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State v. Long

Decided: June 21, 1990.


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

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


Defendant has been found guilty of murder in a liquor-store holdup. The pivotal question in his appeal is whether the jury verdict establishes guilt of knowing and purposeful murder, therefore rendering defendant death-eligible. The case was tried before our decision in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). In Gerald, the Court held that the 1979 amendments to the Code of Criminal Justice had created two forms of murder. One is intentional, death being defendant's purpose, the other unintentional, the death occurring as a result of the infliction of serious bodily injuries on the victim, but the death, nevertheless, not intended by defendant.

This latter form of murder was the counterpart of non-capital, second-degree murder under pre-Code law. Under pre-Code law, it was the deliberate, premeditated murder (first-degree murder) that merited death. Rather than incorporate this pre-Code terminology into the present Code, we refer to non-capital murder under the Code as "serious bodily injury murder" (SBI murder). In order to establish death-eligibility, the jury must determine that the defendant had the knowledge or purpose to kill and not the knowledge or purpose merely to inflict serious bodily injury that happened to result in death. Id. at 69, 549 A.2d 792. The Court held that the contrary interpretation, that execution could result from an unintended homicide, would render the statute unconstitutional under New Jersey's prohibition against cruel and unusual punishment. Id. at 89, 549 A.2d 792. In order to conform with what we believe

to be certain legislative intent and constitutional principle, the jury's verdict must establish that the accused had the knowledge or purpose to kill.

Accordingly, the central question is whether the jury's verdict established that defendant had the knowledge or purpose to kill. Because this question affects most of the trial issues, we shall focus our opinion primarily on it, then address issues not resolved thereby.


The case has a very complex trial record but a very simple factual scenario. On December 11, 1982, a gunman clad in a red baseball jacket, wielding a silver revolver, shot to death Albert Compton, the night manager of the Holiday Liquor Store. There was a single bullet to the chest. There were no witnesses to the killing itself. There was one witness on the street who identified Ronald Long as being in the vicinity of the liquor store around the time of the crime.

Earlier on the same evening, a similarly-clad gunman with a silver pistol had shot Alfred Carmichael at an apartment within walking distance of the Holiday Liquor Store. Several witnesses linked Ronald Long to the first shooting. If the same gun were used in the two crimes, Long would be a prime suspect. Ballistic tests proved that the same type of gun was used in both crimes. There was overwhelming evidence that defendant had access to such a gun, which was owned by his cousin, Harold Long. A major trial issue, then, was whether it was correct to try the Carmichael and liquor-store crimes together. A final wrinkle to the case was that a third holdup and shooting had occurred that same night with a perpetrator using the same type of revolver. The victim of this crime did not identify Ronald Long as the gunman.

The trial was set against this general background. The State alleged that Ronald Long had perpetrated the first two crimes.

It gathered scientific and testimonial evidence in support of those contentions.


For purposes of this appeal and without endorsing each recital, we will use the issue-oriented version of facts as set forth in defendant's brief.


1. Illegal possession of the handgun

The State alleged that in early December 1982, defendant, Ronald Long, stole a .25 calibre Raven Arms handgun and hollow-nosed bullets from his cousin, Harold Long, in Harrisburg, Pennsylvania. The State contended that this silver gun was used in the Carmichael and Compton shootings. Defendant admitted that he had Harold's gun in his possession in Atlantic City while staying with his brother Larry Long, in early December, but he claimed that he had bought it from Harold on December 2 and sold it for $90 on December 7 or 8, 1982 (three or four days before the shootings), to a Rastafarian friend of Carmichael. Defendant claimed that he wanted the gun for his own safety after having previously been shot.

Harold, however, had reported to the Harrisburg police that the gun had been stolen. He testified that when he saw defendant in late December while visiting defendant's brother, who was in a New Jersey prison, he had demanded that defendant return the gun. When various witnesses led the police to Harold, he gave the police that information along with hollow-nosed bullets similar to those he claimed were in the gun at the time defendant took the gun. The defense sought to undermine Harold's credibility by showing that he had given a false alibi for the night of the murder.

Defendant did not deny being in Atlantic City, and various witnesses testified that he had the gun in his possession. The question is whether he had it on the night of the shootings.

