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State v. Moore

Decided: January 23, 1991.


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

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


[122 NJ Page 425] This capital case was tried in June of 1987, four months before our decision in State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987). The date is crucial because the pivotal question in this case is the application of the diminished-capacity defense established under N.J.S.A. 2C:4-2. In Breakiron we [122 NJ Page 426] ruled that even though the statute imposed a burden of proof on the defendant to establish the diminished-capacity defense, the burden imposed was to show only the existence of the mental disease or defect, not that the disease or defect would negate a criminal mental state. That interpretation, we concluded, would pass constitutional muster because it imposed no burden on the defendant to disprove an essential element of the crime charged. In point of fact, even if this case had been tried after, and in accordance with, Breakiron, it would still contain a federal-constitutional flaw -- at least in the view of the Third Circuit. In Humanik v. Beyer, 871 F.2d 432, 443, cert. denied, U.S. , 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989), the Third Circuit ruled that the Breakiron construction failed to meet federal due-process requirements because imposing any burden of proof on the defendant created a "filter" that impermissibly relieved the State of its obligation to prove the defendant guilty beyond a reasonable doubt of each and every element of a crime. The State petitioned the United States Supreme Court for review of the Humanik decision, but the Supreme Court denied relief. We administratively advised trial and appellate courts that in order to avoid a constitutional stalemate, we ought to conform the applications of the statute to the Humanik ruling. Having instructed trial and appellate judges to do so, we can do no less here. The Legislature has since amended the diminished-capacity law. L. 1990, c. 63 (amending N.J.S.A. 2C:4-2). Courts will no longer charge that defendants have asserted a statutory affirmative defense. Of course, juries will continue to be required to consider all evidence in a case, including any evidence of mental disease or defect proffered by a defendant, relevant to the state of mind that the State must prove. In addition, proposed legislation, passed in the State Assembly and now awaiting action in the State Senate, would require consideration of commitment for any defendant who is relieved of criminal culpability by virtue of a diminished-capacity defense. A. 760, 204th Leg., 1st Sess. (1990).

The defense is of particular significance here because defendant's state of mind is really the only issue. The evidence is overwhelming that defendant killed his wife and child. Whether in cold blood, rage or anger, or with callous indifference to the consequences of the brutal blows inflicted on them is undoubtedly all that remains for a jury to decide. Crucial to the jury's determination, in defendant's view, is that he suffered from a mental disease or defect of mind on the occasion of the killing to such an extent that he did not intend to kill or did not know that he was killing his victims. His counsel argues that the State should have had to prove that the killings were knowing and purposeful despite the evidence of his mental disease or defect. This is effectively what federal-constitutional law requires. Humanik v. Beyer, supra, 871 F.2d 432. It is close to the construction that we adopted in State v. Breakiron, supra, 108 N.J. 591, 532 A.2d 199.

Not having the benefit of the later-announced decisions, the instructions to the jury here required, in violation of Breakiron/Humanik, that defendant prove that the mental disease or defect negated his knowledge or purpose to kill. The error in the charge is conceded. It is the fault of no one. The language of the statute was followed. The only question is whether the error is harmless. For the reasons to be set forth in detail in the opinion, we cannot find in the circumstances of this case that the constitutional error committed on so fundamental an issue in a murder trial of this type was harmless. Because this ruling requires reversal of the guilt phase of this capital-murder trial, it renders moot most of the other issues. As we have done in other cases, we shall discuss in detail only issues that are likely to recur in the retrial of this case and that are not clearly resolved by our other capital cases.


The case involves a particularly shocking hammer killing of a young wife and her eighteen-month-old child as the denouement

of a marital breakup. For purposes of this appeal we shall accept without necessarily endorsing in specific terms the general recital of the events set forth in the State's brief.

The murder took place on Sunday evening, June 29, 1986, at the couple's apartment at 207 South Harrison Street, East Orange, New Jersey, following a family outing that ended in an argument and the death of the wife and child at the hands of the husband and father.

At first a seemingly happy union, the marriage began to deteriorate in early 1986. The wife, Melva, complained of defendant's hours outside the home at work (he held a managerial position in an airline catering service at Newark Airport), while the husband complained of the wife's housekeeping. Despite the fact that she had become pregnant in early 1986, Melva told a friend in the spring of 1986 that she was thinking of leaving the defendant. Although he complained of his wife, defendant told a friend that he would not leave his home.

The situation worsened when Melva learned that defendant was having an affair with a co-worker, to whom we shall refer by her first name, Lizzette. Defendant and Lizzette planned to set up housekeeping together. It appears that defendant wanted Melva out of the family apartment so that he and Lizzette could occupy it. The plan was that Lizzette would move into defendant's apartment on Sunday, June 29, 1986.

That was the last day that any member of his family would occupy that apartment. That Sunday, Melva and Kory, her eighteen-month-old son, had not moved out. Defendant spent the day with Melva and Kory at a park. When they arrived home at about 9:00 p.m., defendant and Melva started arguing. The argument became a fight, an exchange of recriminations and hate-filled words. Defendant picked up a hammer and struck Melva repeatedly with it. According to the forensic pathologist, defendant struck more than twenty blows to her skull, spattering blood and brain throughout the apartment. In the course of killing Melva, defendant killed Kory. He claims

that it was an accident. Kory's body was found on the hallway floor about three feet to the right of his mother, whose body was lying in the bathroom doorway. Blood from the mother was found on the child's overalls. By approximately 9:30 p.m. both were dead.

About this time a telephone in the apartment rang. It was Ennis White, a friend of Melva. When Ennis asked for Melva, defendant said he did not know where she was. Defendant then put his bloodstained shirt and shorts into a paper bag and wiped the blood off himself.

