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State v. Marshall

Decided: January 24, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT O. MARSHALL, DEFENDANT-APPELLANT



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

For affirmance as to Guilt Phase -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. For reversal as to Guilt Phase -- Justice Handler. For affirmance as to Penalty Phase -- Chief Justice Wilentz and Justices Clifford, Pollock, Garibaldi and Stein. For reversal as to Penalty Phase -- Justices Handler and O'Hern. The opinion of the Court was delivered by Stein, J. O'Hern, J., concurring in part and dissenting in part. Handler, J., dissenting.

Stein

TABLE OF CONTENTS

Page

Introduction 27

I. Facts 28

II. Pretrial Motions 62

A. Letters Seized in Best Western Mailbox 62

B. Venue 73

III. Jury-Selection Issues 79

A. Three Prospective Jurors Not Excused for Cause 80

B. Qualification of Juror Neil Marzano 87

C. Death Qualification 89

D. Constitutionality of Atlantic County Jury-Selection Pro-

cedures 98

IV. Guilt-Phase Issues 98

A. Photographs 98

B. Admissibility of Hearsay Statements of Robert Cumber 100

C. Cross-Examination of McKinnon 105

D. Expert's Examination of Tire 105

E. Admissibility of Victim's Hearsay Statements 110

F. Alleged Infringements on Defendant's Privilege Against

Self-Incrimination 113

G. Prosecutorial Questioning Concerning Defendant's Re-

tention of Counsel 121

H. Questioning and Argument Challenging Defendant's

Professed Love For His Deceased Wife 126

I. Exclusion of Testimony by Henry Tamburin 129

J. Preclusion of Portion of Testimony of Defendant's

Son John Marshall 130

K. Admissibility of Testimony Discrediting Defense Wit-

ness Rakoczy 131

L. Denial of Defendant's Motion for Mistrial Based on

State's Discovery Violations 133

M. Dilution of State's Burden of Proof 134

N. Sufficiency of the Evidence 136

V. Sentencing-Phase Issues 136

A. Aggravating Factor Duplicating Element of Crime 136

B. Instructions on Aggravating Factor 138

C. Absence of Mitigating Evidence 140

D. Adequacy of Sentencing-Phase Instructions 141

E. Presumption Against Imposition of Death Penalty 152

VI. Other Issues 152

A. Prosecutorial Misconduct 152

B. Ineffective Assistance of Counsel 164

C. Constitutionality of Capital Punishment Act 169

D. Cumulative Error 169

E. Proportionality Review 170

VII. Remand Hearing to Consider Alleged Brady Violation 171

Introduction 171

A. Disqualification of Prosecutor's Office from Hearing 176

B. Limitation of Discovery 178

C. Limitation of Cross-Examination Regarding Willfulness 185

D. Finding of Nonwillfulness 193

E. Materiality of Nondisclosure 199

F. The McKinnon Letters 205

Conclusion 207

Defendant, Robert Marshall, was tried and convicted of conspiracy to commit the murder of Maria Marshall, N.J.S.A. 2C:5-2 and 2C:11-3a(1) or (2), and of the murder of Maria Marshall as an accomplice who procured the commission of the murder by payment or promise of payment of money, N.J.S.A. 2C:2-6 and 2C:11-3a(1) or (2). After a separate sentencing proceeding on the murder conviction, see N.J.S.A. 2C:11-3c(1), the court sentenced defendant to death, as required by the jury's verdict. It merged the conspiracy conviction with the conviction for capital murder. Defendant appeals as of right to this Court. N.J.S.A. 2C:11-3e. We affirm defendant's convictions and the sentence of death.

Defendant was tried together with co-defendant Larry Thompson, who was also charged with conspiracy to commit the murder of Maria Marshall, N.J.S.A. 2C:5-2 and 2C:11-3a(1) or (2), and with the purposeful or knowing murder of Maria Marshall by his own conduct. N.J.S.A. 2C:11-3a(1) or (2); 2C:11-3c. The jury acquitted Thompson of both charges.

Co-defendant Robert Cumber, charged with conspiracy to murder Maria Marshall, N.J.S.A. 2C:5-2 and 2C:11-3a(1) or (2), and with purposely or knowingly causing the death of Maria Marshall as an accomplice, N.J.S.A. 2C:2-6 and 2C:11-3a(1) or (2), was tried separately, convicted on both counts, and sentenced to thirty-years imprisonment without eligibility for parole.

Pursuant to a plea agreement, co-defendant Billy Wayne McKinnon, indicted for the same offenses as Cumber, pled guilty only to conspiracy to commit murder, and was sentenced to five-years imprisonment. The details of McKinnon's plea agreement are described elsewhere in this opinion. Infra at 41, 586 A.2d at 104.

I.

Facts

Before summarizing the proofs presented at trial by the State and co-defendants Marshall and Thompson, we provide an overview of the evidence as a context for the discussion that follows. The State's case against defendant was weighty and compelling. Many of the State's proofs were indisputable, although their significance was sharply contested. Thus, the State proved and Marshall acknowledged his long-standing extramarital relationship with Sarann Kraushaar, which had developed to the extent that both contemplated leaving their respective spouses and living together. Marshall had taken preliminary steps toward renting a house in Beach Haven West for that purpose. It was also uncontested that Marshall had substantial debt, including a $128,000 home-equity loan and short-term bank debt in excess of $40,000. The State's proofs suggested a connection between Marshall's indebtedness and the large amount of life insurance he concededly maintained on the decedent, in excess of one-million dollars at the time of her death. Several of the policies had been acquired within months of the homicide, and Marshall and decedent were examined for an additional policy on the morning preceding Maria's death. Marshall testified that the amount of insurance maintained on himself and decedent was commensurate with sound insurance practice and realistically reflected the needs of the survivor in the event of the death of either.

The testimony of co-defendant Billy Wayne McKinnon was the most incriminating evidence against Marshall. McKinnon was a former sheriff's officer from Louisiana who was referred to Marshall by co-defendant Cumber, whom Marshall had met at a party in New Jersey in May 1984. Marshall conceded that he had hired McKinnon to investigate his wife, in order to determine whether she knew of his relationship with Kraushaar and to attempt to account for several thousand dollars in casino winnings Marshall had given Maria. Marshall admitted that he had met with McKinnon at least twice in Atlantic City, the last

meeting occurring at Harrah's casino on the night of the murder. Marshall also acknowledged that he paid McKinnon $6,300 for his investigative services, without receiving any work product, and that the last payment of $800 was made in cash at Harrah's on the night of the homicide.

McKinnon testified that Marshall hired him not to investigate his wife but to kill her. He testified that Marshall had paid him $20,000 or $22,000 prior to the murder, that an additional $15,000 was supposed to have been available for him in Marshall's pockets at the scene of the homicide, and that $50,000 more was to be paid to him out of the insurance proceeds.