2. The Carmichael shooting

Carmichael testified that he and defendant were friends who had met through defendant's brother Joseph. Carmichael said that defendant came to his apartment about 6:00 p.m. on December 11, the night of the crimes, asking to borrow money. Carmichael refused. Carmichael then took defendant to Helen Thompson's apartment. While they were at Thompson's apartment, a man named Oliver Johnson stopped by. Johnson and Carmichael returned to Carmichael's apartment, and defendant joined them shortly thereafter. After Johnson left, defendant again asked to borrow money. When Carmichael refused, defendant showed him a handgun and asked him if he wanted to buy it. Carmichael got up to take the trash out. As he was walking down the hall, he was shot in the neck, behind the left ear. The defense contended that Carmichael had been shot by another person, a fact he did not want to disclose to the police. Carmichael gave conflicting stories to the police. He told the examining physician that he had fallen down and struck his head. He repeated that story to the police and said nothing about defendant having shot him. He later said that a man named Jerome Finch had shot and mugged him outside of his apartment between 9:00 and 11:00. He eventually told the detectives that defendant, not Finch, had shot him. Carmichael's credibility was questioned because of his drinking habits and other behavior traits and other witnesses contradicted his testimony.

3. The Johnson identification

A key witness was Oliver Johnson, who told the jury that when he went to Helen Thompson's apartment, he saw a black male whom he had never seen before. Later, in Carmichael's apartment, he noticed a red baseball jacket hanging on a chair.

Carmichael told him that the jacket belonged to the other male. When the unknown male returned to Carmichael's apartment, Carmichael introduced him to Johnson as "Joe Long's brother." Johnson claimed that he did not like Joseph Long, so he left. He said he had been at a bus stop about 8:10 p.m. when he saw the "other man" walk past him wearing a red baseball jacket and cap. On Sunday night he went to Carmichael's apartment, where he discovered that Carmichael had been severely injured. Johnson told the police about "the other man with the red baseball jacket and cap at Carmichael's apartment." He did not say that this man had been introduced to him as Joseph Long's brother. It was not until January 6, 1983, after defendant had become the primary suspect through other witnesses, that the Atlantic City Press ran an article about the shootings and defendant's picture with his name underneath furnished by the police. The article described both shootings, listed the victims, and identified defendant as the suspect.

Johnson gave various conflicting statements to the police, but at the time of trial he claimed he was positive that when he saw defendant's picture in the paper, he made the identification in his own mind. The defense sought to attack Johnson's testimony by asserting the unreliability of the police-suggested newspaper photograph, and offered as well to produce the testimony of an expert witness that such a related identification was inherently unreliable. The court refused to permit such expert testimony.

4. The Compton killing

Johnson testified that the man with the red jacket passed him at the bus stop at 8:10 p.m. It was a ten-minute walk from that spot to the Holiday Liquor Store where Albert Compton was shot. Thus, if the man who passed Johnson also shot Compton, the shooting could have occurred no earlier than approximately 8:20 p.m. Another witness, who arrived at the scene and called the police, estimated the time of the murder between 8:00 and 8:30 p.m. The police found that Compton had been shot in the

chest. A single bullet pierced the liver and pancreas and came to rest near the spinal column. The medical examiner determined that excessive blood loss caused the death. The owner of the liquor store established that the lottery machine had been closed as of 8:20 p.m. and the receipts of $795 were missing. There were no fingerprints at the scene. An empty shell case was on the floor.

5. The ballistics evidence

The State's ballistics expert concluded that the same .25 calibre automatic pistol fired the bullets removed from Carmichael and Compton. The Carmichael and Compton bullets, however, were different types of .25 calibre bullets. The defense believed that the gun might have been used in other shootings. There are 70,000 such .25 calibre automatic weapons in circulation, and approximately thirty-five brands exhibit the same ballistic patterns as found on the Carmichael and Compton shells.

6. The Gracco "red herring"

Albert Gracco, an Atlantic City service station attendant, was robbed and shot in the neck by a shell from a .25 calibre handgun at approximately 3:30 a.m. on December 12, 1982. The shell casing was the same as that found at the liquor store. The State's expert determined that Gracco had been shot by the same calibre weapon used in the Carmichael and Compton shootings. Gracco described the assailant as a black male in his early twenties, about five feet eight inches in height and wearing a long trench coat. Johnson had given the same physical description of the man in Carmichael's apartment. Barry Turner, a friend of defendant, claimed that defendant had picked up Larry Long's trench coat. No gunpowder residue had been found on this trench coat. Gracco viewed a lineup that included defendant and six other inmates. He failed to identify defendant, but did identify another man. Defendant was never charged with the Gracco shooting. The State's

theory of the case was that one need only follow the gun forward from Harrisburg to Larry Long's apartment, to Carmichael's apartment, to the liquor store, to see that defendant shot both Carmichael and Compton. The defense's theory, on the other hand, was that one need only follow the gun backwards from the Gracco shooting to see that defendant did not shoot any of the victims. Defendant complains that the trial judge referred to the Gracco incident as a "red herring," and that although the prosecutor did not mention it in his opening statement, he was able to argue to the jury that defendant shot Gracco as well as the other two men.

