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State v. Clausell

Decided: August 30, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
JAMES D. CLAUSELL, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



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

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

Pollock

[121 NJ Page 306] A jury convicted defendant, James Clausell, of capital murder, three counts of aggravated assault, possession of a firearm with the purpose to use it unlawfully against the person of another, and possession of a handgun without a permit. Defendant appealed to this Court as of right. R. 2:2-1(a)(3). The State concedes that the trial court failed to instruct the jury that defendant could be convicted of capital murder only if he knowingly or purposely caused the death of the victim, as opposed to knowingly or purposely causing serious bodily injury that resulted in death. Because there is a rational basis in the evidence for the jury to have found defendant intended to cause only serious bodily injury, his conviction for capital

murder must be reversed. State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). Errors in the jury instruction on aggravated assault require reversal of those convictions as well.

I

Shortly after midnight on August 12, 1984, Edward Atwood was shot and killed through the front door of his home in Willingboro, New Jersey. At approximately 10:45 on the evening of August 11, while Mr. Atwood was away, his wife and daughter, Tanya, responded to a knock at the front door. Two men whom Mrs. Atwood did not recognize were standing on the front step. Mrs. Atwood testified that one of the men stood directly in front of the door, while the other stood off to the side. The man in front of the door asked, "Ed?," and Mrs. Atwood stated that he was not home. The man to the side of the door responded, "I told you, man." Mrs. Atwood asked the man in the front of the doorway for his name, to which he replied, "Dwayne." The two men then departed.

Because the men were unfamiliar to her, Mrs. Atwood asked her son, Darrell, if he knew anyone named Dwayne. Darrell said that he did not. When Mrs. Atwood noticed the men walking past the house a few minutes later, she and her children watched them from a window on the second floor. None of the Atwoods could identify the two men.

Edward Atwood returned home with his grandparents, Hubert and Bessie Dixon, a little after midnight. While he and his wife were in the kitchen, Tanya came downstairs and, through the window in the front door, saw that the two men had returned. She informed her parents that the men were at the door. As Mr. Atwood approached the front door, one of the men knocked. Mrs. Atwood and Tanya followed Mr. Atwood to the foyer. Both grandparents were close by. Darrell sat at the top of the stairs.

The Atwood home had both a wood and glass interior door and an exterior screen door. When Mr. Atwood opened the

interior door, Dwayne stood in front and, as before, the other man stood to one side. Through the screen door, Dwayne said, "Ed?" Mr. Atwood replied, "you got the wrong guy," and moved quickly to close the door. Darrell testified that as the door was closing, Dwayne moved out of the doorway. The second man stepped forward and, shooting through both doors, fired a shot at Mr. Atwood. As the victim fell, the other members of the family ducked. The unidentified man moved closer to the screen door, and aiming downward, again shot through both doors. Then he ran away. Within hours of the shooting, Mr. Atwood died from a single bullet wound to the left chest. The other bullet, which did not hit him, was later recovered.

The investigation of the Atwood shooting gained momentum early in September. On September 7, 1984, Mrs. Atwood saw a television broadcast of a police photograph of a man identified as Dwayne Wright. She immediately notified Burlington County investigators that she believed it was the same man who had been at her door the night of the shooting. On that same day, investigators, who had been questioning the victim's neighbors, were informed that Roland Bartlett, the owner of the house directly behind the Atwoods', would not speak to them. Around the same time, the Federal Bureau of Investigation notified the Burlington County Prosecutor's Office that an anonymous informant had identified Dwayne Wright, defendant, and a woman named Jennifer Schall as the perpetrators of the Atwood shooting.

Investigators questioned Paul Grant, a friend of Wright, on September 19, 1984, and he provided details of the shooting. Grant identified Wright and defendant as the two men at the Atwood house on August 11, and named Schall as the driver of the "getaway car." When the investigators interviewed Schall on September 24-25, she admitted that on the night of the shooting she had driven Wright and defendant to New Jersey from Philadelphia. She claimed, however, that she had not known that they intended to murder anyone.

Two days later investigators presented Mrs. Atwood with a photographic lineup that contained photographs of Wright, Grant, and defendant. She identified Wright, but not Grant or defendant, as one of the assailants. Viewing the same lineup, Tanya did not identify anyone. A search the next day of the Wright and Clausell residences yielded no evidence.

The Burlington County Grand Jury indicted Wright and defendant for capital murder, N.J.S.A. 2C:11-3a(1) and -3a(2); murder, N.J.S.A. 2C:11-3; conspiracy to commit murder, N.J.S.A. 2C:5-2; five counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); unlawful possession of a weapon with purpose to use it unlawfully against another, N.J.S.A. 2C:39-4a; and unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b. The two men were tried jointly.

