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State v. McDougald

Decided: July 12, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY TYRONE MCDOUGALD, DEFENDANT-APPELLANT



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

For affirmance, vacation and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Garibaldi, J. Justice Handler has filed a separate opinion concurring in part and dissenting in part.

Garibaldi

[120 NJ Page 528] Defendant, Anthony McDougald, was convicted by a jury of the brutal murders of Walter Bass and his wife, Maria Bass, and sentenced to death. He appeals directly to this Court as of right. R. 2:2-1(a)(3). We affirm defendant's convictions for

murder. We set aside the death penalty, however, based on an erroneous charge regarding N.J.S.A. 2C:11-3c(4)(c), and remand the matter to the trial court for a new sentencing proceeding.

I. FACTS

Anthony McDougald faced trial, pursuant to a thirteen-count indictment, for the murders of Walter Bass and Maria Bass, and related crimes. The jury found McDougald guilty on all counts, and sentenced him to death. McDougald does not dispute his participation in the murders. Following is an account of the essentially undisputed facts surrounding this case.

A. Events Preceding the Murders

Walter and Maria Bass resided in Newark with Maria's natural daughter and Walter's stepdaughter, Antoinette James. The family first met and befriended Anthony McDougald sometime between 1982 and 1983 at the home of their then-down-stairs neighbor and mutual friend, Arlene Euggey. The family continued its friendly relationship with McDougald even after it moved to 14 Bedford Street in Newark in the early months of 1984. Antoinette became romantically involved with McDougald shortly thereafter. Antoinette was thirteen years of age, and McDougald was twenty-seven. They began having sexual relations in February of 1984.

During this time, McDougald was living in an apartment at 69 Somerset Street in Newark with Bernice Simmons. He had married Bernice in January of 1983, apparently without first having divorced his prior wife. In addition, McDougald was also romantically involved with a woman named Marilyn Howard, whom he also had met through Arlene Euggey. During the early months of 1984, defendant was often away from home on weekends. He explained to Bernice that he was drinking with the Basses during these absences.

In April of 1984, Antoinette James informed her mother and McDougald that she believed she was pregnant with McDougald's child. When a subsequent pregnancy test proved negative,

Antoinette was too embarrassed to admit her mistake. Instead, she told McDougald she had had an abortion. She never gave her parents any explanation. Presumably the Basses continued to believe that until the date of their deaths she was pregnant.

The relationship between defendant and the Basses turned hostile once they discovered that McDougald was having sexual relations with their daughter. Mrs. Bass forbade her daughter from seeing McDougald. Nevertheless, Antoinette defied her mother and continued her sexual relationship with McDougald. Maria Bass then apparently threatened McDougald with filing statutory-rape charges against him. He responded by telling Antoinette he would "get" her parents "one way or the other."

Defendant indicated his concern regarding the possibility of the Basses filing rape charges against him to two persons during that spring and early summer. In May of 1984, he told Bernice Simmons that Antoinette was pregnant with his baby and that "the Basses had threatened to press charges against him for statutory rape." He also told Marilyn Howard, sometime during June or July, that Maria Bass had pressed charges against him for having engaged in sexual relations with her daughter.

In May Bernice Simmons gave birth prematurely to the couple's child, a boy. Apparently McDougald was very attentive to the child. He visited the hospital frequently, purchased supplies for the baby, and acted as a reliable phone contact for the hospital.

There were several altercations between defendant and the Basses during that late spring and early summer. On two such occasions Maria Bass called the police. On the evening of June 10th, defendant went to the Basses' home to see Antoinette. When they refused to allow him in, he kicked in the front door. Maria Bass called the police, and Officer Henry Moore responded. By this time defendant had left, but the officer took a report on the incident from Maria Bass.

On the evening of June 17, 1984, Maria Bass granted Antoinette permission to go out to the movies with McDougald, instructing her to be home by 10:30 p.m. After the movie, McDougald and Antoinette engaged in sexual relations. Antoinette did not return home until 2:30 a.m. After he took Antoinette home, defendant heard Mrs. Bass, from outside the apartment, scold and slap Antoinette. He again kicked in the front door. On this occasion he pushed Maria, hit Walter, and took Antoinette to the home of her natural father. Again Maria called the police, and this time Officer Ralph Boswell responded and took a report.