He then went to pick up Lizzette, who was planning to move into the South Harrison Street apartment. Defendant told her that he had to stop off at work. When they arrived at work, he took the paper bag with his clothes out of the trunk and hid them in the building. He told Lizzette that it would be better if they spent the night at a motel. After moving her into a motel, he drove back to his place of work, retrieved the bag of clothes, including the towel, and threw it into a barrel in an abandoned building. He also threw the hammer onto the roof of the abandoned building. After eating, defendant returned to the motel and remained overnight with Lizzette.

On the following morning, Monday, June 30, 1986, a worried friend of Melva gained access to the apartment with the help of a superintendent. At 8:15 a.m. the police were at the scene. They found no evidence of forced entry, burglary, or robbery. They found blood on the telephone and a bloody palm print in the bathroom. Defendant arrived at the apartment early Monday morning. He was soon identified as the husband. He told the police that he had been at the Royal Inn motel the night before with his girl friend. Defendant did not tell the police about the 9:30 p.m. phone call. He was taken to the police station where he denied involvement. Following an emotional confrontation with Lizzette, defendant told her that when Melva started yelling at him, he got mad and he beat her with a hammer. When Lizzette asked "why Kory?" (the baby), defendant

broke down and cried. He said that he did not know. He said that he wanted only to be with Lizzette. Defendant then gave the police a written confession admitting the facts outlined above. He contended that Kory had jumped on Melva to "cover her" and in the process Kory was struck by accident. He told the police how he had abandoned his clothes and the murder weapon. The police retrieved these items. The police identified the palm print as that of defendant.

The jury found defendant guilty of two counts of capital murder and two counts of weapons-related offenses.

At the sentencing proceeding, the State asserted two aggravating factors on each murder: (1) that the murder was outrageously or wantonly vile in that it involved torture, depravity of mind, or an aggravated assault, N.J.S.A. 2C:11-3c(4)(c) (in Kory's case the State agreed to limit the c(4)(c) factor to depravity); and (2) the murder was committed while defendant was engaged in the commission of another murder, N.J.S.A. 2C:11-3c(4)(g). Concerning Kory's murder, the State asserted as an alternative to depravity of mind that defendant had committed it to escape detection. N.J.S.A. 2C:11-3c(4)(f). The jury unanimously found the presence of the two aggravating factors, c(4)(c) and c(4)(g), as to both killings, and unanimously found as mitigating factors defendant's lack of a prior record, N.J.S.A. 2C:1-3c(5)(f), and the catchall mitigating factor, N.J.S.A. 2C:11-3c(5)(h). One juror found defendant had been under the influence of extreme emotional disturbance, N.J.S.A. 2C:11-3c(5)(a). The jury unanimously found beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors. Consequently, the defendant was sentenced to death. The appeal to us is of right under R. 2:2-1(a)(3).


Diminished Capacity Issue

Defendant contends that the trial court imposed on him the burden of proof of a diminished capacity and thereby violated

his due-process right to have the State prove each and every element of the crime charged beyond a reasonable doubt.

N.J.S.A. 2C:4-2, which establishes the defense of diminished capacity, provided at the time of this trial:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense. Mental disease or defect is an affirmative defense which must be proved by a preponderance of the evidence.

As we held in State v. Breakiron, supra, 108 N.J. 591, 532 A.2d 199, the statute does not shift the burden of proof to the defendant to disprove an essential element of the case. Rather, the defendant needs to do only what the statute says: to prove the existence of a mental disease or defect. We believed that this was constitutional.

The Third Circuit Court of Appeals, in Humanik v. Beyer, supra, 871 F.2d 432, ruled that an instruction that a defendant has the burden of proving the existence of a mental disease or defect by a preponderance of the evidence denies him or her due process of law. In its view, the imposition of such a burden on the defendant violates the due-process clause by acting as a "filter" that may bar the jury's consideration of that evidence when the time comes to decide whether the State has proved, beyond a reasonable doubt, the criminal state of mind that is an essential element of the crime. Id. at 443.

Because certiorari was denied by the United States Supreme Court from the Humanik decision, Chief Justice Wilentz, on behalf of this Court, issued a memorandum on December 8, 1989, instructing all courts to apply the Humanik decision in pending appeals in order to avoid an intolerable conflict between state and federal courts in the circuit. The memorandum provided: "Of course, that fact does not require a reversal of every case presenting a diminished capacity issue. Other appellate principles may dictate a different result." See 124 N.J.L.J. 1562 (1989) (summarizing the memorandum).

Therefore, we must resolve two issues in this case: (1) whether there is error in the charge, and, if so, (2) whether the error in the charge requires reversal.


The initial charge to the jury on diminished capacity seems clearly to have placed the burden on the defendant to disprove an essential element of the crime. The initial charge follows:

The defendant contends that he was suffering from a mental disease or defect which made him incapable of the state of mind required to be proved for a murder, aggravated manslaughter, manslaughter or possession of a weapon. That is, he says that he was not able to act purposely, knowingly or recklessly; that his mental disease or defect prevented him from acting with any of those states of mind.

Mental disease or defect which would negate the state of mind which is an element of the defense is never assumed. Indeed, as I told you, indeed, people are capable of forming the requisite intent.

When the defendant contends that he does not have the requisite capability, he must prove by a preponderance of the evidence, that, (1) that he has the mental disease or defect, and (2) that it was of such a nature that it prevented him from acting purposely, knowingly or recklessly, depending on which state or states of mind are one of the elements of the offense that is under consideration.

The State does not have the burden of persuasion on this issue. The burden is on the defendant. And if you have found that the defendant did an act in question, then you must consider his state of mind accompanying the act or acts.

If the defendant has proved the mental disease or defect and that it negated his ability to form the state of mind, you must find him not guilty with respect to such crime. [Emphasis added.]