McKinnon testified that the Oyster Creek Picnic Area had been selected with Marshall's concurrence as the crime scene. By prearrangement, Marshall was to feign car trouble on the way home from Atlantic City and pull into the picnic area on the pretext of checking to see what was wrong with his car. According to McKinnon, he had dropped off co-defendant Thompson at the picnic area before the Marshalls arrived and then had driven back to the toll plaza just south of the picnic area to await their car. He testified that the prearranged plan was for Thompson to hit Marshall on the head without seriously injuring him, and then to shoot and kill his wife. McKinnon testified that he had seen the Marshalls' car pass him at the toll plaza and, after delaying a few minutes, he had proceeded into the picnic area. When he got there, Marshall was lying on the ground and Mrs. Marshall had been shot. Thompson got into McKinnon's car with Maria Marshall's pocketbook and cash from Marshall's pocket, and then got out of the car in order to slash the right rear tire on Marshall's car to support his anticipated explanation for having driven into the picnic area. McKinnon drove out of the picnic area onto the southbound lane of the Garden State Parkway, and was observed by a motorist on the Parkway who described McKinnon's car and noted the high rate of speed at which it left the picnic area. Marshall testified that he was unable to identify the perpetrators, but

hypothesized that they had tampered with his tire and followed his car from Atlantic City in order to rob them.

Thus, the evidence at trial indisputably established that McKinnon, who had been hired and paid by Marshall and had met with Marshall at Harrah's on the night of the murder, had been present at the crime scene and had participated in the murder of Marshall's wife.

A. The State's Case

Shortly after 1:00 a.m. on September 7, 1984, State Troopers David Mathis and Joseph Randik were patrolling the Garden State Parkway in the vicinity of the Barnegat toll plaza. They heard a radio transmission directing another patrol car to proceed to the Oyster Creek Picnic Area. Because they were closer to the picnic area than the other patrol car, Mathis and Randik responded to the transmission. They entered the picnic area from the northbound ramp. To their left at the top of the ramp were two vehicles, defendant's two-door Cadillac and a white station wagon whose occupants had stopped to render assistance after defendant had waved them down on the Parkway. Defendant's car was facing southbound, about 125 feet from the crest of the 1,000-foot ramp leading into the picnic area. It was parked at the beginning of the easterly leg of the U-shaped paved loop that formed the perimeter of the wooded picnic area. The Cadillac's motor was running, its headlights were on, and both doors were open. The picnic area was dark, and thick underbrush obstructed its visibility from the Parkway.

Defendant informed Trooper Mathis that his wife had been shot and required an ambulance. Mathis inquired about the weapon used to shoot Mrs. Marshall. Defendant stated that they had been robbed and that the gun was not there. Mathis observed that defendant's forehead was injured and his cheeks and forehead were bloodstained.

Approaching defendant's vehicle, Mathis saw Maria Marshall lying face down across the front seat, both arms under her, and her head near the steering wheel. Mathis checked for a pulse but found none. The victim did not appear to be breathing. Mathis told Trooper Randik to call for an ambulance, the medical examiner, and the State Police Major-Crime unit.

Other police officers soon arrived at the scene, including Troopers Sink and Loblein to whom the initial State Police radio transmission had been directed, State Police Detectives John Petracca and George Joo, and Detective-Sergeants Richard McHugh and Charles Liber, who photographed the crime scene. The officers who testified at trial recalled various details about the crime scene. Specifically, they found Marshall's wallet on the ground near the passenger door. The right rear tire was flat and had a clean one-inch cut on the upper sidewall. There was a puddle of blood on the ground to the rear and right of the car. The glove compartment and trunk of Marshall's Cadillac were closed. The inside of the car was orderly and did not appear to have been disturbed. The officers found two shell casings, one lodged in the crease of the front passenger seat and the other between the driver's and passenger's seats. A gold-colored earring was on the driver's seat. The victim was wearing other jewelry, including a diamond engagement ring and wedding band, a pearl ring, a gold-colored watch, a gold necklace, and two gold bracelets. The victim's purse was missing.

Troopers Mathis and Sink and Detectives Petracca and Joo interviewed defendant at the crime scene. The police then took Marshall to Community Memorial Hospital where he was treated and released. He then returned home. Detectives Petracca and Joo, together with Investigator Edward Murphy of the Ocean County Prosecutor's Office, arrived at defendant's home at about 5:00 a.m. for further interrogation, after first proceeding to the hospital where they learned that Marshall had been discharged. After questioning defendant for approximately thirty minutes at his home, the officers drove Marshall to the

State Police Bass River barracks for additional questioning, conducted by Detective Petracca and Investigator Murphy. The officers returned Marshall to his home later that morning.

Except for variations concerning when he first noticed a problem with his car, Marshall's statements to the police officers who interrogated him that morning were substantially consistent. He stated that he and his wife arrived at the Meadows Restaurant in Harrah's Marina Casino at about 8:45 p.m. They had an 8:30 reservation. After dinner they played blackjack at separate tables. Marshall then paid off some markers to the casino. When they left at about 11:45 p.m., he had approximately two thousand dollars in his pocket and Mrs. Marshall had about $500 in her pocketbook. They traveled down Illinois Avenue to Route 30, and then to the Garden State Parkway.

According to Trooper Sink, Marshall said he noticed a vibration in his car just as he was leaving the Barnegat toll plaza on the Parkway, about two miles south of the picnic area. According to Detective Joo, Marshall said that his car would weave or "shimmy" at speeds of sixty to sixty-five miles per hour, and that he had first noticed that condition when he entered the Parkway from Route 30. Detective Petracca testified that when he interviewed Marshall at the crime scene, defendant said he had first detected a problem with his car about one mile south of the picnic area. According to Petracca, when he again interviewed Marshall at his home later that morning, defendant stated that he had noticed a problem with his car as soon as he left Harrah's, and that the car's tendency to sway had increased the further he drove.

Marshall told the investigators that he knew of the availability of the picnic area because of his familiarity with the Parkway, and that he pulled into the area at about 12:30 a.m. to check his car. Mrs. Marshall was asleep with her head on his lap. He stopped the car, got out, walked to the rear of the car, and observed that the right rear tire was about half-flat. As he

looked at the tire, he became aware that another vehicle, a dark-colored sedan, had pulled into the picnic area. The sedan parked with its lights on. Marshall then approached the passenger door of his car and asked Mrs. Marshall to open the trunk, the trunk release lever being accessible from the glove compartment on the passenger side. He stated that as he turned away from his wife, he was struck on the head.

Defendant told the officers that when he regained consciousness, he found his wife lying motionless on the front seat. Her back was bloody and there was a spent bullet casing on the seat. He got into the car and tried to hold her and revive her. When he realized she had been shot, he went onto the Parkway and attempted to flag cars down. He stopped two cars; the second car was the white station wagon whose five occupants were on the scene when the police arrived. He asked the occupants of the cars to summon the police, and he returned to his wife. After summoning the police, the occupants of the station wagon returned to the picnic area. At their suggestion, Marshall started his car and covered his wife with her jacket. At some point before the police arrived, Marshall realized that the $2,000 was missing from his pants pocket.