7. Events subsequent to the shooting

Barry Turner, whom the defense impeached on the basis that he was facing indictment on other charges, claimed that he had seen defendant in Larry Long's apartment at 1:00 a.m. on December 12. He said defendant had been wearing a red jacket and had had about $80 in his pocket. Turner testified that defendant had told him "to read my paper," when he asked defendant where he had gotten the money. The prosecutor confronted Turner with a prior statement about reading something in the papers. In his opening statement, the prosecutor told the jury that defendant had said, "You will read it in the paper." The defense sought to discredit Turner by showing that he had been served with a criminal summons just prior to having given his statement concerning defendant. Defendant testified that he had first learned he was a suspect on December 23 when he telephoned his mother while police officers were visiting her. According to one of the police officers, defendant asked, "Which man died?" Defendant denied this conversation.

8. The confession to Herron Pate

Shortly before trial, Harold Long's mother, Herron Pate, told an Atlantic City detective that on Christmas night 1982 defendant had confessed the murder to her. She had previously furnished the police with his whereabouts. She explained that

the subject of the confession came up by accident while she and the detective were at an airport shortly before trial. She denied that her last-minute revelation was an attempt to save her son, Harold, who was defendant's cousin, from an investigation of his involvement.

9. The Perona identification

William Perona was at the liquor store the night Compton was shot. He noticed a suspicious-looking black male in the store. His identification did not match that given by Johnson. He did not learn of the shooting until December 29, when he read about it in the newspaper. He told the police that he had been in the store around 8:30 p.m. He said that before going into the store, he saw that the winning lottery number for the day had been posted, which meant that he could have been at the store no earlier than 8:20 p.m., the time Compton closed out the lottery machine. He could not have been at the store later than 8:35 p.m., when another customer discovered Compton. Perona told the police that the suspicious-looking man was heavy-set, with a long brown or grey coat. The detective did not believe that Perona was correct about the time he had been in the store. He arranged for Perona to be hypnotized. While under hypnosis, Perona said that he had been in the store just after 8:00 p.m. and had left before the winning lottery number had been posted.

Perona later became a relevant witness when Paul Pettigrew, a jail-house informant, said that defendant told him that a cousin had been involved in the Holiday Liquor Store robbery and that a man who was later hypnotized by the prosecutor had run into the cousin-accomplice at the entrance to the store. The prosecution then used Perona's statement in its opening statement to bolster the credibility of Pettigrew because "only the killer" could have known what Pettigrew knew. The defense moved for a mistrial on the ground that the State had tampered with Perona as a witness by hypnotizing him. But when the court denied this motion, the defense called Perona. He testified

that when he arrived at the store shortly before 8:00 p.m., consistent with his post-hypnotic story, as he was walking out of the store, another man walked in. The man was wearing a dark trench coat with white dress shoes and a pull-over hat. He had a mustache and beard, and was in his thirties. He said that the man's right hand was in his pocket and his left hand at his side. Perona said he drove away, and when he drove back, he saw police cars outside. He estimated that he had left the store and passed by again around 8:10 p.m. The defense offered a witness to show that the hypnosis had impaired Perona's memory and destroyed exculpatory evidence. The judge ruled that this evidence would have the effect of impeaching the credibility of defendant's own witness.

10. The confession to Pettigrew

While awaiting trial in Atlantic County Jail, defendant met Paul Pettigrew, who was also awaiting trial for a series of robberies in the Atlantic City area. He had pled guilty to five of the robberies. He sought to withdraw his plea, but was sentenced to a thirty-five-year term with a seventeen-and-one-half-year parole disqualifier. He was angry with defendant because he had partially influenced him to plead guilty. Pettigrew claimed that just before his sentencing on March 15, defendant had talked to him about the Carmichael and Compton shootings. Defendant admitted shooting Carmichael, and claimed that after he had shot Carmichael, he ran into his cousin. The two men went to the liquor store. On their way in, they encountered a white male who saw the cousin. Defendant mentioned that the prosecutor's office had tried to hypnotize the customer. After the customer left, defendant and his cousin remained in the store while defendant made a purchase. Pettigrew said that defendant then shot the clerk as he reached for a paper bag, or possibly a gun, because "he didn't want to leave [a] witness behind."