The State sought to establish that defendant and Wright had been hired to kill Atwood by Roland Bartlett, the Atwoods' neighbor and the alleged leader of a Philadelphia drug-distribution ring known as the "Mini Mob." Bartlett had quarrelled with the victim over Bartlett's dog.

At trial, Grant stated that in late June 1984, he had been approached by Anthony Bartlett, Roland Bartlett's son, who asked him to murder "someone" for $5,000. Grant claimed that he refused. He also claimed that he had been with defendant and Wright on August 11, 1984, when defendant's beeper had signalled. According to Grant, members of the "Mini Mob" used the electronic-paging devices as a means of communication.

Grant stated that defendant had responded to the page from a pay phone. Defendant had placed a call and asked to speak to "D," allegedly one of Bartlett's ringleaders. After hanging up, defendant had told Wright, "[t]onight's the night. We need a ride tonight. We have to do it." According to Grant, Clausell and Wright had told him they would each collect $2,000 for the murder. Grant also claimed Wright had told defendant to "get the gun," and that defendant had responded by retrieving

a .357 long-barrel Magnum from his house. At approximately 9:30 p.m., Grant saw defendant and Wright enter Schall's blue Camaro and drive away.

Schall, a cocaine dealer who was the girlfriend of defendant's brother, Johnny Clausell, testified under a grant of immunity. She stated that a couple of days before the shooting, in response to defendant's request, she agreed to take him to New Jersey. On August 11, 1984, Wright made a similar request, and she told him that she had already arranged to take defendant there. Before entering Schall's car, somewhat after 9:00 p.m., defendant placed "a ball of newspaper" in the trunk.

While driving, Schall asked the men about the purpose of the trip. Defendant told her that they needed to collect money owed them for drugs. When Schall asked what they would do if the man did not have the money, the men told her they would "smack him around a little bit or beat him up."

According to Schall, the group drove to New Jersey and parked the car down the street from the Atwood home. The men removed the ball of newspaper from the trunk and went to see if the man they wanted was home. Schall waited in the car, and a few minutes later the men returned. The newspaper was gone, and defendant was carrying an object wrapped in his sweatsuit jacket. The men told Schall that the man's wife had said that he was not home, but that they wanted to wait.

After approximately an hour, defendant saw car lights approaching. As instructed, Schall returned to the Atwoods' house. On turning to ask Wright if he was going to talk to the man, she saw that Wright had a gun. Defendant asked Wright for the gun, but Wright replied that it was his turn. The two men left the car with defendant carrying the gun, again wrapped in his jacket. Shortly thereafter, Schall heard two gunshots, and Wright and defendant ran back to the car. The three then returned to Philadelphia.

On the return trip, defendant and Wright discussed going to the Fleetwood Club, allegedly owned by Bartlett, to be paid. Schall dropped the two men at the club and went home.

On the morning after the shooting, Schall saw Wright and defendant on the street. Defendant told her they "did good" and had been paid. They then gave Schall some money for driving them to New Jersey.

Grant also saw Wright the day after the shooting. Wright told Grant that he "took care of business" and was going to be paid. Later, according to Grant, Wright showed him $1,200. Grant testified on direct examination that the phrase "took care of business" referred to a "hit" or a "contract," meaning to "shoot somebody." On cross-examination, he stated that a "hit" meant a "killing."

A couple of days later, Schall saw defendant at the Clausell residence. Defendant told her that the victim had been shot because he had sued Bartlett after Bartlett's dog had bitten him, and Bartlett wanted him "hurt." In fact, Atwood had filed a municipal court complaint against Bartlett for failure to provide water to his dog and for leaving excessive amounts of animal excrement for a lengthy period of time in the dog's kennel. Bartlett was acquitted of the charge of intentional cruelty by failure to provide water, but was fined for the failure to remove excrement.

Sometime later defendant told Schall that the victim had died and that defendant needed her to give him some cocaine so that he could use it to regain the gun from someone to whom he had lent it. Defendant also stated that "they were in trouble" and needed to retrieve the gun.

At trial, defendant and Wright did not deny that Atwood had been shot. Relying on an alibi defense, they claimed that they had not been involved. Neither testified, but Wright presented his girlfriend, Rhonda Clanton, as an alibi witness. She testified that Wright had been with her at the time of the shooting. The defense theory was that it was Grant and defendant's

brother, Johnny Clausell, whom Schall had driven to New Jersey.