After this last incident, defendant arrived at the home he shared with Bernice in the early morning hours of June 18th. Later that morning, he explained to Bernice that he had had a fight with the Basses. He expressed anxiety about their pressing rape and burglary charges against him. He told her he believed that the police were looking for him in relation to the incident.

In July, McDougald's baby was discharged from the hospital. Bernice took him to South Carolina. She told McDougald that she was only visiting relatives. In reality, Bernice had moved to South Carolina with the intention of remaining there permanently, thus severing her relationship to McDougald.

B. The Murders

McDougald was the source for many of the details surrounding the crimes. His statements and admissions were virtually uncontested at trial. The series of events that culminated in the murders began on the evening of August 18th sometime before 11:30 o'clock. McDougald started a fire on his bed in his apartment. He purportedly wanted to obliterate the bad memories he associated with the premises. McDougald was distraught over his failed marriage to Bernice. He enlisted Michelene ("Kisha") Williams, a thirteen-year-old girl, with whom he apparently was romantically involved, to help burn the bed. He

then called his mother at her residence in the Newark YMCA and, along with Kisha, told her of having set the bed on fire.

Later, at approximately 2:00 o'clock on the morning of August 19th, defendant and Kisha Williams arrived at the home of the Basses. McDougald, by his own admission, was armed with a knife and may also have been carrying a baseball bat. Although McDougald claimed to have found the baseball bat in the home, Antoinette testified that the family did not possess such a bat. McDougald kicked open the front door and entered the bedroom where the couple was sleeping with Arlene Euggy's two-year-old son whom they were watching.

Defendant awakened Walter Bass and ordered him to come into the other room. Walter requested time to put on his pants, but defendant refused to allow him to do so. Defendant then asked where Antoinette was, and Walter responded truthfully that she was staying at a cousin's home that night. The three of them then proceeded into Antoinette's bedroom, where Mr. McDougald repeatedly asked "why was they trying to hurt [him], why?", saying "I never did anything to hurt you" and "I only tried to help you." Walter Bass responded "I'm sorry," at which point, defendant described the incident as follows:

I then cut him across his throat with a knife and he told me: "Tony, don't." Then I stabbed him in the chest. I was holding his neck with my hand. Then I think I stabbed him again two times. He fell on the floor. I told Kisha to watch him.

Defendant proceeded into the bedroom where Maria Bass and the infant were sleeping. Kisha called him back, however, because Walter had begun crawling from the back bedroom toward the kitchen. This is when Mr. McDougald claims to have found a bat in the apartment, which he used to "hit Walter Bass on the head * * *. He was on his knees and he fell back to the floor." Returning to Maria's room, defendant heard Walter moaning, and heard Kisha saying to Mr. Bass, "What did you do to Tony?" McDougald then heard Kisha hit Walter three more times with the bat.

Kisha then went into the room where defendant was standing over the sleeping Maria and the baby. McDougald asked her if Walter was dead, and she answered affirmatively. McDougald claims that Kisha then stated she "wanted to help with Maria." McDougald sent Kisha back to get the bat. He asked her if she was sure she wanted to participate, and then moved the baby away from the bed and instructed Kisha to hit Maria with the bat. Maria moved to get up. Defendant described his subsequent actions:

I went and got a cinderblock that was in the house and I hit her in the head with it. Maria moved again. Then I hit her with the bat once. Then I took the knife out of Kisha's hand and cut Maria's throat.

Defendant then sliced the bra Maria Bass was wearing in half with the knife, pulled her underpants down onto one ankle, and inserted the bat approximately three inches into her vagina, saying, "That's for having Antoinette." McDougald and Kisha then left the Basses' apartment.

McDougald called his mother again. This time he informed her that he had killed two persons. He also asked her if he could borrow forty dollars to get a place to stay. Ms. McDougald told him to come over.