Pettigrew admitted that he went to the prosecution hoping for a deal. According to Pettigrew, no promises were made but

the prosecutor said that he would recommend that the sentence be reduced if Pettigrew gave favorable testimony. He was also told that the prosecutor would recommend that he be sentenced to another facility. Pettigrew's motion for reconsideration was still pending at the time of trial. After the jury convicted defendant of the Carmichael shooting and the Compton murder, the court reduced Pettigrew's sentence from thirty-five years with seventeen-and-one-half years parole disqualifier to a straight seventeen-and-one-half-year term with no mandatory minimum, the equivalent of about five years of real time.


The sole aggravating factor the State relied on in the sentencing phase was the felony murder. The defense raised the mitigating factors of defendant's character, N.J.S.A. 2C:11-3c(5)(h); lack of significant history of prior criminal activity, N.J.S.A. 2C:11-3c(5)(f); and defendant's age, twenty-four, at the time of the offense, N.J.S.A. 2C:11-3c(5)(c). The defense called many witnesses to prove defendant's character. His friends described defendant as the leader of his family after his father left when defendant was only ten. Various character witnesses asked the jury to spare defendant's life, but the court sought to restrain such direct appeals to the jury. Defendant's mother said that defendant was the one member of the family whom the others could count on for help after her separation from defendant's father. Defendant had served eighteen months in the Marines. He had been civic-minded. The defendant sought to prove a lack of significant prior criminal activity. To rebut that evidence, the State introduced evidence of four prior offenses, including testimony from a purse-snatching victim from Philadelphia.

The jury unanimously found the felony-murder to be an aggravating factor. It found age not to be a mitigating factor. The jurors were divided on whether defendant's character and lack of prior significant criminal activity were mitigating

factors. The jury unanimously found that the aggravating factor outweighed any mitigating factor beyond a reasonable doubt. The court sentenced the defendant to death and set a date for execution. Defendant appeals to us as of right under Rule 2:2-1(a)(3).


Did the jury's verdict establish death eligibility under N.J.S.A. 2C:11-3c?

The jury's verdict established that defendant was the liquor store killer. Long argues, however, that the verdict does not necessarily establish that he killed intentionally. There were no eyewitnesses to the murder, and the only evidence of intent is Pettigrew's testimony that defendant confessed to him in prison that he had shot Compton because "he didn't want to leave [a] witness behind." However, defendant testified that he had never had this conversation with Pettigrew. A jury could infer that Long inflicted the wounds on the victim without the intention to kill.

The question is a close one. The trial court instructed the jurors that in order to convict the defendant on Count Eleven, the murder count of the indictment, they should find

that [defendant] walked into the liquor store at Atlantic Avenue. That he had the gun in his hand. That he put it to Compton and that he purposely or knowingly pulled the trigger and killed him and that's what it takes for you to come back with guilty on that. So Count Eleven, the State must prove to you that Mr. Long walked into the liquor store where Compton was the clerk, pulled the trigger on the gun and killed him. Purposely or knowingly.

The court did not charge aggravated manslaughter or reckless manslaughter. The court charged felony murder with respect to Count Ten of the indictment. Not having the benefit of the Gerald decision, the trial court gave no instruction with regard to SBI murder. If the defendant is not guilty of capital murder, but is guilty of either SBI murder or felony murder, he is subject to the same punishment of life with a minimum of thirty years without possibility of parole. N.J.S.A. 2C:11-3.

In response to a jury request, the court recharged Count Eleven:

Count Eleven charges capital murder. Criminal homicide constitutes capital murder when the actor purposely or knowingly causes, by his own conduct, that is, by his own hand, the death of another. If that's not satisfactory, then you'll write me another note.

The murder count of the indictment was in the short form authorized by Rule 3:7-3(b), and charged the defendant with the language of the statute. That Rule requires that a murder indictment merely

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.

The murder count of the superseding indictment charged that defendant

did purposely or knowingly cause the death of or serious bodily injury resulting in the death of Albert Compton in that he committed the homicidal act by his own conduct, contrary to N.J.S. 2C:11-3a(1) or 2C:11-3a(2), and against the peace of this State, the government and dignity of the same.

At the time of this trial, the Judges Bench Manual for Capital Cases did not, as it now does, require a jury to return a special verdict on whether the defendant knowingly or purposely caused the death of the victim.

Neither the indictment nor the verdict sheet distinguished between the two forms of murder. The trial court decided to submit a "very simple verdict sheet" to the jury, together with the indictment. The verdict sheet was in the form of checkmarks next to the counts in the indictment. When defense counsel suggested that the court should explain in its charge the significance of Count Eleven, the court agreed to tell the jury that "Count Eleven is the count that will decide death-eligibility." In his summation, the prosecutor forecast the Gerald issue by telling the jury that it would be charged with respect to SBI murder, but suggested that it need pay no attention to it because, in his view, this was a case of intentional murder. Nevertheless, the court interrupted the prosecutor and counselled

him that it would charge the jury with respect to the law. As noted, the prevailing practice at this time did not distinguish between the two forms of murder as determining death eligibility.