Before closing arguments, the trial court dismissed the conspiracy-to-commit-murder charges against both Wright and defendant. After deliberating for about three hours, the jury found defendant guilty of purposeful or knowing murder. It also found that defendant had committed the act by his own conduct, implicitly finding, therefore, that he, not Wright, had shot the victim.

The jury also found defendant guilty of aggravated assault of Mrs. Atwood, Tanya Atwood, and Bessie Dixon, Edward Atwood's grandmother. It acquitted him, however, on the assault charges concerning Darrell Atwood and Hubert Dixon, Edward Atwood's grandfather. Finally, the jury convicted defendant on both weapons charges. The jury returned identical findings against Wright, except that it did not find that Wright had fired the gun. Hence, Wright was not the subject of a death-penalty proceeding, and received a life sentence with thirty years of parole ineligibility on the knowing- or purposeful-murder conviction. On the other convictions, he received a consecutive sentence totaling six years and three months. The Appellate Division affirmed his conviction, and we denied certification. 118 N.J. 193, 570 A.2d 958 (1989).

In the penalty phase, the State, without adducing additional proof, relied on two aggravating factors: (1) that defendant had knowingly or purposely created a grave risk of death to someone other than the victim, N.J.S.A. 2C:11-3c(4)(b); and (2) that defendant had committed the murder for payment, N.J.S.A. 2C:11-3c(4)(d).

The defense submitted three mitigating factors: (1) the age of defendant at the time of the offense, N.J.S.A. 2C:11-3c(5)(c); (2) the absence of a significant history of prior criminal activity, N.J.S.A. 2C:11-3c(5)(f); and (3) any other factor relevant to defendant's character or the circumstances of the offense, N.J.S.A. 2C:11-3c(5)(h). Concerning the first two factors, the

State stipulated that defendant was twenty-one years old at the time of the offense and that he had no significant criminal record. Defendant presented five family members to testify in support of the final, "catch-all" factor.

After approximately one-and-one-half hours of deliberations, the jury unanimously found both alleged aggravating factors. The jury also found that all three mitigating factors had been established. Because of some confusion over the requirements of the death-penalty statute, the trial court instructed the jury to determine both whether each aggravating factor outweighed all mitigating factors and whether all the aggravating factors outweighed all the mitigating. The jury unanimously concluded that each aggravating factor outweighed all the mitigating factors beyond a reasonable doubt. It also concluded that all the aggravating factors outweighed all the mitigating factors beyond a reasonable doubt. Accordingly, the court sentenced defendant to death.

II

Defendant asserts that his capital-murder conviction must be reversed because the trial court's jury instruction regarding knowing or purposeful murder did not comply with our decision in Gerald, supra, 113 N.J. 40, 549 A.2d 792. We agree. This Court held in Gerald that imposition of a death sentence on a defendant who did not intend to cause his or her victim's death would violate the State Constitution's prohibition against cruel and unusual punishment. 113 N.J. at 85, 549 A.2d 792. As a result, "a defendant who is convicted of purposely or knowingly causing 'serious bodily injury resulting in death' under N.J.S.A. 2C:11-3(a)(1) and (2), or either of them -- as opposed to one who is convicted of purposely or knowingly causing death under those same provisions -- may not be subjected to the death penalty." Id. at 69, 549 A.2d 792.

The State concedes that the jury charge in this case did not distinguish between intent to cause death and intent to cause

serious bodily injury. Because this trial preceded by over two years our decision in Gerald, the lack of such a charge is understandable. As we have recently stated, however, if the evidence is "minimally adequate" to provide a rational basis for a finding that defendant intended to cause only serious bodily injury, then defendant's capital-murder conviction must be reversed. State v. Pennington, 119 N.J. 547, 561, 575 A.2d 816 (1990); State v. Coyle, 119 N.J. 194, 209, 574 A.2d 951 (1990). We conclude that the evidence in this case provides that rational basis. Although understandable, the absence of a Gerald charge compels reversal.

Objective evidence and the testimony of two prosecution witnesses, Jennifer Schall and Paul Grant, establish the need for a Gerald charge. Schall testified that several days after the shooting defendant had told her the reason for the shooting was that Roland Bartlett wanted to "hurt" the victim, Edward Atwood. Paul Grant testified that Wright and defendant had been paid to perform a "hit," and further testified to the effect that in the parlance of the "Mini Mob," "hit" meant "shooting," not necessarily killing. Moreover, when defendant had approached Schall for help in regaining his gun, the implication was that he was surprised that the victim had died, suggesting that defendant had not intended to kill him.