Kisha Williams accompanied McDougald to the YMCA. Ms. McDougald came out, and the group sat on the stoop of a nearby church discussing the night's events. McDougald confirmed in his statement to police that he told his mother at that time that he wanted to kill three other persons as well. They were Antoinette James ("because it was her fault my wife took my son"), and Jean Simmons and Charlie Simmons, Bernice's sister and brother ("because they talked my wife into leaving me and taking my son."). As he was leaving the YMCA, defendant encountered Marilyn Washington, a neighbor and friend of his mother. He told her that he had killed two people and asked her to check on his mother because she was upset.

After leaving his mother, defendant traveled to Washington Park, close to the YMCA. At 3:26 o'clock that morning defendant made a phone call from the park. AT & T operator Betty

Upchurch received the call from a male, later confirmed to have been McDougald, who stated: "Operator, you had better get someone up there 14 Bedford Street, there are two people dead there. I just killed them and --." Ms. Upchurch interrupted, said "hold on," connected McDougald with the Newark police, and hung up. When Communications Clerk answered and announced to the caller that he was now speaking to the Newark Police, McDougald suggested that someone go to 14 Bedford Street, where there were two dead bodies and a healthy baby. He told him that he had killed the two people, and that their identities were Walter and Maria Bass. McDougald then hung up.

Defendant claims to have thrown away the knife in a vacant lot sometime later that morning and to have left his bloodied shirt at a friend's home. Police searched the lot and attempted to locate the shirt, but neither item was ever recovered.

C. The Investigation

Patrolmen Marvel and his partner went to the Basses' apartment in response to McDougald's telephone call. When the officers arrived, they heard a baby crying, noticed that the door was ajar, entered the apartment, and discovered the bodies of Walter and Maria Bass. Subsequently Detectives Conti and Eutsey from the Homicide Unit arrived. With the assistance of Detective Smith from the State Police, the officers secured the premises, conducted a search, collected evidence, and photographed the apartment and the bodies. Later that morning, Detective Eutsey played the recorded phone call for a neighbor of the Basses also acquainted with defendant, and Antoinette James. Both identified the voice as that of Anthony McDougald.

Detective Eutsey then went to the YMCA during the afternoon of the 19th to speak to Shirley McDougald. She accompanied him to police headquarters and gave a statement regarding the incident implicating her son. Later that evening Detective Eutsey went to 69 Somerset Street looking for defendant and

discovered that there had been a recent fire at the premises. Based on information that he subsequently received from an informant, he arrested Kisha Williams on August 20th.

Detective Eutsey returned to police headquarters with Kisha Williams. Shortly thereafter, he received a call from Shirley McDougald, reporting that her son would turn himself in to police. A short time later, defendant called. McDougald inquired whether Kisha was in custody and stated that he would surrender at police headquarters. McDougald and a young woman by the name of Ethel Lewis met Detective Eutsey in the lobby of police headquarters a short time later. He was then advised of his Miranda rights. After his mother arrived and he had spoken with her, McDougald expressed some willingness to make a statement. Once more, McDougald was advised of his rights. He gave a statement concerning the events of August 19th, which detailed Kisha's and his involvement in the crimes. The red rayon pants he was wearing at the time of the interview were the same he had worn the previous night, and were confiscated as evidence.

D. Procedural History

1. Pretrial Proceedings

On September 19, 1984, the State filed a thirteen-count indictment charging defendant with: the purposeful or knowing murders of Walter Bass and Maria Bass by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) or (2) [counts I and II]; felony murder of Walter Bass and Maria Bass contrary to N.J.S.A. 2C:11-3a [counts III and IV]; two counts of second degree burglary, committed on June 18, 1984, and August 19, 1984, contrary to N.J.S.A. 2C:18-2 [counts V and XIII]; unlawful possession of weapons and possession of weapons for an unlawful purpose (a knife and a bludgeon) contrary to N.J.S.A. 2C:39-5d and 2C:39-4d [counts VI and VII]; third degree hindering prosecution or apprehension contrary to N.J.S.A. 2C:29-3b(2) or (3) [count VIII]; second degree attempted murder of Antoinette James, contrary to N.J.S.A. 2C:5-1 and N.J.S.A.

