On appeal from the Superior Court, Law Division, Essex County.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Concurring in part; dissenting in part -- Justice Handler. The opinion of the Court was delivered by Garibaldi, J. Handler, J., concurring in part and dissenting in part.
A jury convicted defendant, Roy Savage, of the capital murder of Carolyn Hubbard and sentenced him to death. He appealed as of right. R. 2:2-1(a)(3). We find that defendant was denied effective assistance of counsel, in violation of the federal and state constitutions, and therefore reverse his murder conviction*fn1 and sentence of death. Consequently, we remand the case to the law division for a new trial.
In addition, we consider whether under our state constitution a defendant has a constitutional right to testify at trial and whether a trial court has the corollary duty to advise a defendant of that right. We also address certain collateral issues raised by defendant -- many of which were resolved by our decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), and State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987) -- that may arise in the event of a retrial.
A. The Discovery of the Torso, the Investigation, and the Arrest
On Thursday, September 8, 1983, Margie King Guest, a seventh-floor resident of the Columbus Homes Project in Newark, ("Projects") was leaving her building to meet a girlfriend. On arriving in the lobby, she noticed an "awful" odor, and a man with a large suitcase. The odor was so strong that she covered her mouth and ran to her friend's apartment. A few minutes later, she saw the man she had seen in the lobby with the suitcase leave the building. She noticed that he wore glasses and a muslim cap and that he had a cloth around his arm, using it as a sling. He walked past her, and entered a small blue car driven by another male, accompanied by a female wearing a veil over her face. The car turned around and drove away.
The next night, Friday, September 9, 1983, Aleida Bonilla and Felix Figueroa, residents of the Projects, were in the lobby of their building awaiting the elevator when they detected a foul odor. It forced them outside for air. After they returned to the lobby, the elevator door opened and they saw a man inside with an approximately four-to-five feet wide by three-and-one-half feet high suitcase at his right-hand side. They described the suitcase as blue with a brownish substance underneath. Mr. Figueroa wrapped his scarf around his face and held his breath all the way to the ninth floor to escape the odor apparently emanating from the suitcase. Ms. Bonilla noticed that the man was wearing glasses and had a towel with what appeared to be dry blood wrapped around his hands. Ms. Bonilla and Mr. Figueroa left the elevator on the ninth floor; the man with the suitcase stayed on.
That same night, Douglas Robinson, another tenant of the Projects, saw a strange man standing in his hallway carrying a blue suitcase with red stains underneath. He noticed that the man wore a pair of tinted glasses. Mr. Robinson also noticed a "terrible smell" emanating from the suitcase. When he left his apartment about five minutes later, he saw the strange man standing near the back step close to the garbage dumpster.
The odor pervaded the hallways of the Projects during the week-end and even reached some apartments. On Monday, September 12, 1983, Augustine Arana, a porter at the Projects, was asked to investigate an odor on the twelfth floor. Arana found a large blue suitcase in the hallway, and with the help of another man carried it outside to the dumpster. When the porters threw the suitcase into the dumpster, it opened to reveal the headless torso of a black woman; the hands were missing, and the legs had been severed and were missing from below the mid-thigh. A single finger was later found in the suitcase. Aleida Bonilla, Felix Figueroa, Douglas Robinson and Margie King Guest later identified the man with the suitcase as defendant, Roy Savage.
The investigation triggered by the events at the Projects revealed that Roy Savage's appearance there with the large blue suitcase was but the last of a series of bizarre appearances by him that week in the Newark and New York City metropolitan areas. On Labor Day, Monday, September 5, 1983, Eugene Charles, the Engineer Superintendent at the Pavilion Apartments in Newark, saw a "Muslim woman" and a "man with a suitcase" get into a small car with New York license plates.
Defendant also resided periodically at Apartment 12A, 37 W. 138th Street, in New York City. Several neighbors of the West 138th Street apartment also saw defendant that week. On or about September 9, 1983, Margaret Cooper, who lived next door to Savage on the fourth floor, spotted him standing naked in the street. Ms. Cooper also noticed an unusual smell emanating from the apartment next door that pervaded her apartment as well as the common areas.