This testimony is confirmed by portions of Schall's pretrial statement to investigators. The statement, as Justice Handler explains in his dissenting opinion, post at 357-58, 580 A.2d at 251-52, implies that Wright, not defendant, had shot the victim, and that the shooter had aimed low, presumably to injure, not to kill. Specifically, Schall stated in part:

So, from what they told me, they tried to shoot at this guy and they shot low. He said they were shooting at his legs and that he was just gonna, he was trying to shoot his leg or something like that, hit him in the leg and that he didn't, he didn't think he hit him, he said.

The proposition that the shooter had deliberately aimed low also is supported by the testimony of the victim's son, Darrell

Atwood, who stated that the shooter "pointed downward" when taking the "last shot."

Although other parts of Schall's statement were used to cross-examine her, the material portion was not so used, and the statement was not admitted into evidence. Consequently, we do not rely on it. As a practical matter, however, the statement confirms our conclusion that the record evidence suffices to support a charge that defendant intended not to kill, but to cause serious bodily injury.

Further confirmation appears from the circumstances of the shooting. The shooting occurred at night, and the lighting may have been obstructed. Two doors blocked defendant's view. At the time of the shooting, Atwood had nearly closed the interior door. Thus, not only was defendant's view blocked, but he shot through both the outer screen door and the partially-closed interior wood door. Defendant quickly fired two shots through the doors, and did not pursue Atwood into the foyer. Arguably, if his intent was not to injure but to kill, he would have pushed open the door to assure that Atwood was mortally wounded. Instead, after having fired two shots, only the first of which struck the victim, defendant fled.

The trial court also perceived some ambiguity in the evidence regarding defendant's intent, and charged the jury on aggravated and reckless manslaughter as well as knowing or purposeful murder. Although such a charge does not prove that defendant intended to cause only serious bodily injury, "[t]o the extent that the evidence sufficed to support a charge that he acted recklessly, it raised the possibility that [defendant] did not intend to cause death." Pennington, supra, 119 N.J. at 562, 575 A.2d 816.

In his dissent, Justice Stein concludes that the evidence supports only one conclusion, that defendant intended to kill the victim. Post at 376-77, 580 A.2d at 261-62. For the reasons previously set forth, we disagree. Ante at 313-14, 580 A.2d at 228-29. As we recently wrote, moreover, "[i]t may be that

another jury confronted with the same evidence will reach the same result. Defendant, however, is entitled to a fair trial. Sustaining the verdict in the face of an incorrect charge would deprive him of that right." State v. Martin, 119 N.J. 2, 34, 573 A.2d 1359 (1990).

In the absence of a charge in accordance with Gerald, we cannot determine whether the jury convicted defendant of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury. See Pennington, supra, 119 N.J. at 560, 575 A.2d 816. Because the evidence here could rationally support a finding that defendant intended only serious bodily injury, we reverse defendant's capital-murder conviction and remand the matter for retrial.

III

Defendant asserts that because the trial court's instruction regarding aggravated assault was erroneous, his convictions for that offense must also be reversed. We agree and conclude that error was sufficiently prejudicial to warrant reversal of defendant's assault convictions.

A person is guilty of aggravated assault if he or she "[k]nowingly under circumstances manifesting extreme indifference to the value of human life points a firearm * * * at or in the direction of another whether or not the actor believes it to be loaded." N.J.S.A. 2C:12-1b(4). Under the New Jersey Code of Criminal Justice (the Code), "a person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result." N.J.S.A. 2C:2-2b(2). Thus, a person can commit an aggravated assault within the meaning of N.J.S.A. 2C:12-1b(4) only if he or she is aware that it is practically certain that his or her conduct will result in the pointing of a firearm at or in the direction of another person.

In this case, the trial court did not inform the jury that it could convict defendant of aggravated assault only if it found

that defendant was aware that it was practically certain that when he pointed the gun into the Atwood foyer, he was pointing it at or in the direction of persons other than Edward Atwood. When outlining the elements of aggravated assault, the court failed to charge the jury that to find defendant guilty, it must first find that defendant was aware of those other persons. Although the court defined "knowing" conduct, it suggested that defendant had to know merely that he was pointing a gun, not that he had to know he was pointing it at or towards a person. The court stated, in relevant part:

[The indictment in this case] charges aggravated assault separately against all the other members of the family who were there in the hallway. * * * In order for you to find a defendant guilty of [aggravated assault], the State has to prove the following two elements.

First, that the defendant pointed a firearm at or in the direction of another. Whether or not the defendant believed the gun to be loaded. And second, that the defendant acted under circumstances he was aware of and which manifested extreme indifference to the value of human life.