In the course of the interrogation conducted at Marshall's home a few hours after the homicide, defendant acknowledged that he and his wife had experienced marital problems and had begun seeing a marriage counselor. He attributed their problems to his accumulation of debt and to his wife's suspicions that he had been unfaithful. In response to questions, Marshall denied that he had been "cheating" on his wife and denied any involvement in her murder. At no time during the course of Marshall's interrogations did he inform the police officers that he had hired McKinnon to investigate his wife and had met with him and paid him money that evening at Harrah's.

An autopsy performed on the victim revealed two entry bullet wounds on the mid-portion of the victim's back. The wounds were "very close together," about three millimeters apart.

There were two corresponding exit wounds on the front of the chest, one near the collar bone and the other on the left breast. There was also an entry and exit wound, described as a superficial grazing wound, in the medial or inner area of the left forearm. There was also an entry wound without an exit wound in the left forearm, the bullet having been lodged in the rear of the forearm and protruding slightly through the skin. Based on the close proximity of the two entry wounds in the back, the pathologist who performed the autopsy expressed the opinion that two shots had been fired in succession and at very close range. The pathologist removed the bullet protruding from the left forearm during the autopsy. He identified it as a .45 caliber bullet, and indicated that it had entered the victim's back, passed through the chest, and lodged in the left forearm. The other bullet, following a similar course, had passed through the left arm. The pathologist determined that when the shooting occurred, the victim was lying down with her left arm under her body. The cause of death was "massive hemorrhage due to laceration * * * of the left lung and the main artery of the chest."

State Police Lieutenant Lorenzo Hillman, a ballistics expert, examined the bullet removed from the victim's arm, a second bullet found by police on the floor of Marshall's car, and the two discharged shells. He testified that the .45 caliber automatic metal-jacketed bullets and the .45 caliber automatic Remington Arms shells had been fired from the same weapon, an automatic or semi-automatic weapon with a heavy recoil.

George Hackman, a forensic chemist employed by the State Police, examined the right rear tire on defendant's car. He testified that he had been unable to inflate the tire because air leaked out through the slit in the sidewall. Other than the slit, he had found no defects in the tire or the rim. He testified that he had discovered no markings on the tire or rim indicating that the car had been driven while the tire was in a deflated or semi-deflated condition. He stated that in his opinion the slit had been made by a knife with a centerpoint that tapered

downward, both edges of which were sharpened. Hackman testified that he had cut out a portion of the tire around the slit in order to photograph the slit from the inner surface of the tire. On cross-examination Hackman acknowledged that he had examined two pocket-knives found in the possession of co-defendant Thompson when he was arrested, and that neither of those knives had been used to slash the tire.

A New Jersey Highway Authority maintenance worker found the victim's light-tan pocketbook on the afternoon of September 7th, near Exit 67 on the southbound exit ramp. There was a one-hundred-dollar bill in a compartment of the victim's wallet. Marshall informed Detective Petracca that about $500 was missing from the pocketbook.

State and County investigators began an extensive investigation of the murder. On the afternoon of September 7th, Investigator Daniel Mahoney of the Ocean County Prosecutor's Office stopped Sarann Kraushaar's car as she was driving northbound on the Garden State Parkway. Mahoney took Kraushaar to the prosecutor's office where he and Detective Petracca interviewed her in the presence of her attorney. Kraushaar acknowledged her relationship with Marshall, stating that it had begun in June 1983 and that they had seen each other regularly since then. She told the officers that Marshall knew that his wife suspected their relationship, because she had discovered records of toll calls to Pineland Regional High School where Kraushaar was employed. She disclosed that she and Marshall had made plans to live together, and referred to their pending effort to rent a house for that purpose. Kraushaar stated that Marshall had telephoned her that morning to inform her of Maria's death, that he had cried during their conversation, and had briefly recounted the events leading to the murder. As described by Kraushaar, Marshall's account to her of the homicide was consistent with his statements to the police.

According to Investigator Mahoney's report of the Kraushaar interrogation, she told police of a conversation with Marshall prior to Christmas in 1983 in which, while discussing his financial difficulties, Marshall had observed that "the insurance on Maria would take care of his debts" and that he "wished she wasn't around." The report indicates that Marshall had asked Kraushaar whether she knew "of anyone who could take care of it." Kraushaar had responded by identifying an individual who had been "in trouble with the law," but had stated that she "never wanted to be involved with him if he could do anything like that to his wife."

During the interview Kraushaar disclosed that she and Marshall shared a post-office box in Toms River, and that she had opened a safe-deposit box in a Toms River bank that contained silver ingots purchased by Marshall, worth a "couple of thousand dollars." She also acknowledged that before Mrs. Marshall's death, she and Marshall had planned to open a joint checking account. In response to a request by Mahoney, Kraushaar expressed her willingness to take a polygraph test.

Telephone toll records of calls to and from Marshall's office and residence established a connection between Marshall and several people from Shreveport, Louisiana. Investigator Murphy testified that he discovered a record of an incoming call to Marshall's office on September 6, 1984, from a pay phone at the Airport Motor Inn in Atlantic City. Murphy examined the guest registrations at the Inn and found one for September 6 and 7, 1984, in the name of James Davis, Riding Club Lane, Shreveport, Louisiana. The toll records also revealed a substantial number of telephone calls from defendant's office to the Caddo Hardware Store in Shreveport, and to the residence of Robert Cumber in Shreveport, as well as additional calls from Cumber's residence and from Caddo Hardware, Cumber's place of employment. Detective Petracca, together with Investigator Murphy and Lieutenant Churchill from the Ocean County Prosecutor's Office, traveled to Shreveport, Louisiana on or about September 20, 1984. They obtained a warrant to search

the residence of James Davis, the name on the guest registration at the Airport Motor Inn on September 6th and 7th. Davis lived on the outskirts of Shreveport. Petracca, Murphy, Churchill, and officers of the Caddo Parish Sheriff's Department were present when the warrant was executed. In a desk drawer in Davis's garage, Detective Petracca found payee copies of two Western Union money orders dated June 25, 1984, payable to James Davis, one for one-thousand dollars and the other for two-thousand dollars. In a drawer underneath a bathroom sink in Davis's residence, the officers found a piece of paper imprinted with the words "memo" and "Caddo Hardware Store." Lieutenant Churchill testified that the initials "RAC" and the date "Sept. 21, 1984" were written on the back of the memo by Robert Cumber, who identified the memo as one he had given to Billy Wayne McKinnon.

James Davis testified that on two occasions in June 1984, he had picked up money orders for McKinnon payable to James Davis. He stated that McKinnon had given him the memo found in his bathroom to assist him in filling out the form that had to be completed in order to pick up the money orders. Davis stated that in early June he picked up two money orders totalling $2500, and later that month he picked up two money orders totalling $3,000, the payee copies of these latter money orders having been found in his garage. At trial Davis identified his signatures on the payee copies of the money orders. Thomas McNeil, an employee of Porter Travel in Toms River, testified at trial that on June 13, 1984, a customer named Robert Marshall of Toms River purchased a $2,500 money order -- one draft for $2,000 and one for $500 -- payable to James Davis of Shreveport, Louisiana. He also testified that on June 25, 1984, a customer identified as James McAllister of Philadelphia, Pennsylvania -- stipulated by defendant's counsel to have been Marshall using a fictitious name -- purchased $3,000 in money orders payable to James Davis, one for $2,000 and one for $1,000.