A subsequent investigation revealed that Roy Savage had been taken on September 9, 1983, to Harlem Hospital. When hospital security saw him in the lobby of Harlem Hospital dressed in a paper gown, Savage ran out of the hospital lobby in the direction of 138th Street. During the chase, Savage's
gown came off, and he continued running nude through the streets with an IV bottle and tube attached to his arm.
During that week, Emma Hubbard, a neighbor at 37 W. 138th Street, was standing on the stoop in front of the building, when she saw Roy Savage, luggage in hand and fully dressed, leave the building. She, too, noticed an unusual odor emanating from the suitcase as he passed.
Christopher Gadson, the superintendent of the building at 37 W. 138th Street, received complaints from residents regarding a terrible odor. Gadson noticed a strong, foul, odor and saw a trail of fluid leading from the fourth floor, where Savage often stayed with the Muslim women, down the stairs and into the street.
On Saturday, September 10, 1983, New York City Police executed a search warrant at the 37 W. 138th Street apartment. They found the apartment in "disarray," and pervaded by the odor of decaying flesh. There were blood splatterings around the apartment and a pool of blood on the floor of a closet near the kitchen.
One week later, on September 17, 1983, Newark police executed a search warrant at apartment # 305, 351 Broad Street, the apartment occupied by Roy Savage and several Muslim women and children. When police knocked, a woman who identified herself as Cheryl Hubbard opened the door. At that point, according to police, Roy Savage, who was in the apartment when the police arrived, indicated that he knew about the suitcase. The police then read Savage his Miranda rights, and took Savage and Cheryl Hubbard to the police station for questioning.
At the station, Savage gave the police a written statement. He gave his full name as Roy D. Savage but indicated that he also answered to Hashim Abdul Muhammed. He gave his main address as 273 W. 131st Street in New York, but stated that he often stayed at 351 Broad Street in Newark with Carolyn Hubbard, her sister Cheryl Hubbard, and Tammy Cherry, described
by Savage as his "companions" or "associates." All were adherents of the Muslim faith and members of the Muslim Ansaaru sect. Savage lived with his legal wife, Fay Vonder Savage, and his two children at the W. 131st Street address; he also admitted that he had sometimes stayed at 37 W. 138th Street with another Muslim woman, Jackie Cobb.
In his September 17, 1983, statement defendant contended that while waiting for a bus on Thursday, September 8, he was hit from behind and knocked unconscious, and that he awoke the next day in Harlem Hospital. A black girl with long braids came to his bedside, told him to go to the apartment on 138th Street and move the suitcase to New Jersey. She threatened to kill him if he did not comply. He related that she placed a pistol at his head, pulled the trigger on a blank, and told him: "They could have killed you a long time ago, don't think that we are joking now." Savage then described how he immediately ran out of the hospital, dressed only in his hospital gown, chased by security guards until he reached the 138th Street address. After dressing, he went to the 131st Street address, and then returned to 138th Street with Fay Vonder and Carl Gamble to pick up the blue suitcase. Driving in Gamble's grey Toyota, the three took the suitcase to the Projects, and left it on the twelfth floor. Savage related that he did not know the contents of the suitcase at that time, and took it to Newark because he had been instructed to do so by the girl with the gun. He made the statement "because I am trying to protect my people who are in danger (because) the girl with the gun stated that she could have killed me already."
Cheryl Hubbard gave a statement to the police on September 20, 1983. In her statement -- the first of four, including her trial testimony, that Ms. Hubbard was to give -- Ms. Hubbard identified Roy Savage as the father of her two youngest children and as her "mate." According to Cheryl Hubbard, Savage had four other "mates": Carolyn Hubbard, Cheryl's sister; Jackie Cobb; Tammy Cherry; and Fay Vonder Savage. Cheryl Hubbard stated that she had last seen her sister Carolyn
on the morning of September 4, 1983, sweeping the floor in the 351 Broad Street apartment. Cheryl had left to go to the store, and when she returned, Roy sent her to the Lincoln Motel with her two children. According to her statement, Cheryl stayed at the Lincoln Motel until Monday, September 5, when she returned to 351 Broad Street. She admitted that when she returned, there was a foul odor in the apartment. She also recalled seeing Roy and Fay Vonder Savage in the apartment that week, but denied seeing a suitcase.