[A] person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of a particular nature or that the attendant circumstances exist or he's aware of the high probability of their existence. A person acts knowingly with respect to the result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. One is said to act knowingly if he acts with knowledge, consciously if he comprehends his act. In other words, when the defendant pointed a firearm, he was aware that he was doing so or he was aware that it was highly probable that his act may result in the pointing of a firearm in such a fashion. It is immaterial whether or not any of the other members of the family were the people who were intended to be the victim of this. It doesn't matter who the person intends to be pointing at, as long as he does point at someone.

What does the charge * * * mean when they say [sic] point a firearm at somebody? If I point a firearm at the jurors who are sitting in the front middle of the jury box, I am also said to be pointing a firearm at the people who are sitting around hear [sic] them. So the statute doesn't try to get into that kind of a distinction. It is really a matter for your common sense and judgment. * * * [I]t is on the discretion of the jury as to whether you would consider under those circumstances the firearm was pointed in your direction in that it was under circumstances manifesting extreme indifference to the value of human life.

Defense counsel objected to the charge because it indicated that aggravated assault consisted of only two elements: (1) pointing the gun at or in the direction of another person; (2) under circumstances manifesting extreme indifference to human life. The court did not, however, provide a curative instruction.

Defense counsel also objected that the charge implied that the victim's subjective state of mind was determinative of where the gun was pointing. In response, the trial court gave the following supplemental instruction:

During the course of these discussions, I talked with you about the charge of aggravated assault. And I discussed with you the fact of it is a jury decision as to whether a pistol is pointed at somebody. The statute says, if you point a pistol at or in the direction of a person under circumstances manifesting an extreme indifference to the value of human life, that's an offense. The question of whether it is at or in the direction [of another] is a question for the jury to decide. And you base it on what you envision happened and not on what the people say the gun was pointed at them feel. In other words, this is the kind of question where you don't look at the minds of the people who are apparently the victims. You look at the reality of the situation and you decide what really happened.

Thus, while the court correctly informed the jury that it was to decide if defendant had pointed the gun at someone, the court failed to note that to find defendant guilty, the jury must also determine whether defendant knew the gun was pointed at someone other than Edward Atwood. Neither counsel objected to the charge on this ground, which is raised for the first time on appeal.

In our view, the erroneous charge had a "clear capacity to bring about an unjust result," and requires reversal of defendant's aggravated-assault convictions. See State v. Hock, 54 N.J. 526, 538, 257 A.2d 699 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). This Court has recognized that "'[a]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Collier, 90 N.J. 117, 122, 447 A.2d 168 (1982) (quoting State v. Green, 86 N.J. 281, 287, 430 A.2d 914 (1981)). As a result, "erroneous instructions on material issues are presumed to be reversible error * * * [and] are 'poor candidates for rehabilitation under the harmless error philosophy.'"

State v. Crisantos (Arriagas), 102 N.J. 265, 273, 508 A.2d 167 (1986) (quoting State v. Simon, 79 N.J. 191, 206, 398 A.2d 861 (1979)); accord State v. Weeks, 107 N.J. 396, 410, 526 A.2d 1077 (1987).

As previously indicated, when defining "knowing" conduct in connection with the aggravated-assault charges, the court repeatedly stated that the crime consisted of only two elements. Thus, the charge undermined the importance of a finding that defendant acted knowingly. See State v. Butler, 27 N.J. 560, 594-95, 143 A.2d 530 (1958) (noting that "[t]he criminal law cannot be administered justly or efficiently if the jury is allowed to speculate as to what conduct the law intended to proscribe by a specified crime"). As defendant argues, the overall effect of the instruction was to suggest to the jury that it did not matter whether defendant was aware that it was practically certain that he was pointing the gun at other family members in the foyer. Under the Code, however, such awareness is crucial for conviction under N.J.S.A. 2C:12-1b(4).

The State incorrectly asserts that the trial court dismissed the aggravated-assault charges as to Darrell Atwood and Hubert Dixon. In fact, the jury acquitted defendant on those counts, convicting him of assault only of Tanya Atwood, Valerie Atwood, and Bessie Dixon. That acquittal, however, does not prove that the jury understood the necessity of finding that defendant had acted knowingly. Rather, the jury could have found merely that defendant had not pointed the gun at or in the direction of Darrell Atwood or his great-grandfather based on their location in the foyer. In the absence of a proper charge, we cannot assume the jury found defendant had knowingly pointed the gun at the three other family members. As a result, defendant's assault convictions also are reversed and remanded for retrial.