On September 21, 1984, Detective Mahoney and Investigator Woodfield of the Ocean County Prosecutor's Office telephoned defendant and asked if they could speak to him briefly about recent developments in their investigation. Defendant agreed, and Mahoney and Woodfield proceeded to his home. According to Mahoney, when the discussion began, Marshall held a drink in his hand and his demeanor was pleasant and cooperative. Mahoney told him that certain names had come to their attention in the course of the investigation. He asked Marshall if he knew either a James or Jimmy Davis or Billy Wayne McKinnon from Shreveport, Louisiana. Mahoney testified that Marshall paled, became visibly upset, and his demeanor changed; Mahoney said he thought Marshall was going to spill his drink.

At a Rule 8 hearing conducted before Mahoney's direct testimony, the trial court ruled that Mahoney could not testify that Marshall had declined to respond to his question and had stated that his counsel had instructed him not to discuss the case out of his presence. In accordance with the court's ruling, Mahoney testified on direct that after he had asked Marshall about the names Davis and McKinnon, "the interview was terminated."

On September 23, Marshall and Kraushaar were at her apartment at Ortley Beach. Marshall received a message on Kraushaar's telephone answering machine from his son Robbie. The message was that an unidentified caller from Louisiana had telephoned Marshall, left a phone number, and asked that Marshall return the call. According to Kraushaar's trial testimony, Marshall expressed concern about whether he should return the call without consulting with counsel. She testified at trial that Marshall acknowledged having connections in Louisiana, stating that he had made bets on an "NBA [National Basketball Association] playoff game," and had sent "payments" -- something like $3,500 -- in connection with these bets. Kraushaar testified that she had never known Marshall to make substantial bets on sporting events. She stated that defendant came to her apartment unannounced on September

25, and apologized for deceiving her about the bets. She testified that she was "appalled by the deception" and terminated their relationship, denying on cross-examination that she had done so on the advice of her counsel.

On September 27, 1984, the management of the Best Western Motel in Lakewood, New Jersey, notified authorities that Robert Marshall had registered as a guest around 4:00 p.m. that afternoon. He had taken room number sixteen. Marshall and Kraushaar had often stayed at that motel during their relationship. Ocean County Prosecutor investigators staked out the motel on the stated belief that Marshall might be meeting a confederate there.

One investigator, Michael Mohel, checked into room seventeen, keeping the door open to observe any traffic in and out of Marshall's room. At 10:45 p.m., Mohel observed Marshall walk to a soda machine in the hallway, buy a Coca-Cola, and return to room sixteen. At 11:30 p.m., Mohel saw Marshall walk toward the front office of the motel. After Marshall returned at 11:40 p.m., Mohel went to the front office. After speaking to the motel clerk, Mohel looked into a mail tray located at the front desk and saw two letters inside. Mohel read the writing on the back of one of the envelopes, addressed to Joseph Dougherty, Esq.: "To be opened only in the event of my death." The investigator seized both envelopes; the one addressed to Dougherty appeared to have a cassette tape inside. Mohel then telephoned his superiors, and also telephoned the Lakewood Police Department to request assistance. He obtained a passkey from the clerk. At 12:30 a.m., Mohel called Marshall's room to "check on his welfare." The Clerk placed the call and Mohel listened in. Marshall answered the phone, but Mohel could not determine Marshall's condition. Marshall left the phone off the hook.

Uniformed police officers arrived at the motel shortly thereafter and entered Marshall's room with Mohel. They found Marshall asleep on the bed. They also found an open briefcase

with cassette tapes and recorders. Mohel woke Marshall and asked him if he had taken anything. Marshall said he had emptied fifty capsules of Restoril, a sleep-inducing agent, into a cup of Coke, but had fallen asleep and had not drunk the solution. Marshall said he had wanted to kill himself at the exact time his wife had been murdered, but had overslept. Marshall was then taken to Point Pleasant Hospital for observation.

The State obtained a warrant authorizing the opening of the envelopes. The envelope addressed to Joseph Dougherty, Esq., Marshall's brother-in-law, contained a copy of an agreement of sale for Marshall's office building, a one-page handwritten letter to Dougherty, and a cassette tape dictated by Marshall. After a pretrial suppression hearing, the trial court denied defendant's motion to suppress the contents of the envelopes. Defendant argued that the seizure was unlawful, the warrant improperly issued, and that the contents of the envelope addressed to Dougherty were protected by the attorney-client privilege. We consider elsewhere in this opinion defendant's challenge to the trial court's ruling. Infra at 62-73, 586 A.2d at 114-120.

During the State's case the cassette tape found in the envelope addressed to Dougherty was played to the jury. The tape discussed Marshall's relationship with Kraushaar, his intention to leave Maria "within a month," his "spiral" of debt that "accelerated to almost * * * two-hundred thousand dollar[s] * * * that I was determined to pay off, but just couldn't seem to climb out," and his reasons for hiring Billy Wayne McKinnon [who he thought was Jimmy Davis] to investigate Maria. On the tape Marshall acknowledged that he had sent McKinnon $5,500 in two installments and had given him an additional $800 at Harrah's the night of the homicide. Marshall instructed Dougherty on the tape with respect to how various business, financial, and personal matters should be handled. Marshall expressed his intention to take his own life because he

expected to be indicted and convicted for his wife's murder, even though he was innocent.

Robert Cumber was arrested in Louisiana on September 22, 1984, and was indicted by an Ocean County Grand Jury on September 26 for conspiracy to commit murder. McKinnon and James Davis were arrested in mid-October, and in a superseding indictment returned October 17, 1984, were charged together with Cumber with murder and conspiracy to commit murder. The charges against Davis were subsequently dismissed. Cumber and McKinnon were extradited to New Jersey.

McKinnon entered into a plea bargain with the State on December 15th. He testified at trial that he and his counsel had reviewed the State's evidence against him, referring specifically to the witness's statement describing his Cadillac leaving the picnic area onto the southbound Parkway lanes at the time of the homicide and to Marshall's cassette tape to his brother-in-law. McKinnon stated that he had entered into the agreement on the advice of counsel, in view of the "preponderance of evidence" against him. The agreement was introduced in evidence and read to the jury. McKinnon agreed to give a full statement identifying everyone involved in the murder of Maria Marshall, to waive immunity, and to testify before a grand jury and at the ensuing trial. In return, McKinnon would be permitted to plead guilty to conspiracy to commit murder, stipulated to be a non-Graves Act offense, the State would recommend a term not in excess of five years without parole ineligibility to be served for security purposes at the State Prison in Clinton, and the prosecutor's office would recommend that he be paroled at the earliest possible date. The State also agreed to relocate his family to a safe location for their protection, and to support their entry into the witness-protection program.