Hence, the court did not explain to the jury that the indictment embraced two forms of murder, one capital and the other non-capital. We have uniformly held that at the core of the guarantee of a fair trial in a criminal case is the judicial obligation to insure that the jury's impartial deliberations are based solely on the evidence and in accordance with proper instructions. See State v. Simon, 79 N.J. 191, 398 A.2d 861 (1979). The instructions did not fully define the offense charged in the indictment as a murder charge is now understood under Gerald. Defense counsel argues that a court may not "truncate" the definition of the murder statute and thus deny a jury the mechanism to decide which of the two forms of murder charged has been proven. In that respect, his claim is similar to that of a request for a lesser-included-offense charge. We have regularly held that a defendant is entitled to such a charge if there is any evidence "that would have afforded the jury a rational basis" for convicting the defendant of the lesser offense. State v. Moore, 113 N.J. 239, 290, 550 A.2d 117 (1988).

In this case, there was a slim but rational basis for such a verdict. There was no direct evidence of how the killing occurred. Although Pettigrew said that defendant had shot Compton "because he didn't want to leave [a] witness behind," he also said that defendant had reacted to the victim's reaching down, which defendant thought might be for a gun rather than a bag. The single bullet entered Compton's chest and pierced his liver and pancreas before lodging near his spinal cord. Compton died an hour later, and was still alive when the robber left the store. The State emphasizes that the bullet was the deadly hollow-nosed type prohibited in New Jersey, and that the gunman shot at close range. Defense counsel points to the fact that had the liquor-store perpetrator wanted to be sure to silence his victim, he could have fired more bullets to be sure

that the victim died. Although these defense theories may not persuade a jury, they are not beyond the realm of the possible. This Court stated in State v. Ramseur that a trial court should charge the jury regarding "all of the possible offenses that might reasonably be found from such facts." 106 N.J. 123, 271 n. 62, 524 A.2d 188 (1987) (quoting State v. Choice, 98 N.J. 295, 299, 486 A.2d 833 (1985)).

In State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), the Court affirmed a conviction of capital murder notwithstanding the absence of a Gerald charge because the Court was convinced beyond a reasonable doubt that the error was harmless. In that case the defendant, once a trained soldier, had mutilated the victim with a number of blows using a combat knife. His defense was not that he did not intend to kill his former lover but rather that his reactions were the instantaneous product of rage.

In State v. Gerald, supra, 113 N.J. 40, 549 A.2d 792, the defendant was one of several perpetrators of a stomping-type murder of an elderly victim. There we said that we were

unable to discern from the record whether Gerald was convicted of purposely or knowingly causing death, or purposely or knowingly causing serious bodily injury resulting in death. Count Thirteen of the indictment charges simply that Gerald "did purposely or knowingly cause the death of, or serious bodily injury resulting in the death of [the victim] * * *," and the jury, following a charge that did not ask it to draw the distinctions or apply the principles that are enunciated in this opinion, convicted Gerald on the thirteenth count without specifying for which of the four distinguishable offenses he was convicted. [The Court refers to four distinguishable offenses because two states of mind, knowledge or purpose, may apply to capital murder and SBI murder.] From our reading of the record we are satisfied that the jury rationally could have convicted Gerald, not only of purposely or knowingly causing death, but also -- and equally rationally -- of purposely or knowingly causing serious bodily injury resulting in death. If the latter, defendant would not be death-eligible. Without a determination of the basis for the jury's verdict, we cannot sustain the imposition of the death penalty * * *. [ Id. at 91-92, 549 A.2d 792.]

The question then is what a reading of the record establishes. Not every crime with a gun involves an intent to kill. This case falls on the spectrum somewhere among State v. Rose, 120 N.J. 61, 576 A.2d 235 (1990) (firing shotgun