IV

Defendant raises numerous other grounds for reversal of his conviction and death sentence. He argues that the Death

Penalty Act (the Act) is unconstitutional because it fails sufficiently to narrow the jury's discretion in determining who will receive the death penalty. We rejected a similar claim in State v. Ramseur, 106 N.J. 123, 182-97, 524 A.2d 188 (1987), and decline defendant's invitation to reconsider that holding. Defendant also asserts that because the decision to seek the death penalty is left to the discretion of the county prosecutor, it is inevitably imposed in an arbitrary and capricious manner, in violation of the eighth and fourteenth amendments to the federal constitution. We have rejected that argument as well in State v. Koedatich, 112 N.J. 225, 250-54, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989), and reaffirm that holding today.

Because we are reversing defendant's conviction and sentence on other grounds, we do not address every argument raised on appeal. Certain of the alleged errors arose because defendant was tried jointly with Wright, a circumstance that will not recur on remand. We limit our discussion to those issues that may arise again on retrial.

A. Voir-Dire Questionnaire

Defendant argues that he was denied the right to a fair trial by an impartial jury because the trial court failed to ensure that the death-qualification process did not bias the jury. U.S. Const. amends. VI and XIV; N.J. Const. of 1947 art. I, para. 10. Before the voir dire, prospective jurors were asked to complete a seven-page questionnaire. An entire page of that document outlined the procedures to be followed during the penalty phase of a capital trial. That explanation concluded with the following statement:

Like the general population of our country, the people in this jury panel probably have widely differing opinions. Some of you may believe that the death penalty should never be imposed no matter what crime the defendant committed. Others may believe that the death penalty should always be imposed if a defendant is found guilty of murder no matter what the circumstances. Some of you may believe that the death penalty is proper in some

cases but not others. Some of you may not have formed opinions on the subject.

Having any of these views does not necessarily disqualify you from serving on the jury in the case. You are disqualified only in [sic] your view is so hard and firmly held that you will not follow my instructions at the close of the trial with respect to whether a defendant is guilty, or if found guilty, whether the death penalty should be imposed.

In short, your views about the death penalty disqualify you only if they would prevent or substantially impair your ability to perform your duties as a juror and follow my instructions.

Before beginning the selection of the jury, the court summarized these statements in its introductory remarks to the prospective jurors.

We reviewed a similar questionnaire in State v. Williams, 113 N.J. 393, 411-13, 550 A.2d 1172 (1988), and stated that we "have serious reservations concerning the propriety of this type of instruction * * * [because] it effectively tells a juror what answers * * * lead to automatic excusal and what responses avoid excusal." Id. at 412, 550 A.2d 1172. On remand, the trial court should avoid such language in its jury questionnaire. Although it would be helpful for the court to provide an outline of the Act, id. at 412 n. 5, 550 A.2d 1172, it should not specify the views that would disqualify a prospective juror.

B. Evidence of Other Crimes

In their trial testimony, Grant and Schall referred to other criminal acts allegedly committed by defendant. That evidence, defendant contends, was inadmissible under Evidence Rule 55. He further contends that the trial court's failure to issue a limiting instruction constitutes plain error. R. 2:10-2. In response, the State argues that all testimony regarding defendant's prior criminal conduct was admissible to prove defendant's intent and motive in killing Edward Atwood.

Our analysis begins with Evidence Rule 55, which provides:

Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong on another specified occasion but, subject to Rule 48, such

evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.

Under the Rule, specific instances of past misconduct not the subject of a criminal conviction are inadmissible to prove that defendant is a "bad man" and therefore likely to commit crimes. State v. Moore, 113 N.J. 239, 275, 550 A.2d 117 (1988). When evidence of other crimes is admitted to prove some other material fact, the court should give a limiting instruction. See State v. Stevens, 115 N.J. 289, 304, 558 A.2d 833 (1989). In that regard, Evidence Rule 6 provides that "[w]hen relevant evidence is admissible * * * for one purpose and is inadmissible * * * for another purpose, the judge shall restrict the evidence to its proper scope and instruct the jury accordingly." Moreover, evidence regarding a defendant's prior misconduct must be excluded under Evidence Rule 4 if the trial court concludes that the prejudicial impact of such evidence outweighs its probative value. Ramseur, supra, 106 N.J. at 265, 524 A.2d 188. See generally Stevens, supra, 115 N.J. at 298-304, 558 A.2d 833 (discussing history and application of Evidence Rule 55).

Defendant points to numerous instances in which Grant and Schall referred to criminal activity engaged in by Roland Bartlett's "Mini Mob," and thus, inferentially, by him. Defendant also contends that their references to threats and attacks made against them as a result of their testifying at defendant's trial implied that he was guilty merely by association with Bartlett's organization.