McKinnon gave his statement to Lieutenant Churchill and Detective Petracca on December 21, 1984. In early January 1985, an Ocean County Grand Jury returned the current indictment against Marshall, Thompson, Cumber, and McKinnon,

superseding the prior indictments. McKinnon's trial testimony was substantially consistent with his December 21st statement.

According to McKinnon, he was solicited in June 1984 by co-defendant Cumber, who knew that McKinnon had done investigative work in the past, to stop by Caddo Hardware at a pre-arranged date and time to speak by telephone to Marshall, described as an acquaintance of Cumber who needed an investigator. McKinnon spoke with Marshall, who told him he wanted someone to meet him in Atlantic City and make arrangements to conduct an investigation of his wife. McKinnon identified himself to Marshall as Jimmy Davis, and asked for an advance of $5,000 in "expense money" before traveling to Atlantic City. Marshall agreed to wire the money, and a few days later Cumber told McKinnon that a money order for $2,500 payable to Jimmy Davis had arrived. After picking up the money with Davis, McKinnon asked Cumber about the balance. Cumber spoke with Marshall who said that he would pay an additional $2,500 if McKinnon would meet him on June 18th at Harrah's Casino.

McKinnon testified that he flew to Atlantic City on June 17th, stopping first in Philadelphia. On arrival he asked a cab driver to drive him to the Islander Motel, where his wife had made a reservation because Harrah's had no rooms available. (After the homicide, an investigator from the Ocean County Prosecutor's Office located the cab driver, Tae Yeon. Yeon testified for the State at trial.) The cab driver was unable to find the Islander Motel, and eventually drove McKinnon to Harrah's where he was able to get a room, registering as Jimmy Davis.

Marshall arrived at McKinnon's room at noon the next day. McKinnon testified that he "patted him down" to check for weapons or recording devices. According to McKinnon, Marshall began talking about an investigation of his wife, but McKinnon interrupted and referred to "unfinished business." Marshall then handed McKinnon $2,500 in one-hundred-dollar bills, completing payment of the $5,000 advance that McKinnon

had requested. Marshall resumed his discussion of his wife's activities while McKinnon took notes, at one point in the conversation handing McKinnon photographs of his wife and of their residence.

McKinnon testified that after fifteen or twenty minutes Marshall told him that "what he really wanted to do was to get rid of his wife." McKinnon asked what he meant, and testified that Marshall replied, "I want her killed, done away with." Responding to McKinnon's questions, Marshall suggested that the murder could take place that evening at the Rams Head Inn where the Marshalls had dinner reservations, or after dinner at a place on Route 30 called the Porthole. McKinnon testified that he informed Marshall that he would not kill his wife, but could get someone else to do it.

They then negotiated a price for the homicide. According to McKinnon, after asking for $100,000 he agreed to accept $65,000. McKinnon had already received $5,000, and Marshall agreed to pay an additional $10,000 in advance and $50,000 out of the anticipated insurance proceeds. McKinnon stated that Marshall then left the room, and returned fifteen or twenty minutes later. He gave McKinnon $7,000 more in cash and agreed to wire an additional $3,000. McKinnon testified that before leaving his room, Marshall gave McKinnon his car's license plate number and told him that he and his wife would be at the Rams Head Inn between eight and nine o'clock that evening. McKinnon walked with Marshall to his Cadillac in Harrah's parking garage.

After having dinner that evening at Harrah's, using a "comp" guest check that Marshall had provided and signing Marshall's name to the check, McKinnon telephoned the same cab driver who had driven him to Harrah's the prior evening. McKinnon testified, as did the cab driver, that they drove to the Rams Head Inn and drove through the parking lot, which McKinnon described as crowded and well-lit. McKinnon stated

that after looking at those "places" -- apparently referring to Rams Head Inn and the Porthole -- he returned to Atlantic City.

McKinnon testified that Marshall called him at his room the next morning to ask "why the job wasn't done." Although McKinnon testified that he had no weapon with him, he told Marshall that he had only a shotgun and would have to return to Shreveport to get what he needed. McKinnon left Atlantic City on June 19th.

Shortly after McKinnon's return to Louisiana, Cumber informed him that Marshall had wired an additional $3,000 to Jimmy Davis. Davis picked up the money and gave it to McKinnon.

McKinnon testified that after his return from Atlantic City, Cumber relayed numerous messages to him, reporting that Marshall had telephoned and wanted to know when "Jimmy Davis" would return to New Jersey, that the job was not done, and that "Davis" had several thousand dollars of Marshall's money. Through Cumber, McKinnon sent word to Marshall that he would return to New Jersey in mid-July and would telephone Marshall when he arrived. McKinnon testified that he and a friend, Mike Gentry, drove to Atlantic City in McKinnon's Cadillac, which he described as "white or cream color with a brown or beige top." They stayed at the Seacomber Motel, Gentry signing the register for both men. The assistant manager of the Seacomber testified at trial and confirmed that Gentry was registered on July 19th, and that the registration card indicated that the room had two occupants. According to McKinnon, he telephoned Marshall at his office on the morning of July 19th from a phone booth at the Airport Motel, the public telephone nearest to the Seacomber. McKinnon asked if Marshall was on a "clear" phone. Marshall said he was not, and agreed to call McKinnon back at the phone booth. He did so, and told McKinnon that he would have dinner that evening at Harrah's with his wife. He agreed to meet McKinnon at eight o'clock behind Harrah's in the area near the marina. McKinnon

testified that he told Marshall when they met that the "job" was more involved than he had anticipated, and that he would need more money. Marshall said that he and his wife planned to see a show after dining and then play blackjack. McKinnon testified that Marshall agreed to meet him later that evening, and when they met, Marshall gave him $7,000 in chips.

According to McKinnon, Marshall expected that the homicide would occur that night, and described to McKinnon an all-night restaurant at which he would stop on the way home from Atlantic City. McKinnon testified that Marshall told him he would park behind the restaurant and leave the car, ostensibly to use the restaurant's bathroom. He said he would attempt to leave the car doors unlocked but that his wife would probably lock them after he left.

McKinnon and Gentry returned to the casino. At McKinnon's request Gentry cashed in the chips and gave McKinnon the money. McKinnon testified that he observed Maria Marshall sitting at a blackjack table in the casino, holding a single rose.

McKinnon testified that he drove Gentry back to the motel and then drove to the all-night restaurant Marshall had described. He had a pistol in his car. When he arrived at the restaurant, he observed several police cars parked in front. He waited thirty or forty minutes, but Marshall did not arrive. McKinnon returned to the motel. He and Gentry left New Jersey for Shreveport the next morning. McKinnon testified that on the trip back to Shreveport, he told Gentry that Marshall was willing to pay $50,000 to have his wife murdered. When Gentry testified, he denied that that conversation had occurred.