On September 26, 1983, Cheryl Hubbard gave a second statement. In that statement, she admitted seeing a brown suitcase, leaking a dark brown liquid, in the 351 Broad Street apartment during the week following her return from the Lincoln Motel. That week, she also observed Roy painting over a brown stained spot on the wall of their apartment.
Nearly a year later, on August 23, 1984, after Cheryl Hubbard had been indicted for hindering apprehension and had entered a Pre-Trial Intervention Program, she made her third and most revealing statement. Cheryl stated that when she returned to her apartment at approximately 10:00 p.m. on September 3, 1983, Roy called her into his "private room," which the women were normally restricted from entering. Roy told her to keep the children in that room, and Roy, Cheryl, Carolyn and Jackie entered the living room. Cheryl stated that Roy, Carolyn, and Jackie began freebasing cocaine until the early morning. According to Cheryl, Savage smoked marijuana frequently and freebased cocaine almost every night. Cheryl left the group and went to sleep with the children.
At approximately 8:00 o'clock the next morning, before leaving for the grocery store, Cheryl noticed her sister, Carolyn, sweeping the floor and Jackie Cobb sitting in the living room. She noticed that Jackie Cobb's face was swollen and that she had two black eyes, caused by a severe beating admitted by Savage the previous week. On returning twenty minutes later, Cheryl heard a female, either Carolyn or Jackie, scream "Hashim,
no!" Roy Savage then appeared at the door covered with blood, and when she asked him what had happened, he replied: "They were gonna kill you and they were gonna kill me." Cheryl observed puddles of blood and a knife on the apartment floor and blood smeared on the walls.
Savage sent Cheryl and the children to the Lincoln Motel so that he could clean the apartment. He visited her periodically at the motel over that weekend. At one point, he stated that Jackie and Carolyn "were still nursing on themselves and that they were doing ok." She said that when she returned to the apartment, she said defendant told her: "I don't think Aisha [Jackie] is going to make it, she has head injuries . . . . Amira [Carolyn] might make it, but she might tell on what happened." When Savage asked what he should do with the body, Cheryl suggested he "put it in a box and take it somewhere."
On Wednesday, before Cheryl left for work, she observed Savage carrying a black cloth bag. He did not divulge the contents of the bag but only asked Cheryl if it smelled, and she responded that it did. Savage then discarded the bag in a dumpster in front of an abandoned building on Broad Street.
That following Thursday, Cheryl entered Savage's private room at their 351 Broad Street apartment. She noticed that there were newspapers on the floor, covering a dried-up brownish fluid. The room smelled. Cheryl also noticed that Carolyn's and Jackie's shoes were in the closet.
On Friday afternoon, Roy Savage returned to the apartment with visible head injuries. He asked Cheryl to retrieve a blue suitcase from the twelfth floor of the Projects and to throw it in a dumpster. She refused. The next morning, Cheryl and Savage went to the twelfth floor, but Savage did not remove the suitcase. Instead, he returned to the Broad Street apartment where he had left a second suitcase of black vinyl with plaid side panels. He removed a yellowish plastic bag from the suitcase and discarded it in a dumpster. Savage then cut up
the suitcase, placed it in a garbage bag, and threw it in the incinerator.
B. The Indictment(s), the Inadvertent Release, and Pretrial Motions
On January 19, 1984, the Essex County Grand Jury returned a two count indictment against Roy D. Savage, charging him with purposeful and knowing murder of Carolyn Hubbard by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) and (2) and with hindering apprehension, contrary to N.J.S.A. 2C:29-3. Cheryl Hubbard was charged in count three of the same indictment with hindering apprehension. The State served a Notice of Aggravating Factors registering its intention to prove aggravating factor N.J.S.A. 2C:11-3c(4)(c) ("c(4)(c)"). That indictment was dismissed and superceded by a second indictment presented February 2, 1984, which amended the date of the crime. A Notice of Aggravating Factors specifying the same aggravating factor was served pursuant to the superceding indictment.