It is true that the charge in other respects conveyed to the jury the requirement that the burden of proof to establish each essential element of the crime always remained on the State. Early in its charge, the court instructed the jury that "the burden of proof is upon the State to prove the elements of a crime, and it never shifts. It remains on the State throughout the whole trial of the case." In addition, in concluding its charge on the defense of diminished capacity, the court told the jury:

All evidence bearing on that, all circumstances, including mental condition, and state of mind, may be considered. In other words, even if a defendant has failed to prove that he was not able to have a particular state of mind by reason of a mental disease or defect, that does not relieve the State of its job to prove that, in fact, at the time in question, the defendant had the requisite mental state when he took the actions which are crimes, if done purposely or knowingly.

However, the fact remains that the charge was contradictory. Contradictory and inconsistent charges are inherently inadequate as they "create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner * * *." Humanik v. Beyer, supra, 871 F.2d at 442 (quoting Francis v. Franklin, 471 U.S. 307, 323 n. 8, 105 S. Ct. 1965, 1975 n. 8, 85 L. Ed. 2d 344, 359 n. 8 (1985)). In responding to a jury request to explain the insanity and diminished-capacity defenses, the court recharged the jury:

As a part of his general denial of guilt, the defendant maintains he was not guilty of the crimes charged, either by reason of diminished capacity or lack of capacity, or by reason of legal insanity, or both. Those are separate concepts, but they have certain things in common, and we'll mention again the things in common.

First of all, the law entertains no prejudices against the defenses of diminished capacity or insanity. On the contrary, if the defense -- if either defense is sufficiently established, the law allows the defendant the benefit of it by an acquittal of all criminal responsibility. * * *

Under our law, all persons are assumed to be sane, and are assumed to be capable of forming the requisite state of mind, and therefore, responsible for their conduct until the contrary is established by them. Insanity and diminished capacity are affirmative defenses, and the burden of proving them or either of them by a preponderance of the evidence is on the defendant who asserts the defense.

And later:

And therefore, if the evidence were to be in balance with respect to mental disease or defect, or its effect, then the defendant who has the burden of proof with respect thereto has not met the burden. [Emphasis added.]


When a defendant contends that he does not have the capability, he must prove by a preponderance of the evidence; (1) that he had the mental disease or defect; and (2) that it was of such a nature that it prevented him from acting purposefully, knowingly or recklessly * * *.

The State does not have the burden of persuasion in this issue. The burden is on the defendant, as I've indicated. [Emphasis added.]

The combination of those instructions seems clearly to have conveyed to the jury that it was defendant's burden to prove that his mental condition negated the presumed culpability that attended his doing of the act. Although the court reinstructed the jury as well that the defendant's failure to disprove the requisite mental state did not relieve the State of its burden, we "cannot say with any degree of confidence which interpretation [the] jury adopted." Mills v. Maryland, 486 U.S. 367, 383, 108 S. Ct. 1860, 1870, 100 L. Ed. 2d 384, 399 (1988).


Notwithstanding the defect in the charge, the State argues that any error in the charge is harmless. The argument has support in a recent decision of the Appellate Division, State v. Carroll, 242 N.J. Super. 549, 577 A.2d 862 (1990), certif. denied, N.J. (1991). In that tragically similar factual circumstance, a stormy love relationship between a couple disintegrated, culminating in the crushing and stabbing murder of the thirteen-year-old daughter of the defendant's estranged wife.

The Appellate Division found the jury instruction in Carroll to be defective because it erroneously placed the burden of proving the existence of a diminished capacity on the defendant, contrary to Humanik. However, the error was harmless as the defendant had "failed to present evidence of the kind of mental disease or defect which would negate the mental state required to convict him of murder." State v. Carroll, supra, 242 N.J. Super. at 557, 577 A.2d 862.

The Appellate Division relied on this Court's opinions in State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), and State v. Breakiron, supra, 108 N.J. 591, 532 A.2d 199. In State v. Pitts, the Court concluded that the psychiatric testimony presented by the defendant, which characterized the defendant's behavior as a loss of emotional control ("rage reaction") rather than a loss of cognitive faculties, was not the kind of evidence that required the diminished-capacity instruction to be

submitted to the jury. 116 N.J. at 592, 562 A.2d 1320. In State v. Breakiron, we ruled that in order to qualify for the defense of diminished capacity, at a minimum the evidence must be shown to be capable of negating a mental element of the crime charged or otherwise to impair cognition. 108 N.J. at 619, 532 A.2d 199. Based on these two opinions, the Carroll court distinguished between a case presenting evidence of a mental disease or defect that impairs the cognitive state required to act knowingly or purposely and a case in which the evidence presented concerns a mental disease or defect "which produces an emotive reaction such as rage or impassioned impulse * * *." State v. Carroll, supra, 242 N.J. Super. at 558, 577 A.2d 862. The former case requires the submission of the diminished-capacity defense to the jury whereas in the latter case the defense need not be submitted.

Reviewing the testimony, the Carroll court determined that the defendant had failed to present evidence that his mental condition so impaired his cognitive faculties as to prevent him from acting purposely or knowingly. While stating in conclusory terms that Carroll's mental condition at the time of the homicide prevented him from acting purposely or knowingly, one medical expert asserted that a combination of mental diseases (atypical psychosis, organic brain syndrome, and borderline or mixed personality disorder) and the consumption of alcohol (chronic substance abuse) caused Carroll to become enraged and to lose control of his impulses. The court continued:

However, [the doctor] never stated that defendant suffered from an impairment of his faculties which prevented him from being cognizant of the fact that he was hitting his stepdaughter over the head with a scale and stabbing her in the throat with a knife and that it was practically certain his actions would cause death or serious bodily injury to the child. See N.J.S.A. 2C:11-3a(2). Therefore, [the doctor's] testimony did not mandate a jury instruction as to the defense of diminished capacity. [ Id. at 560-61, 577 A.2d 862.]