2C:11-3 [count IX]; second degree aggravated arson contrary to N.J.S.A. 2C:17-1a(1) or (2) [count X]; second degree sexual assault upon Antoinette James, contrary to N.J.S.A. 2C:14-2c(5) [count XI]; and third degree burglary, on June 10, 1984, contrary to N.J.S.A. 2C:18-2 [count XII].

The State served notice of its intent to prove three aggravating factors: N.J.S.A. 2C:11-3c(4)(c), that the murders of Walter Bass and Maria Bass "involved torture, depravity of mind, or an aggravated battery to the victim[s]"; N.J.S.A. 2C:11-3c(4)(f), that the murders were committed to escape detection or prosecution for other offenses committed by defendant; and N.J.S.A. 2C:11-3c(4)(g), that the murders were committed in the course of a felony.

Defendant made numerous pretrial motions. In summary, those motions and their dispositions were as follows: to adjourn the case pending the new Biegenwald (denied); to strike factor c(4)(c) as unconstitutionally vague (denied); challenging the composition of the Grand and Petit Jury list in Essex County (consent order filed June 28, 1985, joining and incorporating the Ramseur record); motion to bar death qualification of the jury (denied); motion to dismiss the indictment based on the unconstitutionality of the Capital Punishment Act (denied); motion to strike aggravating factors c(4)(f) and c(4)(g) as cumulative (consent to adjournment pending factual development); and finally a motion to strike c(4)(c) as inapplicable to the developing facts of this case, particularly regarding the killing of Maria Bass (denied without prejudice). Additionally, it was agreed that the court would conduct the initial voir dire with each side then asking supplemental questions, and that the parties would submit proposed questions to the court.

The parties agreed to use substantially the same voir dire procedure and questions that the trial court had employed in State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988). The court would request that the venire members fill out a written questionnaire. The court would first question the venire members,

and the attorneys would then question them. The defense proposed a list of questions for the court to ask and submitted a list of areas they sought to cover themselves through direct questioning. One such area was potential racial bias.

After the voir dire questioning, the trial court convened the death-qualified jurors, and the attorneys exercised peremptory challenges until a final jury was chosen. The State and the defense both exhausted their allotments of peremptory challenges. At the conclusion of that process, the defense moved for a mistrial, asserting that although somewhere between five and eight African-American persons remained on the jury, the prosecutor had exercised ten challenges to excuse African-American jurors and one to excuse a Latino juror. The defense maintained it had therefore made a prima facie showing that the prosecutor had employed discriminatory challenges systematically to exclude members of an identifiable group.

The State responded that it had challenged only those African-Americans who had expressed a reluctance during voir dire to enforce the death penalty. The court considered that a legitimate reason for the challenges. The court also rejected the argument that systematically excluding persons who possess some reservations about the death penalty was also invalid because it contravened the defendant's right to a jury comprised of a fair cross section of the community.

A Miranda hearing to determine the admissibility of defendant's statement of August 20, 1984, resulted in an unchallenged finding of admissibility.

Defendant also moved to preclude the State from informing the jury of the age of McDougald's accomplice, Kisha Williams, asserting that it was immaterial to the State's case and further that any probative value was "far outweighed" by the prejudice such knowledge would cause defendant. The State responded that the accomplice's age was admissible evidence, as it related to proof that defendant committed knowing and purposeful acts by his own conduct, and that it was McDougald who enlisted

this young woman to accompany him. The court agreed that it was a relevant fact, and further held that its probative value was not outweighed by the risk of undue prejudice. An interlocutory appeal on this issue was unsuccessful.

2. Trial -- Guilt Phase

Given the admissibility of defendant's confession, the State's proofs during the guilt-phase of the trial were essentially directed at corroborating the facts to which defendant himself had confessed. Also, the State's evidence addressed defendant's fear of prosecution for his sexual relationship with the Basses' minor daughter and his forceful entrance into the Basses' home. The State sought to characterize McDougald's apprehension at the possibility of being prosecuted as his motive for the murders of August 19th.