The State correctly notes that the bulk of the challenged testimony was properly admitted to prove defendant's motive for shooting Atwood. Although evidence regarding the "Mini Mob" was necessarily damaging to defendant, it was not prejudicial. Indeed, some of the testimony to which defendant now objects was adduced on cross-examination by his own counsel. Unlike the evidence at issue in State v. Rose, 112 N.J. 454, 505-06, 548 A.2d 1058 (1988), the testimony about defendant's

prior bad acts was neither abundantly repetitive nor highly inflammatory. Because the evidence had a limited purpose, however, a limiting instruction should have been given, even though defense counsel never requested one. Id. at 507, 548 A.2d 1058. We need not determine whether the absence of such an instruction, standing alone, would be sufficient to require reversal. On remand, if the damaging testimony is again elicited, the trial court should give a limiting instruction.

As to the witness Schall, some of her testimony is related only tangentially to defendant's motive for shooting the victim. For example, Schall described an insurance-fraud scheme in which defendant and his brother assisted her in burning her car so that she could obtain the proceeds.

We need not, however, predetermine the admissibility of this testimony. For our purposes, it suffices to caution the trial court that on remand it should carefully consider whether these and similar references to prior bad acts by defendant would be admissible under Evidence Rule 55. The court should also determine whether the probative value of such evidence outweighs its prejudicial impact. Evid.R. 4. If it does not, the evidence should be excluded. Ramseur, supra, 106 N.J. at 266, 524 A.2d 188.

C. Identification Evidence

Defendant also challenges the identification of co-defendant, Dwayne Wright, from his voice and from a photographic array. Before trial, Valerie Atwood, the victim's widow, selected Wright's picture from a photographic array compiled by investigators from the Burlington County Prosecutor's Office. She identified Wright as the man who had called himself "Dwayne." Although defendant's picture was also included in the photographic lineup, Mrs. Atwood did not identify him as the second man at her house on August 11. Tanya Atwood was shown the same array, but did not recognize any of the men in the police photographs. She did, however, identify Wright at trial. Darrell

Atwood testified that he had not seen either man's face, and was unable to identify either of them. Bessie and Hubert Dixon did not testify. Consequently, no eyewitness to the shooting identified defendant as one of the assailants.

Although Mrs. Atwood had informed investigators that she had spoken briefly with the man identified as Dwayne Wright, she did not participate in a pretrial voice lineup to try to identify him by voice as well as by picture. Nevertheless, over defense counsel's objections, Mrs. Atwood was permitted to make an in-court identification of Wright's voice. Wright stood in front of the witness and repeated the only two words she had heard "Dwayne" say: "Ed" and "Dwayne." Based on Wright's saying those two words, Mrs. Atwood testified that he was the man who had called himself "Dwayne" on August 11.

Because the defense's theory was that neither Wright nor defendant had been at the Atwood residence on the night of the shooting, identification of the two assailants was crucial. Defendant now argues that Valerie and Tanya Atwood's identification of Dwayne Wright was unreliable and should not have been admitted into evidence. More specifically, defendant argues that the improper identification evidence violated his rights to due process and a fair trial. U.S. Const. amends. V and XIV; N.J. Const. of 1947 art. 1, paras. 1, 10.

1. Standing

Initially, we conclude that defendant has standing to challenge the identifications of his co-defendant. Although a litigant generally may assert only his or her own constitutional rights, State v. Saunders, 75 N.J. 200, 208-09, 381 A.2d 333 (1977), when the party raising the claim "is not simply an interloper and the proceeding serves the public interest, standing will be found." In re Quinlan, 70 N.J. 10, 34-35, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976).

Defendant claimed that neither he nor Wright had been at the Atwood residence on August 11, so any evidence that placed Wright at the scene also bolstered the State's case against defendant. Thus, Valerie Atwood's identification of Wright's voice adversely affected defendant. Moreover, the voice identification helped resolve a critical question at trial -- which of the defendants had stood directly in front of the door and which had fired the shots. Because defendant has a substantial personal stake in the admissibility of the identification evidence, we conclude that he has standing to challenge the trial court's ruling on that question. Cf. State v. Ravenell, 43 N.J. 171, 183, 203 A.2d 13 (1964) (holding defendant has no standing to attack voluntariness of co-defendant's statement because it was admitted solely against co-defendant, all references to defendant had been deleted, and appropriate limiting instructions were given).

2. The Photo Identification

Defendant claims that Valerie Atwood's in-court and pretrial photographic identifications of Wright were inadmissible because they were "clearly influenced by suggestive factors." We disagree.

As the United States Supreme Court has stated, "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968). In Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), the Court held that reliability is the "linchpin" in determining admissibility of identification testimony. Id. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. To determine whether admission of identification evidence will violate due process, courts must determine whether "the corrupting effect of the suggestive

identification" outweighs its reliability. Ibid. Factors to be considered in evaluating reliability include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description * * *, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Ibid. (citing Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)); see also State v. Hurd, 86 N.J. 525, 548, 432 A.2d 86 (1981) (discussing the federal cases).