at close range into victim's stomach held to involve only intent to kill); State v. Coyle, 119 N.J. 194, 574 A.2d 951 (1990) (requiring Gerald charge when defendant professed to have intended only to injure despite having shot victim at close range); and State v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990) (also decided today) (perpetrator of tavern holdup entitled to Gerald charge when he asserts that he shot only to injure proprietor). An admittedly thin line separates these cases as the differing opinions in each case demonstrate, but we are convinced that this case falls within the band of cases that requires a Gerald charge. Since the defendant denies guilt, he does not, like Pennington or Coyle, say that he shot without an intent to kill, but there was only a single shot that went under the rib cage and pierced the liver and pancreas. There was surely lethal force here in the use of a firearm, but there was not such overwhelming lethal force that we are convinced beyond a reasonable doubt that the error in the charge was harmless. As in Gerald, Coyle and Pennington, from our reading of the record we are satisfied that the jury rationally could have convicted defendant of knowingly causing serious bodily injury that resulted in Compton's death. Since the murder verdict could rationally have embraced capital or non-capital murder, we cannot sustain the death penalty. For the reasons stated in State v. Gerald, supra, 113 N.J. at 92, 549 A.2d 792, if a sentence of death is to be imposed, the guilt phase of the capital murder charge must be retried from the beginning. Because the robbery that establishes the single aggravating factor charged (murder in the course of a robbery) is inextricably bound to the murder count, that robbery count would have to be established in the murder proceeding. See discussion in Part V, infra, 119 N.J. at 504-505, 575 A.2d at 467-468.

In addition, although defendant's defense was inconsistent with any theory of accomplice liability, counsel could have argued to the jury that the State's evidence of the other accomplice's role might have created a doubt, not that defendant was there, but that he had been the shooter, thus entitling

him to an accomplice charge. See State v. Moore, supra, 113 N.J. 239, 550 A.2d 117. Recall that Gracco described the shooter as wearing a long coat. We recognize the public impatience with capital-punishment jurisprudence but we cannot conscientiously or constitutionally deny this defendant the right to be tried in accordance with correct principles of law. We have repeatedly stated that we are convinced that the Legislature wished the law to apply equally to all capital defendants. State v. Jackson, 118 N.J. 484, 492, 572 A.2d 607 (1990) (citing State v. Biegenwald, 106 N.J. 13, 66-67, 524 A.2d 130 (1987)).


Because our decision on the Gerald issue renders moot many of the other issues raised in defendant's appeal, we shall not address them in detail except to the extent that they may recur in a new capital trial or affect the validity of the verdicts that remain.


Were the four new counts added to the superseding indictment the product of prosecutorial vindictiveness requiring the dismissal of those counts?

Under Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), a reindictment following certain judicial action that subjects defendant to greater punishment than did a prior indictment is presumptive evidence of retaliation for the exercise of constitutional rights. Here, as a result of defendant's successful challenge to the county's jury-selection process, the prosecutor required resubmission of all death-penalty cases for superseding indictments. We do not sense any qualitative difference between the original indictment and the subsequent indictment. Both indictments charge defendant with capital murder. Defendant's superseding indictment added four charges to the original nine. The difference in the second indictment is more in form than substance.

None of the four new charges could result in more severe punishment than those in the original indictment. The added armed-robbery count was a lesser-included offense of the original felony-murder charge; both merged into the murder conviction. The added attempted-murder count was of the same degree as the original aggravated-assault charge, and in fact merged into the aggravated-assault conviction. The two added weapons possession counts, both fourth-degree crimes, subjected defendant to less severe punishment than the original third-degree weapons offenses. In all, the added counts did not "subject[ ] defendant to a significantly increased potential period of incarceration." Id. at 28, 94 S. Ct. at 2102, 40 L. Ed. 2d at 634-35.

In Blackledge v. Perry the United States Supreme Court discussed North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), in which it had held that imposition of a harsher sentence following a successful appeal and reconviction violates due process unless special findings of justification overcome a presumption of vindictiveness. The Blackledge Court emphasized that its presumption required no evidence of actual vindictiveness on the part of the prosecutor. The rule's purpose was to avoid the potential for such vindictiveness and thus avoid chilling a defendant's exercise of constitutional rights. 417 U.S. at 28, 94 S. Ct. at 2102, 40 L. Ed. 2d at 634. However, "the Court has been chary about extending the Pearce presumption of vindictiveness when the likelihood of vindictiveness is not as pronounced as in Pearce and Blackledge," inasmuch as its operation may effectively bar legitimate criminal prosecution. Wasman v. United States, 468 U.S. 559, 566, 104 S. Ct. 3217, 3221, 82 L. Ed. 2d 424, 432 (1984). The Supreme Court has declined to apply the presumption when there is little likelihood of prosecutorial vindictiveness.