In its opening to the jury, the defense conceded McDougald's guilt of the numerous offenses. The defense stated:

Often . . . I can deny that my client was involved. I can deny that he did essentially what the Prosecutor said he did. But, unfortunately in this case, ladies and gentlemen, unfortunately for the defense and Mr. McDougald we can't deny it in this case because essentially, and I say essentially because perhaps not completely, essentially the facts as presented to you by the Prosecutor are what happened that morning . . . . But, again we urge you to keep an open mind because this case is about more than guilt or innocence. It is about whether or not Mr. McDougald lives or dies.

The defense maintained this tactical posture of admitting McDougald's guilt throughout the guilt phase of the trial. The defense conducted virtually no cross-examination of the State's witnesses and proffered no evidence.

The State presented photographs and witnesses describing the discovery and condition of the decedents at the scene, the evidence found, and the investigation. The officers involved in the case who testified for the State detailed a scene that corroborated Anthony McDougald's account. Officer Marvel, along with his partner first on the scene, testified that they had

arrived at 14 Bedford Street at approximately 3:55 a.m. and found the front door broken open, a male decedent lying on the floor of the kitchen up against a wall, and a female decedent and crying infant in the front bedroom.

Detective Conti described how he and Detective Smith, a crime-scene technician with the State Police, diagramed, searched, and photographed the premises, and collected the evidence. The State presented various crime scene photographs, in conjunction with Detective Conti's testimony. Those photographs showed the victims, the broken lock on the front door, the bedroom, and the kitchen. Detective Conti also identified a baseball bat, bedsheets, brassiere, and cinderblock, as materials found on the scene. He also identified the maroon pants as those taken from defendant on the morning of August 20th.

Detective Eutsey testified to the steps he took in identifying and locating defendant, much of which has been set out above. After authenticating the statement made to him by defendant on August 20th, the Detective read that statement to the jury.

A captain of the Newark Fire Department testified that he responded to a fire at 69 Somerset Street at approximately 11:30 p.m. and extinguished a fire in the bedroom of the first floor apartment. Officers Moore and Boswell told the jury about their response to Maria Bass' calls on June 10th and June 18th, respectively.

Chemists from the State Police Laboratory testified, based on their analysis of the forensic evidence and blood and enzyme comparisons, that the sheet and pillowcase found in the front bedroom showed stains of blood consistent with that of Maria Bass. Also, the cinderblock and bat had traces of human blood, and the maroon pants taken from the defendant had tested positive for human blood consistent with either or both victims. A red rayon fiber recovered from the bedsheet "compared physically and chemically" with the pants defendant was wearing at the time of his arrest.

Dr. Melczer, from the Essex County Medical Examiner's Office, outlined the findings of his autopsy examinations of the victims' bodies. Dr. Melczer explained that both victims had suffered two distinct sorts of injuries; those caused by stabbing and those caused by blunt force. Walter Bass had two fatal stab wounds to the left side of his chest, as well as superficial stab wounds to the abdomen and neck. He also suffered serious head injuries caused by a blunt instrument. His left ear was completely crushed, and his skull was fractured on both sides of his head. The doctor posited that both the stab wounds and blows to the head were capable of causing the victim's death. In Dr. Melczer's opinion Walter Bass had survived for about ten to fifteen minutes. Maria Bass had multiple blunt-force injuries to the head, which crushed her skull and were determined to be the cause of her death. Her left ear was crushed and the skull underneath fractured like an egg shell. Additionally, there was a deep slash to her neck and a baseball bat protruded from her vagina. Dr. Melczer said that Maria Bass lost consciousness within a few minutes but survived for five to ten minutes.

That testimony was supplemented by clinical photographs of the decedents, taken at the police laboratory. The defense strenuously objected to the introduction of those photographs, alleging that they were highly prejudicial, repetitive of the previously-introduced crime-scene pictures, and again unnecessarily enlarged. Although the State was precluded from offering the enlargements of the photographs, most of them nonetheless were ruled admissible.

Antoinette James, Bernice Simmons, and Marilyn Howard, all involved romantically with defendant during the months prior to the crimes, testified for the State. They described McDougald's evolving relationship with the Basses, his belief that the Basses had filed criminal charges against him, and his altercations with them.