Viewed against those standards, the photographic lineup procedure was not impermissibly suggestive. See State v. Madison, 109 N.J. 223, 234, 536 A.2d 254 (1988) (finding pretrial identification unduly suggestive based on "sheer repetition of defendant's pictures"). Before trial, the court conducted a hearing to determine the admissibility of the photographs. Evid.R. 8; United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). At that hearing, Detective Michael Scott Fitz-Patrick of the Burlington County Prosecutor's Office testified that he prepared a photographic lineup and on September 27, 1984, presented it to Mrs. Atwood. All the pictures depicted black males who had slight facial hair. No names were on the photographs, and Wright's picture was not highlighted. After viewing the array for two minutes and without any prompting, Mrs. Atwood identified Wright's photograph.

Although Mrs. Atwood had previously told investigators that the photograph of Wright that had appeared on television depicted the man who had been at her house, it is unclear whether the picture included in the lineup was identical to that photograph. Even if the photograph was identical, however, the record supports the trial court's finding that the identification procedure was not so suggestive as to give rise to a substantial likelihood of misidentification. State v. Ford, 79 N.J. 136, 398 A.2d 95 (1979), rev'g on dissenting opinion 165 N.J. Super. 249, 254, 398 A.2d 101 (App.Div.1978); State v.

Farrow, 61 N.J. 434, 450-53, 294 A.2d 873 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973).

The trial court also correctly concluded that there was "nothing constitutionally unreliable about the identification * * *." As the court noted, Mrs. Atwood had a substantial opportunity to view Wright at a time when she was particularly interested in his identity. Her description of the assailant was consistent with Wright's actual appearance. The time lapse between the identification and the crime -- six weeks -- was not extensive, and Mrs. Atwood was confident of her identification. Thus, the totality of the circumstances indicates that Mrs. Atwood's identification of Wright was properly admitted into evidence. Biggers, supra, 409 U.S. at 199, 93 S. Ct. at 382, 34 L. Ed. 2d at 411.

3. Tanya Atwood's In-Court Identification

Tanya Atwood could not identify Wright or defendant from the same photographic lineup as that shown to her mother. Some nineteen months later, however, at trial, she identified Wright as the man who had called himself "Dwayne." Defendant asserts that that identification should not have been admitted because it "rested upon influences other than the witness' observations during the crime * * *." We cannot agree.

Notwithstanding that Tanya Atwood identified defendant for the first time in court, her identification was constitutionally valid. See United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.1986) (observing that no decision of the Supreme Court requires in-court identifications to meet the same standards of reliability as pretrial identifications), cert. denied, 479 U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987). Although undercut by the long delay between the crime and the trial, the reliability of the identification is supported by other considerations. Like her mother, Tanya had ample opportunity to view the assailants under circumstances in which she was seeking to establish their

identities. The courtroom atmosphere was suggestive, but not so much so as to outweigh the reliability of the identification. Defense counsel had ample chance to challenge the accuracy of the identification on cross-examination, and the jury was free to discount its value based on Tanya's inability to identify anyone on earlier occasions. See Domina, supra, 784 F.2d at 1368 (noting that one advantage of in-court identification over pretrial identification is that jury can observe witness during identification process). We conclude that the identification was properly admitted.

4. The Voice Identification

Mrs. Atwood's in-court voice identification is more troubling. The constitutional safeguards applicable to visual identifications apply equally to voice identifications. State v. Johnson, 138 N.J. Super. 579, 582, 351 A.2d 787 (App.Div.), certif. denied, 71 N.J. 340, 364 A.2d 1072 (1976). Consequently, a voice identification is inadmissible if its reliability is outweighed by the suggestiveness of the identification procedure. Reliability depends on such factors as the witness's opportunity to hear the accused and the consistency with prior voice identifications. See Biggers, supra, 409 U.S. at 199-201, 93 S. Ct. at 382-83, 34 L. Ed. 2d at 411-12 (holding that identification evidence, including voice identification, was properly admitted based on determination that "totality of the circumstances" indicate that identification was reliable, even though procedure was suggestive).

Defendant correctly argues that the procedure in this case was suggestive. The identification occurred in the courtroom, where the witness's attention was already focused on Wright. See Domina, supra, 784 F.2d at 1368 (noting that "there can be little doubt that the initial in-court identification is suggestive"); see also Webb v. Havener, 549 F.2d 1081, 1086-87 (6th Cir.) ...


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