must know what kind of a woman was killed and how important this case is.

Let us consider for a moment that life and memory. Let us consider Arlene Connors.

At the time of her death, September 2nd, 1986, Arlene Connors was fifty-six years old, robust health, many fruitful years before her. She was a loving wife to her husband Frank. She loved and was loved by eight children for whom and in whom her memory still lives and will always live. She had sixteen grandchildren.

She and her husband Frank were in the tavern business and had been for many years. They were just basic ordinary people. They didn't own a Glitzy [sic] glamorous club. They owned a simple neighborhood bar called Sarges in East Rutherford. It was named after Frank Connors' rank in the Marine Corps. * * * They made a modest living with the help of their children. Their children worked the bar with them. Their children, who each held down their own full-time separate jobs, helped mom and pop run the bar. As they still do, for Frank Connors alone because this is a living family, and a close, tightly-knit family.

During the trial, the prosecutor elicited testimony from both Pam and Tommy Connors regarding their parents and family. Pam Connors described her last hours with her mother on the day of the shooting. The prosecutor then used that testimony

during his guilt-phase summation to focus the jury's attention on the victim:

Pam Connors got a gift on September the 1st, 1986. It was the gift of spending the last full day of her mother's life together with her. It was a sunny holiday, unmarred of the clouds of tragedy that were to come. She will cherish that gift, however, next to the memory of the terror and the tears of her mother's murder.

Why is the truth so necessary? Why, * * * do [you] have to face perhaps a hard question and find him guilty of purposeful or knowing murder? * * * I think the best answer to that is an indirect answer, and I think it was given to us by Tommy Connors. * * * Tommy Connors says at one o'clock in the morning he was summoned from sleep by his sister Pam who was calling out to him hysterically, like a school girl, a child, Mommy's been shot. Mommy's been shot. In those situations we are all children again. He came down and he ran into that bar and he knelt down by his mother and he called for a blanket. He covered his mother to keep her warm. He spoke to her. He told her, I love you. I love you. I love you. He tried to lift her head so he could remove some more of the glass, but he couldn't because her head was too heavy and he was afraid that he would hurt her. I love you, Ma. I love you.

In his closing remarks, the prosecutor implied that the jury would "insult" the victim and "dishonor" the State's witnesses if it accepted defendant's version of the facts and did not find him guilty of capital murder:

[Defendant] invites you to insult your memory of Arlene Connors. So don't accept that invitation.

Ladies and Gentlemen of this jury, do not insult Arlene Connors with lies and do not dishonor dedicated police officers like Sergeant John Scioli by rendering a verdict which call them liars.

That's why it's important; flesh and blood. Because Arlene Connors was a human being who, Ladies and Gentlemen, was loved. She was flesh and blood and her memory deserves the truth. Don't dishonor it. Don't become his accomplices in lies and deceit. Don't become like he is, a coward who cannot face the truth. Don't insult Arlene Connors' memory.

Whatever else you do in this case, whatever else you do in the second phase, give Arlene Connors and her family the dignity and the truth that they deserve as human beings. Arlene Connors relied on her children to give her voice and memory and now she relies on you.

The prosecutor made similar statements during his penalty-phase summation:

Our law is merciful. Our law is tolerant but we are not speaking here of mitigating a theft or a burglary even or even one murder. Two murders. The things that he has put before you in that regard seem to me irrelevant. As irrelevant as the tears that [defense counsel] coaxed from his poor, unfortunate mother. For against those I could set the tears of Pamela, Tommy Connors, the entire Connors family for those tears tell us more about Frank Pennington. They tell us about his character, about his actions in sowing sorrow.

And so one final time I'm going to ask you to live up to your oath and apply [the] law. I'm going to ask you to reratify and exalt that law which holds us together. I'm going to ask you to return the verdict that says that Frank Pennington alone is responsible; that he himself has brought himself here by his own chosen action; that he is responsible, not his mother, not the Marines, not the system, not anyone but himself. I'm going to ask you to announce that the law that keeps us together and is patient and long suffering and merciful must finally, even if it's just for the victim, be just.

[Emphasis added.]

The United States Supreme Court has held that admission of a victim-impact statement in a capital case violates the eighth amendment because it "creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner." Booth v. Maryland, 482 U.S. 496, 505, 107 S. Ct. 2529, 2534, 96 L. Ed. 2d 440, 450 (1987). In Booth, the Court condemned the use of evidence showing "family members' opinions and characterizations of the crimes." Id. at 508, 107 S. Ct. at 2535, 96 L. Ed. 2d at 451. As the Court noted,

[o]ne can understand the grief and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of those feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.

[ Id. at 508, 107 S. Ct. at 2536, 96 L. Ed. 2d at 452.]