Another defense expert, a neurologist, concluded that Carroll had acted recklessly, not purposely or knowingly. He based his conclusion on the impression that a person who is indifferent to the consequences of his or her actions, one who does not care

whether the victim lives or dies, cannot be found to have acted knowingly or purposely. The neurologist believed that Carroll's intellectual impairment and consumption of alcohol caused him to lose "impulse control" and that he was "acting in a fury, in a rage" when he committed the murder. Id. at 561, 577 A.2d 862. The Appellate Division found that that testimony was not the kind of evidence that required the submission of a diminished-capacity defense to the jury.

Because "the only possible consequence of the court's * * * instruction to the jury regarding the defense of diminished capacity would have been to improve defendant's chances of securing an acquittal," the Appellate Division found that the erroneous instruction had not prejudiced Carroll, and that any error was harmless beyond a reasonable doubt. Id. at 563, 577 A.2d 862.

We are unable to agree, however, that the evidence in this case can be analyzed in the same way as the psychiatric testimony in the Carroll case. In this case the psychiatric witness testified that the fact defendant killed Kory in the course of killing Melva "indicates even more so and underscores the fact that he was not aware of what he was doing or not in control of what he was doing, because he certainly felt the opposite toward Kory [than he felt toward Melva]." And later when asked specifically by the prosecutor about the striking of Kory, "But [he] knew what he was doing?" Answer: "I think not. But there is always a continuum. He could have been subconsciously aware, minimally aware." As thin as the evidence was, it contained a diagnosis of a "brief reactive psychosis" that defendant suffered at the time of the murder as the result of stress.

In later cross-examination the prosecutor questioned whether defendant's consciousness of guilt, as shown by his concealment of the evidence, clearly established that he had consciously killed:

Q. Someone who knows they were guilty would get rid of the evidence, wouldn't they?

A. Shouldn't [one] who knows that he has killed two people, for whatever reasons. Guilty sounds like he did something deliberate, and my point is he has not.

Q. You don't think he deliberately killed?

A. That's right.

Another defense witness placed defendant's conduct closely into the rage pattern. He said that he interpreted "this type of a homicide to be a rage reaction, out of control, emotionally murder -- or homicide, excuse me. I'm sorry." To which the prosecutor replied: "I take it one of those emotions of the assailant could be hate as well, couldn't it, doctor?" That kind of testimony indeed would not qualify for the diminished-capacity charge. It might be a mitigating factor in a capital-sentencing proceeding, but surely would not qualify for the diminished-capacity charge.

Nonetheless, the admissible testimony of at least one of defendant's expert witnesses purported to establish the presence of a mental disease in the form of a stress-induced psychosis that grew out of the borderline personality disorder, which was described in some detail in the evidence. According to defendant's expert psychiatric witness, that disease or defect affected Moore's cognitive faculties.

Given the qualitative difference between the evidence in this case and that in Pitts and Carroll, we are unable to agree that any error in the charge can be regarded as harmless. Defendant presented evidence from which a jury could have concluded that the State had failed to prove the requisite state of mind beyond a reasonable doubt.


Other Issues


Pretrial Issues

1. Grand Jury Selection

Defendant challenges his conviction on the basis that his indictment and sentence at trial were returned by grand and

petit juries that were unconstitutionally selected. The petit jury issue is mooted by our disposition. On the grand jury issue, defendant asks us to revisit our decision in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987). To repeat what we said there:

At this time, however, and on the showing made by defendant in this case, we cannot say that the inadequacies in the present system rise to constitutional dimensions. Given the marginal strength of the statistical showing in comparison to other cases, the fact that the mechanism by which jury lists are now constituted is facially neutral and objective, the failure to demonstrate underrepresentativeness over a sufficient period of time, and the State's efforts at reform, we hold that defendant has failed to make a prima facie showing that the Essex County grand and petit jury selection procedures violate either the sixth or fourteenth amendments. [ State v. Ramseur, supra, 106 N.J. at 227-28, 524 A.2d 188.]

The parties seem to agree that "Essex County's jury selection procedures had not been altered since this Court's decision in Ramseur." They are not, however, referring to the method of selecting the grand-jury foreperson or any practice involving the balance of particular panels. Rather, defendant challenges the "source list and qualified pool because their underrepresentative composition ignores the defendant's constitutional right to a grand and petit jury drawn from a fair cross-section of the community."

We issued a caveat in Ramseur stating that if a significant statistical disparity were to continue "over a significant period of time," exclusive reliance on motor vehicle lists and voter registration data would become suspect. Id. at 227, 524 A.2d 188. Because defendant did not in this case attempt to demonstrate evidence concerning the caveat in Ramseur, we find that the grand-jury-selection procedures in this case were not unconstitutional.

2. Confession

Defendant contends that his oral and written confessions were obtained in violation of his constitutional rights.

Two critical issues have arisen with respect to the confessions: (1) were the confessions the tainted product of an illegal arrest?; and (2) did the questioning continue after defendant had requested the assistance of an attorney?

Concerning both, the law is of course well settled. See Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (incriminating evidence given by defendant to police during an illegal detention inadmissible when no intervening event breaks the connection between defendant's illegal detention and the incriminating evidence); State v. [Richard] Johnson, 118 N.J. 639, 573 A.2d 909 (1990) (unlawful detention of defendant by police followed by refusal to allow defendant to see counsel necessitated exclusion of statements); Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981) (police prohibited from initiating any interrogation of a defendant who has requested counsel); State v. McCloskey, 90 N.J. 18, 446 A.2d 1201 (1982) (interrogation of defendant fourteen hours after his request for counsel without inquiring whether he had spoken to counsel violated defendant's sixth-amendment rights requiring suppression of statements made during interrogation).

Each side presents a vastly different version of what occurred at the station house. According to Moore, he was immediately arrested at the apartment on Monday morning, handcuffed, and literally chained for a period of seven hours before he confessed to the murder.