According to McKinnon, after returning to Louisiana he continued to receive numerous messages from Cumber indicating that Marshall was complaining that McKinnon had been paid but had not completed his work. McKinnon gave Cumber a telephone number for a pay phone at a service station near

his home, requesting Cumber to have Marshall call him there at a designated date and time. Marshall's toll records reflected calls to that pay phone. McKinnon testified that when he spoke with Marshall, he gave him a fictitious explanation about why the homicide had not been carried out on his most recent visit. Marshall pressed McKinnon, but rejected his suggestion that the homicide occur during the family's vacation in Michigan.

McKinnon next heard from Marshall through Cumber, who informed him that Marshall had said there would be an "extra fifteen" for McKinnon if he would do the "job" before Labor Day. McKinnon testified that he assumed Marshall meant fifteen thousand dollars, and told Cumber he would try to do it.

McKinnon also testified that he subsequently received a telephone call from co-defendant Larry Thompson asking McKinnon to meet with him that evening at a local McDonald's restaurant. According to McKinnon, Thompson said that "some people out of Dallas" had offered him $75,000 to kill McKinnon. McKinnon stated that he assumed the offer to Thompson was related to McKinnon's failure to fulfill his commitment to Marshall, which Thompson said he had heard about from Gentry. McKinnon testified that Thompson told him "these things can be done," suggesting that they go back to New Jersey "and look at it."

According to McKinnon, Thompson's wife drove Thompson to McKinnon's home on September 4th or 5th, and they left for New Jersey that evening. They stayed overnight at a Comfort Inn in Jackson, Mississippi, and drove to New Jersey the next morning. At trial the Comfort Inn's manager identified McKinnon's name on the guest registration. He stated that the Inn's records indicated that two people had occupied the room, based on the room rate, and that they had checked in late at night on September 4th or early on September 5th, checking out before noon on September 5th. He could not identify the room's other occupant.

McKinnon testified that they arrived in Atlantic City at about 6:30 a.m. on September 6th and checked into the Airport Motor Inn, McKinnon signing in under the name of James Davis. He telephoned Marshall at his office from a pay phone, and Marshall returned the call a few minutes later. According to McKinnon, Marshall told him that he would be going to Harrah's that night, but asked McKinnon to meet him at 11:30 that morning in the parking lot of the Roy Rogers service area just south of Toms River. McKinnon testified that he and Thompson drove to the service area, arriving about noon. Thompson remained in the car. McKinnon walked to the north end of the parking lot and found Marshall there. According to McKinnon, he and Marshall then drove southbound on the Parkway in Marshall's car to check out possible sites for the homicide. After McKinnon rejected two other locations, Marshall drove into the Oyster Creek Picnic Area and McKinnon said that it was satisfactory. They returned to the service area. McKinnon asked about the extra $15,000 and Marshall said it would be in his pocket that night. McKinnon then returned to his car where Thompson was waiting. They returned to Atlantic City, stopping briefly at the Oyster Creek picnic area on the way. McKinnon testified that Thompson suggested that he should wait in the woods for the Marshalls to arrive at the picnic area, in order to observe whether any other vehicles were parked there.

McKinnon testified that he met Marshall at about 9:30 that evening outside of Harrah's. At Marshall's request McKinnon returned to him the pictures of Maria and of their residence that Marshall had given him when they met in June. Marshall told McKinnon they would be leaving Harrah's around twelve or twelve-thirty. According to McKinnon, he and Thompson ate dinner, later stopping at a hardware store to buy a pair of rubber gloves. McKinnon stated that he had with him a .45 caliber colt pistol, Army special, from which he had eliminated any fingerprints by wiping it down.

McKinnon testified that he dropped Thompson off at the picnic area between twelve and twelve-thirty. Because it was cold, he gave Thompson one of his knit shirts to wear. McKinnon then drove southbound on the Parkway, exited, reentered the northbound lane, and waited for the Marshalls at the toll plaza. When they passed him, he delayed about two minutes and then drove northbound and entered the picnic area. He saw Marshall's car parked with the passenger door open and Marshall lying on the ground at the rear of the car. Thompson got into the car, put something on the floor, then got out and ran to the right rear tire of Marshall's car. McKinnon testified that he saw Thompson "squat down" and then heard air "hissing out" of the tire. Thompson reentered the car and they drove out of the picnic area onto the Parkway southbound lanes.

McKinnon testified that he left the picnic area slowly, pulling into the right-hand lane of the Parkway heading southbound. Christine Hilton testified at trial that as she and a friend passed the Oyster Creek Picnic Area at about 1:00 a.m., driving southbound on the Parkway, a white Cadillac with a "different color roof" came "flying out of the rest area." Ms. Hilton said she had to slow down her car to avoid being hit. She did not see how many people were in the Cadillac or whether they were male or female.

According to McKinnon, Thompson had Mrs. Marshall's pocketbook and cash that had been removed either from the pocketbook or from Marshall's pocket. On their way to Atlantic City, Thompson handed McKinnon three or four hundred dollars in cash. McKinnon testified that he told Thompson to throw the pocketbook out the window as they drove off the Parkway. He also stated that Thompson had thrown the murder weapon into a "large body of water" that they had passed on the Parkway, but was uncertain about where Thompson had disposed of the knife and rubber gloves.

McKinnon testified that he and Thompson spent the night at the Airport Motor Inn, leaving for Shreveport the next morning. McKinnon said that after returning to Shreveport, he went to see Cumber and informed him that "something bad" had occurred in New Jersey but "[w]e didn't have anything to do with it." He asked Cumber to try to get a paper and find out what went on. In that connection the State produced Cumber's stepfather, Michael Suswal, who testified that Cumber telephoned him on a Monday early in September and asked him to send Cumber newspapers from the three previous days. Suswal was unable to get the newspapers. Nina Storino, at whose party Marshall had initially met Cumber, testified that Cumber, an old family friend, telephoned her around September 11 to wish her a "happy birthday." In the course of the conversation she told Cumber about Maria Marshall's death.

McKinnon was subjected to extensive cross-examination, defense counsel emphasizing particularly the generous terms of his plea bargain, which would allow McKinnon to be paroled soon after the completion of the trial. Thompson's counsel pressed McKinnon to concede that the State would not have offered McKinnon such generous terms if he had been the "shooter," and McKinnon acknowledged that no evidence other than his testimony implicated Thompson in the murder. Thompson's counsel questioned McKinnon persistently about his explanation of Thompson's role in the homicide, implying that McKinnon himself had murdered Mrs. Marshall and had fabricated Thompson's involvement in order to negotiate a favorable plea bargain.