The Public Defender represented the defendant at his arraignment and entered a plea of not guilty. The Public Defender also filed a number of pre-trial motions challenging the constitutionality of N.J.S.A. 2C:11-3, the Death Penalty Act, and death qualification of jurors and served Notice of Intention to Rely inter alia on the Insanity Defense or an Absence of State of Mind Defense. On March 28, 1984, a private attorney substituted as counsel. The trial court denied the motions relating to the constitutionality of the statute and to death qualification of jurors. Defendant's new counsel did not pursue the insanity or diminished-capacity defenses.
On Friday, June 22, 1984, after the first indictment had been dismissed, defendant was released and went to New York City. He called his lawyer at 11:30 a.m. on Tuesday, June 26, 1984, to notify him of the release. After communicating with both the Prosecutor's Office and the court, defendant's counsel convinced
defendant to turn himself in. Defendant did so on June 26, 1984.
In State v. Savage, 198 N.J. Super. 507, 487 A.2d 790 (Law Div.1984), the court ordered, over defendant's objection, the severance of the charge against Cheryl Hubbard. Jury selection proceeded from January 2 through January 17, 1985. The trial commenced on January 18, 1985, and defendant was found guilty of both counts on January 24, 1985. The jury found that the aggravating factor outweighed the mitigating factors; the court merged the hindering-apprehension count with the murder conviction and sentenced defendant to death on January 28, 1985.
C. The Trial -- Guilt Phase
The State's case centered on the testimony of Cheryl Hubbard. That testimony differed from her prior statements primarily because she was required to omit any reference to defendant's drug use or to Jackie Cobb's murder, disappearance, or even to her presence in the apartment on the morning in question. With those omissions, her testimony at trial substantially corroborated her third, August 23, 1984, statement.
The State also relied on the eyewitness testimony of Cheryl's daughter, Hausikima Hubbard, who was eight years old at the time of the trial. She testified that on the morning of the alleged murder, she watched Savage scrape Carolyn's ear with a nail file, causing her to bleed. Defense counsel argued unsuccessfully that Hausikima was incompetent to testify. In addition, the State produced witnesses from New Jersey and New York who had observed Roy Savage's bizarre behavior during the week following the murder, particularly in carrying the leaky, foul-smelling suitcases and running nude through the streets of New York. Finally, the State presented expert medical testimony from those who had examined the recovered torso. Dr. Pablo Roy, who performed the autopsy, testified that the state of decomposition was consistent with a date of
death approximately four days earlier. He estimated the height of the victim between 5'3" and 5'5" -- consistent with Carolyn Hubbard's height -- and the victim's weight as approximately 130 pounds -- consistent with that of Carolyn Hubbard. Dr. Roy testified that any of the amputations -- head or limbs -- could have caused death. Dr. Gilbert Melnick, a board-certified radiologist, compared x-rays of Carolyn Hubbard with x-rays of the torso, and testified to a high likelihood that they depicted the same person. This testimony completed the State's case against Roy Savage.
Defense counsel presented a reasonable-doubt defense, arguing that the State could not prove that defendant had murdered Carolyn Hubbard. Defense counsel called no witnesses. After the State rested, defense counsel moved into the record, over the prosecutor's objections, Cheryl Hubbard's third statement, which recounted the probable killing of Jackie Cobb and the extensive drug use. He argued that the jury could then see the inconsistencies between Cheryl Hubbard's initial testimony and her third statement and could therefore conclude that her testimony was biased and unreliable. He also alleged that the State's medical experts could not prove that the torso belonged to Carolyn Hubbard. Defense counsel did not argue diminished capacity based on the drug use testimony; rather, he based his case on the inconsistency of Cheryl Hubbard's testimony and the inconclusive results drawn by the medical experts.
The trial court charged the jury on manslaughter, aggravated manslaughter, purposeful killing, knowing killing, purposeful causing of serious bodily injury resulting in death, and knowing causing of serious bodily injury resulting in death. The jury returned a verdict of purposely causing death.