According to the police, they requested that Moore come to the police station to assist in the investigation of the deaths in the family. Despite the fact that he had not been arrested, the police furnished defendant with Miranda warnings when they commenced questioning him in mid-morning of the Monday following the murder. Only gradually did the evidence begin to point inexorably at defendant. Defendant proffered the alibi that he had spent the Sunday evening with Lizzette at the Royal Inn motel. In addition, defendant offered the name of an

independent witness who could confirm that he was at the Royal Inn motel on the evening of the crime. The police left immediately to pick up Lizzette and run down his alibi.

As the police ran down each of the leads, they began to find holes in the story. By mid-morning the police had learned from Ennis White that she had called the Moores' apartment at 9:30 p.m. and that defendant had answered the phone, placing him at the scene of the crime at or near the time of death.

The police also interrupted the questioning to attend the autopsies of the victims. By mid-afternoon they had compiled the written statements from Lizzette and Ennis White and had become convinced that there were serious flaws in defendant's story. He had lied about his whereabouts on the night of the crime. He had a strong motive to end his relationship with his wife.

According to the police, it was Moore who asked to see Lizzette. He was told that she was in the Police Captain's office. At about 3:30 p.m. she was brought into the room. The result was graphically described by the police witness: "They jumped up and hugged each other and he said 'I did it for you,' and she started crying, hollering, and she passed out; I grabbed [her] baby." Within the hour defendant received renewed Miranda warnings and gave the oral and written confessions to the murders that he seeks to suppress.

At the suppression hearing both he and Lizzette insisted that he had repeatedly requested an attorney before he gave his impulsive confession to her in the presence of police or the more formal confessions. Ennis White also testified that she overheard defendant "ask for a lawyer a few times." Were this true, the police could not have continued to interrogate him once he had invoked his sixth-amendment right to counsel. Critical to his case was the credibility of his and Lizzette's testimony and, even more so, the testimony of Ennis White, who might be seen as an impartial witness. The trial court

resolved those credibility issues against defendant and his witnesses.

On the issue of illegal arrest, the trial court was satisfied, after considering all of the facts, that the State had established beyond a reasonable doubt that the defendant was not arrested on the morning of June 30, but rather had gone to the police station as a natural event in the routine investigation of the deaths in the family. The court noted that he had had quite a few hours to think about and prepare his defense in the case. He had taken the time to hide the bloody clothes and hammer. The court concluded that "[h]e obviously knew that the police would want to speak to him and he obviously came to the police station with the frame of mind that he could talk his way out of his problems." The court noted that he had a good education and a high-level job. He had previous experience with the law and an admitted understanding of Miranda warnings and constitutional rights. He gave information that was helpful to the police and indeed intended to lead them to his alibi witnesses. As a result of that information, the questioning stopped until the various leads had been run down.

On the question of whether defendant had requested the assistance of counsel, the court was also convinced that that had not been the case. "He claims that on six or so occasions he asked for a lawyer. I don't believe that testimony."

In support of its factual findings, the court pointed to several inconsistencies in the testimony at the suppression hearing. For example, a request for a lawyer would have been absolutely inconsistent with his purpose in being there, which was, as he himself admitted, to appear cooperative and to try to outsmart the police without in any way admitting any guilty knowledge or responsibility for the crime. Defendant also admitted that he had heard Ennis White's voice in another room at police headquarters, leading to the conclusion that he was not isolated from others since they were but ten or fifteen feet away.

The court discounted Lizzette's testimony on defendant's request for counsel because her statement to that effect was the product of repeated prodding by defendant's attorneys: "they kept asking me if he asked for a lawyer." The clear inference drawn by the court was that the idea of asking for a lawyer had been placed in her mind by those asking the questions. She would have had to have been rather dull not to have concluded this might be helpful to defendant. Ennis White's testimony might have been viewed more favorably to defendant if she had not lived with a man who had had numerous confrontations with the investigating East Orange Police Department and not been friendly with defendant at work.

In short, the court concluded: "Lest there be any question about the ability of Mr. Moore to lie, he has repeatedly admitted on the stand that he lied to the police officers in order to protect himself and that those were deliberate lies." It took little further to convince the court that Moore was lying when he said that he had invoked the right to counsel. After all, "the last thing the defendant had in mind was indicating that he wanted a lawyer since that would interfere with his attempt to talk his way out of the situation, so I do not believe the testimony of Ennis White in that regard. I think she was simply trying to help this defendant."

The trial court was satisfied, after considering all of the facts, that the State had established beyond a reasonable doubt that the defendant had not been arrested on the morning of June 30; that he had come voluntarily to the police station; that he stayed there voluntarily; that he never asked to leave; that he wanted to remain there as the police were continuing their investigation; that he wanted to continue to "play out his cards as long as he could" to avoid having these charges leveled against him. The court was further satisfied that all Miranda warnings were given to him; that he was asked if he understood his rights, including the right to have counsel; that he was not actually under arrest when he made the admission to

Lizzette. The court therefore concluded that the evidence seized as a result of the confession, the hammer and the clothing, was admissible in the proceedings against him. We believe that those factual findings are well founded in the record, and we sustain those rulings.

3. Voir Dire

Defendant contends that the trial court improperly limited the scope of questioning during voir dire, and that "the voir dire as a whole was woefully inadequate." Although that argument makes a broad-based challenge to the trial court's voir dire, defendant points specifically to three issues that he believes were improperly handled in the voir dire questioning: (1) whether the status of the victims would substantially impair a juror's ability to perform his or her duties; (2) whether jurors had biased attitudes toward mental-health and psychiatric defenses; and (3) whether jurors understood that a defendant is afforded the presumption of innocence until proven guilty. Defendant concludes that the trial court's limitations on these and other relevant questions during the voir dire process deprived him of his "fundamental right to a fair trial by an impartial jury." The State counters that the voir dire was "thorough in detecting juror bias," and that the trial court's "rulings regarding other areas of questioning were fully in accord with State v. Manley, 54 N.J. 259 [255 A.2d 193] (1969)."