Thus, the admission of a formal victim-impact statement is wrong. Other evidence regarding a victim's character or personal life may be admitted if relevant to a disputed issue and if the probative value of such evidence outweighs the risk of undue prejudice or confusion. Evid.R. 4. Although the scope of Booth is unresolved, South Carolina v. Gathers, 490 U.S. 805,

109 S. Ct. 2207, 2212, 104 L. Ed. 2d 876, 884 (1989) (O'Connor, J., dissenting), the Supreme Court has also found reversible error where the prosecutor rather than the victim's survivors describe the victim's personal characteristics to a capital jury. Id. 490 U.S. 805, 109 S. Ct. at 2210-11, 104 L. Ed. 2d at 883. We recognize that it is impossible to avoid referring to the victim in a capital trial. As we have stated, however,

[t]his evidence, though admissible, cannot be used in a manner calculated to so confuse or impassion the jury that it inappropriately intertwines irrelevant emotional considerations with relevant evidence. There are occasions when evidence relating to the victim's character and personality may be probative of critical aspects of the trial, e.g., defendant's assertion of self-defense or provocation. Where, however, * * * the victim's character has no bearing on the substantive issue of guilt or the penalty to be imposed, the prosecution may not comment on the evidence in a manner that serves only to highlight the victim's virtues in order to inflame the jury.

[ Williams, supra, 113 N.J. at 451-52, 550 A.2d 1172.]

We need not detail each of the prosecutor's references to the victim to conclude that he tried to inflame the jury to impose the death penalty based on factors that the law deems to be irrelevant. Although the evidence reveals that Arlene Connors was a good woman with a loving family, a murder conviction or death sentence cannot be grounded on the character of the victim. To conclude otherwise would imply that "defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. * * * [O]ur system of justice does not tolerate such distinctions." Booth, supra, 482 U.S. at 506 n. 8, 107 S. Ct. at 2534 n. 8, 96 L. Ed. 2d at 450 n. 8. Consequently, the prosecutor should not have played on the understandable grief of the Connors family. Such comments effectively devalue the deaths of those victims who have no family or those whose relatives are "less articulate in describing their feelings even though their sense of loss is equally severe." Id. at 505, 107 S. Ct. at 2534, 96 L. Ed. 2d at 450.

On the evidence, it was virtually a foregone conclusion that defendant would be convicted of some kind of homicide. Defendant did not dispute that he shot the victim in the course of a

robbery. Contrary to the State's contention, the prosecutor's comments cannot be justified as "a comment on the circumstantial nature of the evidence." A realistic reading of the comments leads to the inevitable conclusion that the prosecutor intended to divert the jury from the material facts to the worthiness of the victim. He intended to use the character and family of the victim to excite the jury. See, e.g., id. 482 U.S. at 509-11, 107 S. Ct. at 2536-37, 96 L. Ed. 2d at 453. Defendant's culpability for capital murder, however, depends not on whether the victim was a good or bad person, but on the elements of the offense. The prosecutor's comments were unnecessary and inappropriate. As we stated in Williams, even "[c]onceding that any capital case will be prone to emotional displays by those giving testimony, * * * it is not too much to expect and require that officers of the court conduct themselves without resorting to improper appeals to the jury's emotions." Ibid.

B. Evidence of Other Crimes

Defendant also alleges that during the guilt phase, the prosecutor deliberately informed the jury of other crimes he had committed, even though evidence of those crimes was not admissible. Before trial, the court had denied the State's motion to introduce evidence of another robbery committed by defendant shortly after the shooting. Nonetheless, when cross-examining defendant's wife, the prosecutor embarked on the following line of questioning:

Q. And you went to a motel, isn't that correct?

A. Yes.

Q. But he [defendant] didn't go into the motel. You went into the motel?

A. Yes.

Q. Did he tell you how much money he got from the robbery and from the murder?

A. At that time?

Q. Yeah.

A. No.

Q. Did he give you money from the robbery in order for you to register at the motel?

A. Yes.

Q. And in fact he told you he didn't get enough money, isn't that correct?

A. Yes.

Q. And you went into the motel alone?

A. Yes.

Q. And he went elsewhere, is that correct?

A. Yes.

The trial court reprimanded the prosecutor during his guilt-phase summation for referring to defendant's disappointment with the amount of money he obtained from robbing "Sarge's":

He's so upset, this cold man with ice here, is so upset, but he's okay to drive, he's drenched with beer, but he doesn't go into the motel room to change or wash, he goes elsewhere. Sure, we know, she told us, he's upset. You know what he was upset about? In his words that she conveyed from the witness stand: He was upset, as he told her, because he didn't get enough money from robbing and killing Arlene Connors. So he didn't go into the motel, he went elsewhere and she went in alone. Mary Claire Pennington, just like him.