The State produced other witnesses and evidence that were consistent with McKinnon's account of the homicide. Telephone toll records established that calls had been made between Thompson's home and the residence of Mike Gentry shortly after Gentry's return from Atlantic City in July, supporting McKinnon's assumption that Thompson's initial contact with him was prompted by information he had received from Gentry. Toll records also confirmed that a call was placed to Marshall's

office on the morning of September 6th from a public telephone at the Airport Motor Inn. The State elicited testimony from a credit executive at Harrah's confirming that Harrah's had regularly extended credit to Marshall in the form of "markers." Marshall's account with Harrah's indicated that on June 18, 1984, the date McKinnon said he and Marshall first met, Marshall paid back a $4,000 marker at 1:00 p.m. and withdrew an additional $7,000 in markers between 2:30 and 3:00 p.m. On July 20th, the date on which McKinnon said he met with Marshall outside Harrah's in the evening, Marshall withdrew $3,000 in markers at about 9:30 p.m.

The State produced witnesses employed by various insurance companies that had policies insuring Mrs. Marshall. Policies in effect at the time of her death had been issued in June 1984 by Bankers Life and Casualty Company for $20,000; in April 1984 by Minnesota Mutual Life Insurance Company for $100,000; in June 1984 by the Knight Insurance Agency for $33,480 (tuition payment insurance); in February 1984 by Fireman's Fund Insurance Company for $100,000; on an undetermined date by Banner Life Insurance Company for $500,000; in February 1984 by Manhattan Life Insurance Company for $500,000; and on September 10, 1982, by Provident Mutual Life Insurance Company for $100,000. Employees of the Banner and Manhattan Life Insurance Companies testified that Marshall also had $500,000 policies on his life in effect with their companies, but that he paid the August 1984 premiums only on Mrs. Marshall's policies, permitting his own policies to lapse. Marshall reinstated both his policies retroactively, paying the August premiums subsequent to Mrs. Marshall's death.

The claims manager of First Colony Life Insurance Company testified that after Mrs. Marshall's death, they received an application for $100,000 insurance on her life in an envelope postmarked September 4, 1984, containing an unsigned check for the initial premium drawn on Marshall's bank account. The application was not processed.

Ruth Ann Scala, of Scala Insurance, testified that in August 1984 her agency was soliciting by mail applications for "mortgage" insurance, and on August 30th received a response from the Marshalls, indicating an interest in life insurance but not disability insurance. She spoke by telephone on September 4th with defendant, who said he wanted the cheapest available policy to cover his mortgage. Mrs. Scala testified that Marshall told her he would like to pick up the applications, stating that he was going on vacation at the end of the week and "wanted to get it taken care of before he left." She instructed her husband to deliver the applications to Marshall the next morning. Christopher Scala testified that when he delivered the applications to Marshall the next day, he proposed that the required physical examinations be done the following week. Marshall suggested instead that he use his own physician, but Scala indicated he would have to request approval from the issuing company. According to Scala's testimony, Marshall told him the physical examinations had to be done the next day -- September 6th -- because Marshall was going on vacation. Scala testified that when he returned to his office, he was able to make special arrangements for both Marshalls to be examined on September 6th at 11:00 a.m. Scala testified that at noon on September 6th, he picked up at Marshall's residence the completed applications for $130,000 in insurance on defendant and Mrs. Marshall, witnessing both their signatures. The medical examiner engaged by Scala testified that he performed the required physical examinations of the Marshalls between 10:00 and 11:00 a.m. on September 6th.

As noted above, supra at 38, 586 A.2d at 102, Sarann Kraushaar testified during the State's case. Unknown to defense counsel, prior to Kraushaar's second interrogation on September 27, 1984, the Ocean County Prosecutor had signed a letter agreeing neither to charge nor to prosecute Kraushaar in connection with the death of Maria Marshall, in return for her "truthful cooperation." The nondisclosure of the prosecutor's agreement concerning Kraushaar was the subject of a remand

hearing ordered by this Court after trial, and we address the issues raised at the remand hearing elsewhere in this opinion. Infra at 171-207, 586 A.2d at 175-196. Kraushaar's testimony at trial was essentially consistent with her statements to Investigator Mahoney and Detective Petracca on September 7, 1984. Supra at 35-36, 586 A.2d at 101. In her statement on September 7th, Kraushaar had recalled Marshall saying to her, "I wish she [Maria] wasn't around. Do you know anyone who would take care of it?" At trial, however, Kraushaar recalled Marshall's comment to have been, "I swear if there were a way that I could either do away or get rid of her I would." In her September 7th statement Kraushaar said that she and Marshall were both planning to leave their spouses that month and live together. In her trial testimony, Kraushaar testified that although Marshall planned to move out immediately, her plans were less certain and her intention was to move in with Marshall at some time in the future.

The State's proofs also included testimony from Detective Petracca, who retraced Marshall's route the night of the homicide to ascertain what other locations were available for defendant to have checked out his car trouble. Petracca observed that from Route 30 to the Parkway was about "a nine mile stretch," and that two service stations would have been open as well as the Absecon State Police Barracks. From the Parkway entrance to the Oyster Creek Picnic Area, a distance of thirty-one miles, Petracca identified as available facilities the Atlantic City service area, which was open all night; the Bass River State Police Barracks; the New Gretna toll plaza; the Stafford Forge Picnic Area at milepost seventy-one, which he described as "wide open," a big paved area that is visible from one side of the Parkway to the other; and the Barnegat toll plaza just south of the Oyster Creek Picnic Area. According to Petracca, there were also fourteen paved U-turns on the Parkway between Route 30 and the crime scene that a motorist could use to check for car trouble.

B. Defendant's Case

Defendant testified in his own behalf. In addition, he produced four character witnesses who testified to his general reputation for honesty and integrity. Charles Luker, the postman whose route included the Best Western Motel in Lakewood, and Paul Rackoczy, the Best Western manager, both testified that the mail depository box in use at the motel on September 27, 1984, was not the flat open box described by Investigator Mohel, but rather was a large mail depository with a slot at the top and a latch at the bottom that the postal carrier had to unhook to gain access to the mail.

Marshall also produced an insurance financing expert who testified that the rates for term insurance charged by Provident Mutual Insurance Company, Marshall's primary company, were substantially higher than those charged by other companies; that rates for term insurance had generally declined in the past few years; and that it was sound practice to replace expensive term insurance with less-expensive policies. John Zerrer, a former agency manager for Provident Mutual Insurance Company, testified that Marshall had been one of the company's most productive agents, selling between fifty- and eighty-million dollars of insurance during his career. He testified that Marshall was authorized to place insurance with companies other than Provident Mutual, and that most of Provident's agents placed term insurance with other companies because Provident's rates were too high. Zener stated that there had been a dramatic reduction in term-insurance rates the past few years, and therefore it had been a good time to buy term insurance.

Joseph Dougherty, Marshall's brother-in-law, testified as a defense witness primarily to establish that the envelope addressed to him and seized at the Best Western Motel was privileged because of his attorney-client relationship with Marshall. According to Dougherty, he had agreed to assist Marshall's

counsel in the conduct of his defense by performing legal research and writing memoranda of law and briefs.