In Manley the defense counsel sought to question prospective jurors about their ability to limit their consideration of his prior conviction to its appropriate purpose. The trial court refused to allow such questioning without some representation by defense counsel that defendant would take the stand during trial. On appeal, this Court upheld the trial court's decision to deny defendant's requested question to the voir dire panel. The Manley Court took that occasion to institute revised procedures for jury selection. In doing so, it stated that while "supplementary questioning [during voir dire ] by counsel personally is not foreclosed entirely, * * * control over its scope

and content is left to the experienced judgment and discretion of the trial judge * * *." Id. at 282, 255 A.2d 193.

Before making that conclusion, the Court also traced the history of voir dire. Under English common law, voir dire of a juror can be conducted only after a party has challenged that juror for cause and even then the voir dire must be conducted in support of that challenge. Id. at 272, 255 A.2d 193. Courts in the United States initially followed the English rule. However, over the last century, American courts moved toward allowing preliminary examination of prospective jurors. Id. at 272-73, 255 A.2d 193. The practice of voir dire evolved from a court-employed mechanism to insure fair and impartial jurors to a trial tactic intended to empanel a jury that is sympathetic to one side. Id. at 281, 255 A.2d 193. The Court gave the following tactics as examples of how attorneys had subverted the "true purpose of juror examination":

[E]fforts to indoctrinate, to persuade, to instruct by favorable explanation of legal principles that may or may not be involved, to lecture on the law and the facts and the relation of one to the other, the lecture ending in a question for form's sake. It means also * * * [to ask] the hypothetical question intended and so framed as to commit or to pledge jurors to a point of view or a result before they have heard any evidence, argument of counsel or instructions of the court. [ Id. at 280-81, 255 A.2d 193.]

To restrict voir dire to its intended purpose, the Court declared that, to the extent feasible, trial judges should interrogate prospective jurors, and may allow supplemental interrogation by counsel at their discretion. Id. at 281, 255 A.2d 193; see also R. 1:8-3(a) ("parties or their attorneys may supplement the court's interrogation in its discretion"). The Court concluded:

Administration of this rule will require trial judges to exercise greater control over the voir dire questioning than has been exercised in our State in modern times. The burden necessarily assumed by them will be compensated for in substantial measure by a shortening of the time for empaneling a jury * * * and by avoidance of the tedium associated with prolix and repetitious questioning, much of which intrudes into the aspect of the trial which should be dealt with by the judge alone at the proper point in the proceedings. [ State v. Manley, supra, 54 N.J. at 282, 255 A.2d 193 (citation omitted).]

In this case the trial court relied heavily on Manley in limiting the scope of questioning during voir dire. At a pretrial

conference, the court informed counsel that although it would allow questioning by each party, it would not permit any questioning that forced a juror to speculate on how a particular fact would influence his or her deliberations in the case. Rather, the court would permit the question of whether such facts "would substantially interfere with their ability to follow the law."

Defense counsel objected to that limitation repeatedly throughout the proceedings. Defense counsel wanted to ask more open-ended questions of individual jurors. His objection immediately after the voir dire of the first prospective juror more than adequately summarized his problem with the voir dire and the court's restriction: "[What] we all know is that they will be able to respond [only] robot-like to a question if they will follow the law." Defense counsel argued that by not allowing the jurors to express their attitudes and feelings about the particularly troubling facts of the case, the court's limitation of questioning during the voir dire "avoid[ed] receiving any information whatsoever about this juror."

One of the problems that we have in capital cases is that the constitutionally-limited Adams-Witt standard for disqualification of jurors in capital causes (would their personal views in the morality, utility, or efficiency of the death penalty "substantially interfere" with their ability nevertheless to follow and apply the State's death-penalty statute?) gets confused with the more general inquiry into juror predispositions or preferences that should mark the general jury-selection process. Adams v. Texas, 448 U.S. 38, 100 S. Ct. 521, 65 L. Ed. 2d 581 (1980) and Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). For example, in a non-capital case, we almost invariably would permit questioning of jurors about whether they would be inclined to give more credence to law-enforcement witnesses than to others. However, we do not ask the jurors whether the fact that some witnesses are law-enforcement officers "would substantially interfere with their ability to follow the law." Plain speaking is the best way to get

at such predispositions. The meaning of the Norman-French expression voir dire ("to speak the truth") conveys this idea.

In a sense, voir dire acts as a discovery tool. It is like a conversation in which the parties are trying to reveal the source of any such attitudes without manipulation or delay of the trial. However, in order for that discovery procedure to be effective, potential jurors need to have some basic comprehension about what their legal duties as jurors will be. In that sense, voir dire can act as a teaching tool. When necessary, courts can use voir dire as a way of educating potential jurors to the "legal requirements" of their responsibilities as jurors. State v. Leisure, 749 S.W. 2d 366, 375 (Mo.1988).

Although the voir dire issues have become moot because of the Breakiron/Humanik disposition, we believe the overall conduct of the voir dire in this case was sufficiently probing to assure that defendant received a fair trial by an impartial jury. We offer these comments for guidance in future capital trials.


Defendant's first argument involves the status of the victims, namely, the fact that Melva Moore was pregnant and Kory Moore was less than two years old at the time of their deaths. At the pretrial conference defense counsel offered the following question for voir dire consideration:

If it appeared from the evidence that Melva Moore was six months pregnant or Kory Moore was eighteen months old when he died, would that circumstance substantially interfere with your ability to perform your duties?

The trial court would not permit this question because it would be asking jurors to speculate "on what they might do or how their verdict might be influenced by certain contingencies." In its view, that questioning would contravene the intended scope of voir dire as contemplated by this Court in Manley. An early colloquy between court and defense counsel highlights their differences over the scope of the questioning:

[COUNSEL]: Your Honor, at this time, I'd like to note several things. First, our continuing objection to your Honor's precluding us from asking what we

consider to be extraordinarily significant questions pertaining to this particular case. I'm not going to reargue anything about that.