Although no objections to the jury charge are recorded, attorneys for defendant had previously argued that the trial court should omit language permitting a guilty verdict to capital murder based on a finding that defendant intended to cause serious bodily injury to his victims. The court denied that request.

The defense also had requested that the trial court reiterate the distinction drawn under the capital statute between murder by "one's own conduct" and as an accomplice, specifically that "something more is required than that the defendant aided and abetted in the murders." To this end, the defense requested a charge that the jury had to find beyond a reasonable doubt that it was the batteries inflicted by Anthony McDougald that had caused the victims' deaths before it could convict him of knowing and purposeful murder by his own conduct. The defense asserted that if it was a combination of several persons' blows or the jury could not ascertain which injuries caused the deaths, McDougald could not be found guilty of these counts.

The trial court held that the causation issue was one of fact for jury resolution. With respect to the related accomplice issue, a verdict sheet was prepared in which a finding of knowing and purposeful murder triggered a choice between two options. The jury could find that either the killings were committed by defendant's own conduct or he was an accomplice in the murders.

The jury returned a verdict of guilty on all counts, except count ten of which defendant was found guilty of the lesser-in-cluded offense of third degree arson. The homicides were found to be committed by defendant's own conduct.

3. Trial Penalty Phase

The State sought to prove three aggravating factors with respect to each killing: c(4)(c), that the murders involved torture, depravity of mind, or an aggravated battery; c(4)(f), that the murders were committed to escape detection or prosecution for other offenses; and c(4)(g), that the murders were committed

in the course of a felony. The State relied on the evidence adduced at the guilt-phase and presented rebuttal evidence.

The defense countered by asserting three mitigating factors equally applicable to each death: c(5)(a), that defendant's conduct was motivated by an extreme emotional disturbance; c(5)(d), that defendant's self-control was diminished by a mental defect; and c(5)(h), any other factor relevant to defendant's character or record or to the circumstances of the offense.

The defense sought to portray Anthony McDougald as a product of a violent and deprived youth whose severe despondency over the loss of his wife and newborn son caused him to lose self-control. As portrayed by the defense through the testimony of persons who knew McDougald, the ultimate acts of violence on August 19th were the product of a deprived background and of recent precipitating events.

Karen Vogel, a social worker in the intensive care nursery at Beth Israel Hospital, testified that after the baby's birth, Anthony McDougald was very concerned and anxious about the condition of his son. McDougald spent a good deal of time at the hospital. He apparently became very attached to the child, who was in a ventilator.

Shirley McDougald also testified about McDougald's attachment to his newborn son. She stated that when her son discovered Bernice Simmons was not going to return with the baby, he became extremely upset. He came to her crying and enlisted her help in trying to coax Bernice back by having her repeatedly telephone South Carolina asking to speak to Bernice. These efforts were unavailing, however. She also told the jury that after Bernice left, her son "just let his self go," was all "wound up" and could not manage to "keep still."

As the weeks went by that July, defendant was presented as becoming increasingly depressed over his separation from Bernice and the baby. Ms. McDougald testified that late in July, defendant appeared at the YMCA and demanded she get Bernice and the baby back, charged that she was responsible for

Bernice leaving, attempted to assault her, and tore up her room. She also testified that a friend called her later and told her that her son was at the friend's home "lying on the floor crying saying he wanted to talk to his mother." She refused to speak with him.

William Campbell, a friend of McDougald, testified that presumably on this same day late in July he observed defendant leaving 20th Street in Newark, apparently the residence of his "ex-wife" Linda Harper, crying and driving his car erratically up and down the street, finally running it head on into a brick wall. He suffered only minor injuries, a "busted" lip, and reportedly then got out of the car and said to Mr. Campbell and his wife, "Damn it, I can't even kill myself."