D. The Trial -- Penalty Phase
The sole aggravating factor advanced by the State was c(4)(c), that the murder involved torture, depravity of mind, or aggravated battery. The prosecutor simply moved into evidence
the exhibits and testimony from the guilt phase. Defendant sought to establish as mitigating factors that defendant was under extreme mental or emotional disturbance, 2C:11-3c(5)(a); defendant's age, 2C:11-3c(5)(c); that defendant's capacity to appreciate the wrongfulness or his conduct was impaired as a result of mental disease or defect or intoxication, 2C:11-3c(5)(d); that defendant had no significant prior history of criminal conduct, 2C:11-3c(5)(f); and any other factor relevant to defendant's character or record or to the circumstances of the offense, 2C:11-3c(5)(h). The defense called Fay Vonder Savage, Roy's legal wife, who testified that he had been "a good man" who had worked hard, had not gotten into trouble, had provided well for his children, and helped other people. She also related that Roy had turned himself in voluntarily after having been released. Mary Parham, defendant's mother-in-law, testified that she had known defendant for fifteen years, and that "if he did something like that, I really think he would be sick." She recalled an incident while Savage was in the Service, when he had to be hospitalized for "something mental."
After defense counsel's summation, the trial court allowed the defendant to make an unsworn statement. He began by stating that he had been misled to believe that he could not testify without his lawyer's consent. He also alleged that he had received ineffective assistance of counsel, pointing out that his attorney had met with him only once before trial, and had called no witnesses in his defense. He then read a long, rambling letter he claimed to have received from Cheryl Hubbard in which she claims she testified as she did because she was afraid of being killed. He then proceeded to speak to the jury of a massive conspiracy against him by drug pushers and pimps who had been trying to kill him and his women for some time and who had set him up for this crime to get rid of him.
During deliberations, the jury asked whether it had to be unanimous with respect to the existence of mitigating factors. The court proposed instructing the jury that if they are not
unanimous, then those who find the mitigating factor present may consider that in the weighing process. When the defense counsel objected to that instruction, the trial court simply answered the question "no."
The jury found that aggravating factor c(4)(c) existed. The jury also unanimously found that the mental disease/intoxication mitigating factor, c(5)(d), existed, and one juror found that the extreme mental or emotional disturbance factor, c(5)(a), existed. The jury found that the aggravating circumstance outweighed the mitigating and sentenced the defendant to death.
E. Post-Trial Proceedings, Remand Hearing
On August 4, 1988, the state applied for an order permitting it to medicate defendant forcibly with anti-psychotic drugs. At a pending hearing the court found that Savage was mentally ill and actively psychotic. Ruling that he was a danger to himself and others, the court granted the state's application, and committed him to the Department of Human Services (DHS). In making that determination, however, the court authorized Savage's continued incarceration at CSU, without a physical transfer to a DHS facility. The Appellate Division affirmed. 233 N.J. Super. 356, 558 A.2d 1357 (App.Div.1989).
One month later, on September 7, 1988, we remanded the case to the trial court to expand the record on defendant's claim of ineffectiveness of counsel. On November 14, 1988, before addressing the ineffectiveness issue, the trial court held a hearing to determine whether Savage was competent to participate in the remand proceedings. When asked whether he felt competent to participate in such a hearing, Savage responded: "I know I'm competent, feel and know. Knowing is a great sense of feeling." During questioning, he stated that he disagreed with the court's prior determination that he had mental problems requiring medication. Savage also explained that while he was on the Capital Sentencing Unit, there was a "hookup on [his] body," although he did not "really know what
a hookup was." Savage testified that as a result of the "hook up" he was "sodomized and pain was being put to [his] body to force [him] to sign a power of an attorney."
On February 21 and 22, 1989, the Court continued hearings to determine whether defendant was competent to testify in the proceedings and also on the issue of ineffectiveness of counsel. Dr. Peter Schiffman testified for defendant. After meeting with him on several occasions, and once briefly in the court-room, he expressed his opinion that defendant suffered from paranoid schizophrenia. His review of defendant's background and symptomology was consistent with an onset of the disease while defendant was in his early teens. He based that belief on Savage's totally illogical speech, his intense hallucinations, his bizarre delusional beliefs including webs, hookups, and pain, and his inappropriate emotional tone. He also testified that defendant had suffered from a serious mental illness at the time of the offense.