The most important [remaining] question, your Honor, deals with the child victim and the fact that Melva Moore was pregnant. Simply asking whether they have any feelings about the fact that a child was killed, which we are permitted to ask is not sufficient.

THE COURT: You want to ask them what the effect on them would be of the child being killed.

[COUNSEL]: Whether they feel that a child was killed, first, that they would be more likely to convict -- whether they would be more likely to convict merely for that reason; and more importantly, whether if a conviction is rendered, whether they would be more likely to impose the death penalty. In other words, whether they would create their own aggravating factor.

The court resisted this line of questioning, in part, it said, because killing a child could in itself be an aggravating factor, but more, we think, because of what it perceived to be the strictures of Manley. That approach overreads the purpose of Manley, which was not to eliminate judicial inquiry into juror biases in the context of the case but rather "to limit more stringently the conduct and scope of the voir dire." 54 N.J. at 280, 255 A.2d 193. For the Manley Court, this limitation of voir dire meant

eliminating the efforts to indoctrinate, to persuade, to instruct by favorable explanation of legal principles that may or may not be involved, to lecture on the law and the facts and the relation of one to the other, the lecture ending in a question for form's sake. It means also a prohibition of the hypothetical question intended and so framed as to commit or to pledge jurors to a point of view or a result before they have heard any evidence, argument of counsel or instructions of the court. [54 N.J. at 280-81, 255 A.2d 193.]

Yet, in spite of the trial court's early resistance to a more open voir dire, we believe that, as a whole, the voir dire was sufficiently probing in its attempt to weed out any prospective jurors who indicated through their answers that the facts of this case might impair their ability to decide defendant's guilt or innocence or decide the correct sentence.

We begin by noting that this voir dire, like others that we have seen, gradually took on a rhythm of its own as the jurors' attitudes became more apparent to court and counsel. In fact, the prosecutor almost invariably asked jurors if they had any

attitudes about the status of the victims that would "interfere with your ability to be fair and impartial." Sometimes defense counsel was permitted to ask without objection: "Would the fact that one of the victims here was a child influence you so that it would be more likely that you would impose the death penalty?" At other times the court resisted the question, ruling that counsel was trying to find "jurors who are sympathetic to your cause," and stating that "the fact that a person would be more likely to convict if it's a crippled person, a totally innocent person, a child, that's not bias. That's not bias at all."

If that is not grounds to excuse for cause, it surely shows a juror who could be excused peremptorily. See State v. Thompson, 142 N.J. Super. 274, 280, 361 A.2d 104 (App.Div.1976) (untruthful responses by juror infringe on "a valuable incident of the trial process -- the exercise of a peremptory challenge"). Still, the court was not inflexible. It permitted co-counsel for defendant to ask one juror an open-ended question about whether she had "any strong feelings or biases or prejudices" concerning the fact that there was a child victim. Yet, later it would not permit a juror to answer whether she would return a death penalty "in all situations where the mother was pregnant at the time of the murder." The court thought this was asking for a view on the case. Yet, the prosecutor was permitted to ask another person whether, knowing the victims were a pregnant mother and a child, "it would not be automatic, one way or the other."

In sum, there were occasions when the court seemed to feel that Manley would not permit questions about jurors' attitudes related to the type of case before it. Thus, when counsel asked a juror if the circumstances were such that "it might be more difficult for you to be fair to Mr. Moore," the court sustained objection to the question, ruling: "You are asking about the effect in a particular case." Of course he was. But that is the purpose of voir dire: to see if there are biases or predispositions in the "particular case" that is before the court.

The death-qualification process is "important, delicate, and complex," and requires a "thorough and searching" inquiry into "jurors' opinions and biases." State v. Williams, 113 N.J. 393, 413, 550 A.2d 1172 (1988) (Williams II). It is not enough just to ask jurors in a capital case whether the nature of the crimes would affect their ability to be fair in deliberating on a death sentence versus a term of years. The question is correct so far as it goes, but it really invites only one answer. Will many say that they will be unfair? Similar to the voir dire in Williams II, many of the jurors in this case gave rote responses to the question of whether the facts in this case would affect their ability to be fair to the defendant. It is also clear from the record that certain prospective jurors did have prejudices and biases pertaining to the facts of this case and the status of the victims.

Obviously, jury selection is not the place for opening statements or closing arguments. Under our single-jury capital-trial system, jury selection must, however, serve double duty as both a time to "death-qualify" jurors and a time to enable counsel to exercise the valuable constitutional prerogative of selecting a fair and impartial jury. The purposes of the inquiry are simply not the same, although they tend to overlap. State v. Zola, 112 N.J. 384, 397, 548 A.2d 1022 (1988), demonstrates the overlap and the proper method of dealing with it:

[A]t this initial phase of the trial the jurors fully understood that they would be given specific factors to guide them in the sentencing phase of the trial. The jurors all knew that this was a case of alleged rape-murder; they knew that they would be exposed to photographs that might shock them; they knew that the victim was elderly; they knew that they would be hearing testimony about narcotics; they knew that the case would turn in good measure on expert psychiatric evidence. Each juror was asked if he or she could evaluate such matters fairly and without predisposition. Some immediately and candidly told the court that they could not be impartial where drugs or rape or a helpless victim were allegedly involved. These jurors, as well as all whose professed lack of prejudice wavered on questioning, were discharged for cause.