In United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982), the Supreme Court held that the presumption was not warranted because there was no reasonable likelihood of vindictiveness. There the defendant at first initiated

plea negotiations with the prosecutor on several misdemeanor and petty offense charges. When defendant requested a jury trial instead of pleading, the prosecutor obtained a four-count indictment, including a felony count. Id. at 371, 102 S. Ct. at 2487, 73 L. Ed. 2d at 79. The Court stated that "mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule." Id. at 384, 102 S. Ct. at 2494, 73 L. Ed. 2d at 87. The facts did not establish a realistic likelihood that the prosecutor would respond to defendant's pretrial demand "by bringing charges not in the public interest." Ibid., at 384, 102 S. Ct. at 2494, 73 L. Ed. 2d at 87. Also very important was the absence of facts invoking a policy central to both Pearce and Blackledge -- disfavor of retrial of a decided question. 457 U.S. at 383, 102 S. Ct. at 2493, 73 L. Ed. 2d at 87.

Similarly here, where the prosecutor submitted before trial a superseding indictment that did not significantly increase the potential punishment, we decline to apply a presumption of prosecutorial vindictiveness. Defendant has submitted no evidence of actual vindictiveness. The trial court accepted the prosecutor's explanation that the additional counts were initially omitted inadvertently.


Were the grand and petit juries that indicted and tried the defendant drawn from lists that were unconstitutionally under-representative of blacks or otherwise in violation of jury selection statutes?

Defendant had mounted an earlier successful challenge to the method by which juries were selected in Atlantic County. See State v. Long, 204 N.J. Super. 469, 499 A.2d 264 (Law Div.1985). In State v. Gerald, supra, 113 N.J. at 126-33, 549 A.2d 792, we considered this issue and concluded that the error, if any, was not of constitutional dimension. There we also concluded that the recommended revision in procedures proposed by the Law Division in this case would assure fuller achievement of statutory and constitutional requirements for jury selection.

This appeal presents a renewed challenge to the Atlantic County jury selection process. Defendant produced evidence not of actual underrepresentation of minorities but of continued systemic problems. He challenged two aspects of the system: (1) the elimination of eligible persons by failure to use motor-vehicle lists in a substantial portion of the county, and (2) failure to eliminate a substantial number of duplicates on the merged source list. Specifically, the jury selectors had determined not to include certain zip codes that overlapped Atlantic and other counties, and had failed to weed out duplicates, e.g., John M. Smith of Ten Baltic Avenue, Egg Harbor City, and John Smith of Twelve Baltic Avenue, Egg Harbor City.

The factual findings of the trial court more than adequately dispose of the issues. For example, on the issue of omitted drivers, one omitted zip code contained 292 drivers from Atlantic County and 31,940 from Cumberland County. More important, there was no showing that the 292 might not have already been on the "jury wheel" as registered voters of Atlantic County.

On the question of duplication, an expert witness for defendant came up with various percentages of duplication, ranging up to eighteen percent, but he based his estimates on statistical probabilities, not actual results. For example, one field survey showed that only thirteen of thirty-three possible duplicates were in fact duplicates. Moreover, the trial court found that some of the expert's data were of questionable soundness.

In short, we agree with the analysis of the Atlantic County assignment judge. That court accepted a possible duplication rate of 8.5% and an omission of less than two percent of the "jury wheel" due to the zip-code overlaps, but reasoned that there was no clear evidence of violation of statutory or constitutional guidelines involving omissions that "substantially undermine[d] the randomness and objectivity of the selection mechanism or cause[d] harm to the defendant." State v. Ramseur, supra, 106 N.J. at 232, 524 A.2d 188.

It used that same basic reasoning to conclude that the systemic omissions did not violate statutory guidelines:

[T]he court has considered the relatively limited nature of the statistical deviations, the need to balance the risk of unnecessary duplication against the risk of unwarranted removal of qualified jurors, the lack of specific statutory administrative procedures for how to compile the "jury wheel," the relatively recent identification of problems with respect to eliminating duplication and fully including all names from the DMV lists, along with the developing state of jury management. Placed in this context, defendants have failed to demonstrate that the inadequacies here substantially undermined the randomness and objectivity of the jury selection mechanism.

Here, as in State v. Gerald, supra, 113 N.J. 40, 549 A.2d 792, there was no evidence that the grand- and petit-jury panels as composed were not representative of the community, nor was there any suggestion that the independence of the grand or petit jury was compromised. The methods used reflected a commitment to improve the juror-selection process rather than an attempt to undermine or to inject individous discrimination into randomness. The goal was an objectively-random list that reached substantially all sectors of the juror pool. The deficiencies were technical, not substantial.


Was the 971-day delay from the date of arrest to trial a denial of defendant's rights to speedy trial under state and federal constitutions?

Defendant argues that the 971 days that passed from the day of his arrest to the day trial commenced violated his constitutional right to a speedy trial. If the State were entirely or in large part responsible for the delay, such a time delay would violate defendant's right to a speedy trial. In this case, however, defendant filed numerous pretrial motions that accounted for most of the delay between the date of his arrest and the date of trial.