Debra Ann Jones, an intake coordinator at the substance-abuse program at Mt. Carmel Guild Catholic Community Service Center testified that on July 26, 1984, defendant went there seeking help. He sat with his head between his knees as he told her that he needed help, that he was having a lot of problems, including his wife leaving him, and that he had tried to commit suicide. He said that he did not take drugs, but instead that his problem involved his mental health. Consequently, he was referred to another counselor in the psychiatric unit, but apparently left the facility without seeing anyone else.

On this same day, defendant phoned his mother at her residence at the YMCA on Broad Street in Newark and asked her to meet him outside in nearby Washington Park. She and a friend, Debra Wilder, met Mr. McDougald in the park. Debra Wilder and Ms. McDougald both testified that he told them that he thought he was losing his mind and had sought help at both Mt. Carmel Guild and College Hospital but was turned down. He looked scared and nervous, responded affirmatively to questions about using drugs, and expressed his belief that someone was following him. He accompanied the two women to Ms. McDougald's place of employment.

Fearful that her son might be committed if he continued to seek help at a hospital, Ms. McDougald took him to see a "root doctor" later that day. That person prescribed oils to put in Bernice's clothes to bring her back, candles and pills, and instructed McDougald to repeat the Twenty-Third Psalm in a chant-like manner. McDougald was supposed to follow this regimen for seven days, but returned earlier for further help. Shirley McDougald testified that at that time defendant said he was taking drugs because he was having trouble sleeping, and was upset because "Bernice is gone; Antoinette is gone and my brother is dead. I don't have anything to live for."

Defense witness Donald Winston, a friend of defendant, corroborated McDougald's efforts to be helped by this "doctor." He told the jury that he went to defendant's apartment one night in early August and found the lights out, ten to twelve candles burning, and defendant in the bedroom saying some kind of chant. Mr. Winston also testified that he witnessed defendant sitting on his bed staring aimlessly into the crib beside it. When Mr. Winston inquired about a broken television in the apartment, McDougald told him that he had gotten upset and kicked it in.

After the trips to the root doctor, Ms. McDougald testified that she was not in contact with defendant for several weeks, and next heard from him on in the early evening of August 18th, when he came to the YMCA and borrowed ten dollars from her. Later he called her and told her about the fire he had set. In her statement to Detective Eutsey, she stated that her son explained to her that he was "burning up memories," that "his wife had left him and took his baby with her and Antoinette's mother was trying [to] put him in jail for rape and assault and he was at the bottom of his life -- he was at the bottom, his life was over." Ms. McDougald did not believe her son, so a young woman, presumably Kisha Williams, got on the phone with Mr. McDougald and confirmed the defendant's story adding that she had helped. He also apparently told her during

this conversation that "they found my brother's body at 2:00 or 2:30 in the morning and they will find mine the same time."

Ms. McDougald testified that later, in the early hours of August 19th when Kisha and McDougald came to see her, they both appeared "high" and left her when Kisha whispered to her son that she wanted to "get some stuff to get high with."

Ms. McDougald also testified extensively about defendant's childhood. She was single when defendant was born, and shared a four-room house with her parents and sister in North Carolina. She told the jury of instances during McDougald's infancy when her sister, apparently angry with her, burned and cut the child. In one instance, when the two sisters were having a fight, McDougald's aunt grabbed the child and cut his face with a razor blade, from the mouth to the ear.

Ms. McDougald left Anthony McDougald and his younger brother with her parents for two years while she came to Newark to work as a live-in maid. When the boys were later brought to New Jersey to live with their mother and her boyfriend in a drug-infested area of Newark, they once more were subjected to abuse. Ms. McDougald's boyfriend hit the children "more than . . . most parents beat their kids." The children also had to watch their mother be repeatedly beaten. Ms. McDougald labeled her son a "hyper" child who got into fights. He had once perched on the school roof and threatened to jump off.

Finally, Ms. McDougald told the jury how Anthony McDougald's close relationship with his brother ended abruptly when his brother was thrown off a bridge onto the Garden State Parkway and killed sometime in 1983.

Ms. McDougald testified that her son had never been violent with her, or threatened her except in July of 1984. On cross-examination, the prosecutor asked whether Anthony McDougald had threatened to kill his mother if she did not give him some of the insurance proceeds on his brother's life to buy a car. Ms. McDougald admitted that he wanted some of the money but

denied that he ever threatened her. She also testified on cross that her son told her he killed the Basses because he "wasn't going to jail for no rape because he didn't rape anybody."