We agreed in Zola that it would have been appropriate for the court or for counsel to have asked additional open-ended questions directed to any specific feelings that the jurors might

have had about capital punishment in that case. We do not view such questioning as involving juror manipulation or juror indoctrination. As noted, an unintended consequence of the establishment of the Adams-Witt test of "substantial interference" with a juror's deliberations as the outer boundary for the State's excuse of jurors for cause in a capital case is that trial courts seem inadvertently to have converted that standard into the only inquiry into juror qualifications. That was never the intention of the Supreme Court nor of this Court. Juror voir dire was never intended by Manley to be frozen into a series of "yes or no" responses. Judges who choose to question jurors themselves should be open to the suggestions of counsel. In State v. Long, 119 N.J. 439, 480-82, 575 A.2d 435 (1990), our review of the trial court's voir dire suggested how such questioning may proceed:

When the court renewed voir dire after the superseding indictment, it acknowledged the prosecutor's suggestion, based on the earlier jury selection, that "it was most effective last time by letting the juror, to some degree, lead you to where you want to go" -- in other words, there should be a flexible approach to the questioning rather than a reading of a set formula. The court used familiar examples for evaluating jurors, such as that one would not evaluate the jurors' attitudes in the same way as when they were "mouthing off in John's bar after a softball game."

The court referred to one occasion on which it had to stop counsel from what it considered an extensive line of questioning, but on the whole it was tolerant of questioning. Indeed, it said that when it detected that attorneys were getting onto a sensitive line of questioning with a few jurors, "I try to pick it up and ask it so that it doesn't look partisan. I also know that * * * what I mean, you don't want them to get irritated at you. I try to pick up on the line of questioning that you've asked even to the point of throwing in this idea you have asked * * *. To try to give it a balance and even-handedness." In short,

this trial court was quite open to considering the requests of counsel and indeed permitting them to examine witnesses themselves.

Therefore, in accordance with our decisions in Williams II, Long, and Zola, voir dire should allow more open-ended questioning on the issue of the status of the victims as it relates to any prejudice or predisposition affecting the juror's ability to adjudge fairly in the guilt phase or the ability to consider mitigating evidence in any penalty phase. In order to be justified, the inquiry need not necessarily lead to the excusal of any juror for cause. The standard for excusal of a juror for cause does not exhaust the scope of reasonable inquiry that might lead to the exercise of a peremptory challenge.


Defendant argues that the trial court improperly denied him the opportunity to ask prospective jurors about their attitudes toward insanity and mental-health defenses. The court based its decision on State v. Manley, supra, 54 N.J. 259, 255 A.2d 193, and State v. Kelly, 118 N.J. Super. 38, 285 A.2d 571 (App.Div.), certif. denied, 60 N.J. 350, 289 A.2d 795 (1972). Furthermore, the court expressed its belief that such questions would unduly prejudice defendant at that point in the proceedings, due to the fact that defendant had not yet admitted that he had committed the acts. Defense counsel disagreed, and argued that State v. Ramseur, supra, 106 N.J. at 247, 524 A.2d 188, and State v. Williams, 93 N.J. 39, 68, 459 A.2d 641 (1983) (Williams I), mandated a thorough, probing voir dire on any area of potential bias in capital cases.

In Kelly, defendant was charged with first-degree murder. During voir dire, defense counsel sought to inquire if the prospective jurors had any feelings about the defense of insanity and whether they would accept it if proven. The trial court did not allow that line of questioning, and the Appellate Division affirmed, concluding "that the objectives of Manley * * * would not be well served by a rule which mandates inquiries of prospective jurors concerning their attitudes as to substantive

defenses, particularly insanity, or as to other rules of law which may become implicated in the trial or in the court's ultimate charge." State v. Kelly, supra, 118 N.J. Super. at 51, 285 A.2d 571.

Intending to follow Kelly, the court waited until the jury-charge portions of both the guilt and penalty phases to address the issue of possible juror bias against the insanity defense and other mental-health defenses. During the guilt-phase charge to the jury, the court stated that the law "entertains no prejudice against the defenses of diminished capacity or insanity," and at the penalty phase instructed the jurors to consider the evidence surrounding mental health with a "fresh and open mind." The State contends that that was sufficient to insure that jurors would not be biased against defendant's mental-health defense, due to the fact that the jurors had sworn to follow and apply the laws of the State in their deliberations. Defendant argues on this appeal that those instructions were insufficient because they occurred too late in the process to permit detection of potential juror bias against the insanity or other mental-health defenses, and that the instructions did not adequately reveal any potential biases held by the jurors.

In support of that argument, defendant cites People v. Stack, 112 Ill. 2d 301, 97 Ill.Dec. 676, 493 N.E. 2d 339, cert. denied, 479 U.S. 870, 107 S. Ct. 236, 93 L. Ed. 2d 162 (1986), in which the Illinois Supreme Court ruled that an abuse of discretion occurs when a trial court refuses to probe, through voir dire, the jurors' attitudes concerning the insanity defense. The court stated:

A defendant's right to an impartial jury is not, therefore, protected where the sole inquiry into whether jurors will abide by the law allowing that controversial defense is the far broader and all-embracing question which the State contends was propounded in this case, namely, whether the jurors would follow the court's instructions on the law. [ Id. at 313, 97 Ill.Dec. at 81, 493 N.E. 2d at 344.]

The Stack court also indicated that other jurisdictions had held that a defendant has a right to have questions asked during voir dire concerning prospective jurors' attitudes on the insanity

defense when that issue is involved in the case. Id. at 313, 97 Ill.Dec. at 82, 493 N.E. 2d at 345 (citing United States v. Allsup, 566 F.2d 68 (9th Cir.1977); Washington v. State, 371 So. 2d 1108 (Fla.App.1979); State v. Olson, 156 Mont. 339, 480 P. 2d 822 (1971); State v. Sanders, 161 W.Va. 399, 242 S.E. 2d 554 (1978), overruled on other grounds, State ex rel. White v. Mohn, 168 W.Va. 211, 283 S.E. 2d 914 (1981)).

In this case, the concept of mental disease was critical to defendant's case throughout the trial. He conceded at the guilt phase that he had caused the deaths of his wife and child; nonetheless, he argued that he lacked the necessary mens rea requirement of knowingly or purposefully killing Melva and Kory. At the guilt-phase portion of the trial, defendant offered expert psychiatric testimony in support of the mental-health defenses of insanity and diminished capacity, and at the ...

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