THE COURT: * * * I don't know what was implied when you referred to going elsewhere, but there has been no testimony as to where anyone went after this incident and certainly the jury should not draw any inferences from that or take any account of it. There is nothing in the record about that and there shouldn't really be any reference to it. And I'll ask the jury to ignore it.

Go ahead please.

At another point in his summation, the prosecutor implied that defendant had committed other robberies by referring to defendant and his wife as "professionals" for whom robbery was a way of life. Moreover, the prosecutor insinuated that defendant had previously used the murder weapon:

THE STATE: Mary Claire Pennington, just like her husband, because what does she do when he goes in to do the stick up? She falls asleep. Doesn't bother her. She's not nervous. Catch a few winks. Just like her husband. A stick up, nothing out of the ordinary, just another everyday occurrence. Just like her husband, just like him.

Now she tells you the story. Didn't tell it to the investigators when they were talking to her after the arrest, but she comes in and she gives you his version. And, of course, [defense counsel] says, well, the only way we can know what was in his mind is from his wife.

We know what was in his mind. He told us already in black and white. But conveniently she remembers now that she was sleeping and she's awakened by pounding on the window and she sees her husband, she let's [sic] him in, and his hair is soaked with beer, his face is soaked with beer. There is beer on his clothing. And he just happens to tell her, I just killed a woman, I didn't mean to do it, I didn't want to do it. He's so upset, this professional, this professional is so --

[DEFENSE COUNSEL]: I object, Judge.

THE COURT: Sustained. I don't want any further references to her as a professional and particularly no further references as to something being [an] ordinary run of the mill event. We're talking about this event and there is no indication of any professionalism or anything else other than this event.

And I'll ask the jury to please disregard any such comments.

THE STATE: But Frank Pennington said something very important in his statement about reflexes. Do you remember it? Do you remember it? He was trying to convince Scioli that maybe it was a reflexive action, so he said, well, I don't know how the safety got taken off, he said it one time, well, you know, maybe it was my belt, it was rubbing against my belt, although maybe when I was coming up from the crouch, I took it off in a reflex. What does that tell you? He's used it before. He knows this gun. He knows the three safeties. He's had it since August and he's fired it. So familiar that this gun is not going to go off accidentally.

Although defense counsel did not object to the prosecutor's reference to defendant's prior use of the gun, the trial court on its own motion instructed the jury not to infer from the prosecutor's statements that defendant had committed other crimes:

I want to make one other point on something [the prosecutor] said when he referred to Mr. Pennington being familiar with this gun and having used it before. I take it [he] meant by that or he was demonstrating familiarity with the gun and was not suggesting, I assume he was not suggesting, that it had been used in any prior crime or in any other way, because there is no evidence of that. That is not part of this case. As I say, I don't think that's what was being suggested, but please, if any of you drew any inference of that, put it out of your minds. His familiarity with the gun has some significance as to what he might have done in Sarges Tavern that night, but shouldn't be read by anyone as suggesting any other criminal activity of any kind.

In an apparent attempt to inflame the jury during the penalty phase, the prosecutor also presented inadmissible evidence regarding defendant's prior murder conviction. At trial, the court ruled that the State could present evidence regarding only the name and age of the victim, the manner of death, and the victim's relationship to the defendant. See N.J.S.A. 2C:11-3c(2)(f). The State and defense counsel then stipulated to a statement regarding the prior murder conviction. The stipulation provided:

Frank Pennington, as a result of a plea, was found guilty of first degree murder February 19, 1974, of the murder of Robert Davis, age thirty-three

years. The autopsy on Robert Davis revealed that he had been shot with a shotgun in the back of his right thigh and in the right side of his head. Death was caused by the shotgun wound to the head, which lacerated the victim's brain. Mr. Pennington and Mr. Davis were not related.

Despite the court's ruling and the stipulation, the prosecutor stated during his penalty-phase opening:

When Frank Pennington entered Sarges Tavern, September 1st, 1986, he did not just carry death with him on that date. Death was an ingrained action and purpose in Frank Pennington.

On February the 19th, 1974 he took a shotgun in Newark, New Jersey, shot a young thirty-three year old man in the back of the leg with that shotgun and then blew away half his face.

THE COURT: Delete the reference to "blew away half his face." That's not part of the record in this case. Please ignore it.

Disregarding that reprimand, the prosecutor again violated the stipulation during his penalty-phase summation:

There are no doubts about them [the two aggravating factors]. He admits to them. That this murder here, the murder of Arlene Connors, was committed during the course of a robbery; and that he has a prior murder in 1974 in which he took a ...


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