The sixth amendment protects a defendant's right to a speedy trial after arrest or indictment. United States v. MacDonald, 456 U.S. 1, 7, 102 S. Ct. 1497, 1501, 71 L. Ed. 2d 696, 703 (1982); State v. Szima, 70 N.J. 196, 199-200, 358 A.2d 773, cert.

denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976). In addition to protecting defendants against prosecutorial delay, see Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 485, 1 L. Ed. 2d 393, 399 (1957), the speedy-trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial. As a practical measure, that protection benefits both defendants and society. The United States Supreme Court said in Barker v. Wingo, 407 U.S. 514, 519-20, 92 S. Ct. 2182, 2186-87, 33 L. Ed. 2d 101, 110-11 (1972):

In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes.

[Undue delay] contributes to the overcrowding and generally deplorable state of [local prisons]. Lengthy exposure to these conditions "has a destructive effect on human character and makes the rehabilitation of the individual offender much more difficult." (footnotes omitted)

In Barker v. Wingo, the Court formulated a four-part test to analyze a defendant's sixth-amendment speedy trial claim. The enumerated factors are: (1) the length of the delay, (2) the reasons for the delay, (3) whether and how defendant asserted his speedy trial right, and (4) the amount of prejudice to defendant caused by the delay. Id. at 530, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117; State v. Gallegan, 117 N.J. 345, 355, 567 A.2d 204 (1989); State v. Szima, supra, 70 N.J. at 201, 358 A.2d 773.

This case primarily involves the second Barker factor, the reasons for the delay. See Appendix for a time line of the relevant events that caused the delay in the commencement of the trial. The record shows that many of the pretrial delays were attributable to defendant's motions and adjournments. We have held that "[a]ny delay that defendant caused or requested would not weigh in favor of finding a speedy trial violation." Gallegan, supra, 117 N.J. at 355, 567 A.2d 204

(citing United States v. Loud Hawk, 474 U.S. 302, 316, 106 S. Ct. 648, 656, 88 L. Ed. 2d 640, 655 (1986); Barker v. Wingo, supra, 407 U.S. at 529, 92 S. Ct. at 2191, 33 L. Ed. 2d at 116); see also United States v. Jones, 524 F.2d 834, 850 (D.C.Cir.1975) ("A defendant should not be able to take advantage of a delay substantially attributable to his own trial motions when the court acts upon them within a reasonable period of time."). Defendant's successful challenge of the Atlantic County jury-selection process caused six months of the delay. Other reasons for the delay involved the substitution of defense counsel due to Pettigrew's testimony and the reindictment of defendant. In sum, although a substantial amount of time lapsed between defendant's arrest and the beginning of the trial, there is no indication that the prosecution intentionally delayed the proceedings to gain an unfair, tactical advantage. See Barker v. Wingo, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117. Accordingly, we find that the delay here did not constitute a violation of defendant's right to a speedy trial.


Did the State violate the Interstate Agreement on Detainers Act by not bringing the defendant to trial within 180 days of his return to New Jersey?

As noted, defendant surrendered to authorities in Philadelphia on January 7, 1983, to face charges of criminal conspiracy and robbery stemming from a March 1982 purse-snatching incident. On January 10, New Jersey authorities issued a no-bail detainer against defendant, and on February 8 filed an extradition request for defendant.

On June 28, defendant filed a rendition request with New Jersey authorities for his return to Atlantic County to face the instant charges pursuant to the Interstate Agreement on Detainers Act (I.A.D.), N.J.S.A. 2A:159A-1 to -15. On August 17, defendant pled guilty to the Pennsylvania charges and was sentenced to time served and probation. Seven days later he was extradited to New Jersey, and on August 26 defendant was indicted. Defendant's trial commenced in September 1985.

Defendant now argues that the State failed to comply with Article III of the I.A.D., which states in relevant part that a defendant

shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint * * *. [ N.J.S.A. 2A:159A-3 (emphasis added).]

The I.A.D. is an interstate compact among forty-eight states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States. Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 3403, 87 L. Ed. 2d 516, 520 (1985). Its purpose is to "minimize uncertainties resulting from outstanding charges against prisoners, detainers based on such charges, and difficulties in securing speedy trial of prisoners who are incarcerated in other jurisdictions, all of which produce uncertainties which obstruct programs of prisoner treatment and rehabilitation." Annotation, "Interstate Agreement on Detainers Act," 98 A.L.R. 3d 160, 167 (1980). To achieve this ...

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