The attorneys who had been assigned to represent defendant in 1983 by the Public Defender's Office also testified for the defense. They stated that during their representation, they had visited defendant six to eight times in the Essex County Jail. Finding defendant "evasive, hostile, aggressive and paranoid," they had decided after two visits to pursue a psychiatric defense and had planned to have Savage examined by a neurologist. One of the attorneys had based his decision on defendant's drug use, the fact that he had jumped out of a Harlem window and received a head injury, the bizarre facts surrounding the crime, and defendant's demeanor. Additionally, he stated that Savage had physically attacked him once during an interview to demonstrate how a detective had "treated him like a dog." The attorney testified that after having been relieved as counsel, he offered to talk to defendant's new counsel, but counsel had declined the offer.
Defense counsel also was called as a witness. He could not recall how often he visited defendant at the Essex County Jail,
"but could be inclined to agree" with the jail records, which indicated one visit. He admitted that he was aware that the Public Defender had filed a notice of intention to rely on an insanity defense, but when asked why he didn't discuss the case with them, he replied: "For what reason?"
With respect to his investigation, defendant's attorney testified that he worked alone, without the assistance of an investigator. He did not speak with anyone prior to trial except Fay Vonder Savage, although he had some telephone conversations with Savage's brother-in-law and perhaps his father-in-law. He did not communicate with any people listed as possible state witnesses. He did not recall whether he had viewed Hausikima Hubbard's videotaped testimony. He stated emphatically: "I didn't attempt to talk to anybody and that covers the waterfront. The people I wanted to talk to I had statements by." The statements referred to were the statements of witnesses given to the State. He did, however, "invest three or four beers" in Newark bars "to see what [he] could hear about the defendant."
Defense counsel did not communicate with the State's experts who identified Carolyn Hubbard's torso. He retained no experts of his own to challenge their testimony. Counsel never reached out for a psychiatric or mental health professional to evaluate Savage's mental state. He explained that "nothing jog[ged] [his] mind" that such an examination was necessary, because "at no time in [his] contact with Mr. Savage did [he] ever get the impression that [Savage] had any kind of mental disease or aberration." He was aware of records regarding Savage's psychiatric hospitalization while in the Navy, but deemed them "umimportant. I didn't follow it up." He dismissed as "third-hand hearsay" the suggestion in a police report that Savage jumped out of a Harlem window.
When asked whether he had informed Savage of his right to testify, counsel responded: "I think" I spoke to Mr. Savage about it, and "I suppose" he elected not to testify. He also
stated that he "probably" explained his strategy to defendant, but could not recall how he did it. He stated that his defense centered on impeaching Cheryl Hubbard's testimony by pointing out her self-interest and the inconsistencies between her three statements. He never showed defendant Cheryl Hubbard's August 23, 1984, statement implicating him in the crime. When asked whether he had considered that Cheryl Hubbard's statement implicated defendant in Jackie Cobb's murder, he explained that Savage was not charged with that murder, and moreover that the Supreme Court might find that the judge erred in not excising the statement. He did not recall that during trial, he strongly opposed excising the statement.
Dr. Azariak Eshkenazi testified for the State that defendant was presently competent to proceed in the remand hearing. Describing Savage as illogical, paranoid, delusional, and hallucinating, Dr. Eshkenazi suggested that Savage suffered from a "well-encapsulated delusional disorder." He believed that when Savage committed the offense, he was neither insane nor unable to form the intent to commit a crime as the result of a mental disease or defect. Additionally, Dr. Eshkenazi believed that Savage had been competent to testify during his trial.
At the conclusion of testimony, the trial court found that defendant was competent to participate in the remand proceeding. It also ruled that counsel had not rendered ineffective assistance, at the guilt phase, finding that his performance was neither deficient nor prejudicial to defendant.
Ineffective Assistance of Counsel
The principal issue on this appeal is whether defendant was denied effective assistance of counsel in violation of the sixth amendment of the federal Constitution and Article I, paragraph 10 of the ...