The State called four rebuttal witnesses. Marilyn Washington and Detective Eutsey refuted the assertion that defendant was under the influence of alcohol or narcotics on the night of the murders.

Ms. Washington, another resident of the YMCA and friend of Mrs. McDougald, testified that as she was returning home from work sometime after 3:00 a.m., she encountered defendant and a young woman in the hallway of that building. McDougald asked Ms. Washington to check on his mother, explaining that she was upset. He also related, to Miss Washington's disbelief, that he had killed two people that night. The prosecutor implied that Ms. Washington was sensitive to persons who were intoxicated due to her background as a special police officer working security in bars. Then he elicited her opinion that after approximately a five-minute conversation, defendant did not appear to her to be intoxicated in any way.

With respect to the issue of intoxication, Detective Eutsey was recalled to testify that Ms. McDougald never stated during her declaration to the police on August 19th that her son was high when she saw him on the morning of the murders.

The State called Officer Foster to contradict William Campbell's assertions that McDougald's suicide attempt had been severe. Officer Foster had responded to the scene of that car accident on July 29, 1984. Officer Foster testified that the car was found resting against the side of a building. The car had not hit head on but had sideswiped the building. The damage to the car was confined to the left front fender. That testimony was supplemented by photographs of the damaged car.

The State also called Bernice Simmons to rebut the assertion that Anthony McDougald "changed" after she left with the baby. Ms. Simmons testified on direct examination that she left because she "was tired of his manipulations, his lying, his

deceiving and . . . tired of his threats against me and my family." She also stated that she believed her safety and that of the baby were in jeopardy. She said that during the course of their relationship defendant had threatened to harm her on numerous occasions, that he had also threatened her brother and sister, and that he had said to her that he would kill his mother because she would not share the life insurance proceeds paid on his brother's death. Ms. Simmons told the jury she lied about her intention to return because she feared that otherwise he would not let them leave. On cross examination, however, Ms. Simmons confirmed that in a statement given to an investigator from the prosecutor's office previously she had said she left because the defendant was "get[ting] on [her] nerves" and because he was blaming her for Antoinette's pregnancy.

A series of cross and redirect examination ensued, culminating in a mistrial motion and the basis of arguments on appeal. The focus of the questioning turned to the threats made by defendant to Ms. Simmon's brother and sister. On recross, the defense brought out the fact that Ms. Simmons had married defendant after he had threatened to harm these relatives. The prosecutor responded by asking Ms. Simmons why she had married defendant, to which she answered that she was afraid of him and afraid not to marry him, "because he had told me before that he had charges against him for rape when he was in Japan." The defense promptly moved for a mistrial based on the disclosure of that information, which was denied. Counsel then debated when and if the judge should give the jury a cautionary instruction regarding consideration of that material. Over fervent objections that an instruction would merely highlight prejudicial facts, the trial court charged the jury that it could consider the testimony regarding Japan for the limited purpose of assessing Bernice Simmons credibility and the reason she gave for marrying Anthony McDougald.

In summation, the defense asserted that their client was a man suffering from mental defects who had killed in a frenzy and who would be adequately punished by spending the remainder

of his life in Trenton State Prison. The prosecutor responded by asserting that no evidence of mental disease had been presented, that defendant was not sick but merely a criminal. The prosecution stated that sending such a remorseless man to Trenton State Prison would make that facility "a bigger hell." The court overruled defendant's objection that this reference to the prison was an allusion to a nonstatutory aggravating factor.

In charging at the penalty phase, the trial court explained the respective burdens of proof, the need for the jury to find the existence of aggravating factors beyond a reasonable doubt and also to find that those aggravating factors outweighed the mitigating factors beyond a reasonable doubt. It also explained that the aggravating factors had to be found to exist by all jurors, but that they did not have to be unanimous in finding the existence of any mitigating factors. Further, the court charged the jurors that a nonunanimous verdict ...


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