All three of Marshall's sons testified. John and Christopher confirmed that when Marshall telephoned them on September 27th from the motel, he had sounded upset and depressed. Robbie Marshall testified that on September 6, 1984, he was awakened at about 11:30 a.m. and left his home at noon with both parents to have lunch at the Toms River Country Club, where they stayed for about an hour. His testimony conflicted with McKinnon's assertion that he and Marshall had met at about noon that day at a rest stop on the Garden State Parkway.

Marshall's testimony commenced with a description of his background and education, his marriage to Maria, their family history, and the development of his insurance business. He acknowledged his relationship with Sarann Kraushaar, indicating that it had been their intention to leave their respective spouses but not live together immediately, in order to avoid the perception that their relationship had begun while their marriages were intact. He related a conversation with Kraushaar in which she informed him that a lawyer had told her that Maria was suspicious of their relationship. He also testified that Maria had been unable to account for several thousand dollars in casino winnings that he had given to her. He acknowledged having met Robert Cumber at a party given by a neighbor in May 1984, and in the course of a conversation about gambling having mentioned to Cumber that he was interested in hiring an investigator to account for the missing funds. Marshall testified that he had also wanted to find out whether his wife had been having him followed and had known about his involvement with Kraushaar.

According to Marshall, he telephoned Cumber in June 1984, and Cumber agreed to help Marshall find an investigator, instructing him to call back a few days later at a designated time. He did so, and Cumber introduced him to McKinnon, who

identified himself on the telephone as Jimmy Davis. McKinnon offered to perform an investigation for Marshall for $2,500, which Marshall wired to him. Marshall acknowledged their meeting at Harrah's in June 1984, but denied paying McKinnon any money during their meeting. He admitted giving McKinnon a photograph of Maria and of their home, but insisted that McKinnon's assignment was limited to determining whether Maria was having Marshall followed and what she had done with the money that Marshall had given to her.

Marshall testified that after meeting McKinnon at Harrah's, he telephoned Cumber because McKinnon had not communicated with him. Cumber said that Davis [McKinnon] would come back to New Jersey if Marshall wired an additional $3,000, and that Marshall should use the name "James McAllister" when he sent the money. Marshall sent the $3,000, and continued to telephone Cumber when McKinnon did not arrive. Marshall also testified that he sent Cumber information about establishing an Individual Retirement Account [IRA] and opened a file in his name.

Marshall acknowledged that McKinnon returned to New Jersey in July and again met him at Harrah's, a meeting not mentioned on the tape recording Marshall made at the Best Western Motel on September 27th. According to Marshall, McKinnon told him on this occasion that the investigation had not been completed and that he needed more money. Marshall testified that he had refused to give him additional money, but apparently assumed that the investigation would eventually be completed.

Marshall testified about an incident that occurred after their July meeting, when an unknown person tried to open the door of the motel room that he was occupying with Sarann Kraushaar. That incident increased his concern that he was being followed and prompted him to call Cumber and offer Davis [McKinnon] an additional $1500 if he would complete the investigation by early September.

Marshall testified that after he returned in August from a family vacation in Michigan, he began looking for a house he could move into, focusing on a rental that was available in Beach Haven West. He also acknowledged that during that time period he purchased silver ingots and put them in a safe-deposit box in Sarann Kraushaar's name.

According to Marshall, McKinnon telephoned him from Atlantic City at about 10:00 a.m. on September 6, 1984, and asked that Marshall call him back from a pay phone. They arranged to meet outside Harrah's at about 9:30 p.m., McKinnon reminding Marshall to bring the extra $1,500, and Marshall insisting that McKinnon bring his report. When they met, McKinnon said he had not finished the report and Marshall refused to give him more money. Marshall testified that McKinnon then threatened to leave without completing the investigation, and Marshall gave him an additional $800 to induce him to stay. According to Marshall, he and Maria played blackjack that evening and won some money. After paying off a $4,000 marker, Marshall left the casino before midnight with about $2,000, and Mrs. Marshall had an additional $500 or $600. He testified that during the evening, he telephoned his son Christopher and learned that Christopher did not intend to come home from Lehigh University the next day. When Mrs. Marshall expressed her intention to go to see Christopher, Marshall telephoned a friend to cancel a tennis match, indicating that he planned to go to Lehigh with his wife.

Marshall's testimony about the drive from Harrah's to the picnic area and of the events prior to the murder was consistent with the statements he gave to police officers who interrogated him after the homicide. Supra at 31-33, 586 A.2d at 99-100. He conceded that he had responded falsely when the police had asked him if he was seeing another woman.

Marshall testified that when he checked into the Best Western Motel on September 27th, he did so intending to take his life. He made farewell tapes to each of his sons, which were

played for the jury. Marshall stated that after being taken from the motel to Point Pleasant Hospital, he was admitted to a psychiatric-care hospital in Philadelphia where he remained for twelve days.

Marshall also testified about an extensive telephone conversation on September 26th with Russel Kolins, an investigator hired by his counsel, who had gone to Louisiana on Marshall's behalf. According to Marshall, he learned during this conversation that Cumber had been arrested and that the man he had known as Jimmy Davis was named Billy Wayne McKinnon. Marshall stated that he also discussed with Kolins the costs he was incurring in Louisiana, expressing concern that Kolins had stayed there too long. On cross-examination the prosecutor questioned Marshall about that conversation, suggesting that Kolins had read to him a statement prepared by McKinnon for his counsel that purported to explain McKinnon's activities in New Jersey without implicating him in the murder of Mrs. Marshall. The prosecutor, observing that both McKinnon's prepared statement and Marshall's tape to his brother-in-law omitted any reference to the July meeting at Harrah's, questioned Marshall on whether that omission from his tape resulted from his conversation with Kolins. Marshall denied that Kolins had read McKinnon's statement to him, and responded that the omission of the July meeting was inadvertent.

Marshall testified that in October 1983, he had prepared a capital-needs analysis for himself and Mrs. Marshall to determine the amount of life insurance that should be in force on each of them in order that in the event either was to die, the survivor would be provided with an adequate income. He estimated that because he then had in force about $500,000 in insurance and had other assets and benefits available for Mrs. Marshall, he required an additional $500,000 in insurance. He estimated that Mrs. Marshall should have in force approximately one-million dollars in insurance, based on Marshall's assumption that his income would be reduced because of added responsibilities he would assume in the event of her death. He also

testified that rates for term insurance were quite low in 1983 and 1984. Referring specifically to the Provident Mutual Insurance Company policy issued September 10, 1982, Marshall observed that that policy by its terms would have been "incontestable" if Mrs. Marshall had died after September 10, 1984, three days after her murder.

Russel Kolins, the investigator hired by Marshall's counsel, also testified in Marshall's behalf. According to Kolins, he flew to Louisiana on September 26th and met with McKinnon's lawyer, Henri Loridans, his son Maurice Loridans, and Henri's wife, Sandra, who was McKinnon's sister. He also met with McKinnon, who he initially thought was Jimmy Davis. Kolins testified that after his telephone conversation with Marshall on September 26th, Maurice Loridans, acting on Sandra's instructions, gave Kolins a copy of a statement McKinnon had prepared for his lawyers, the accuracy of which he repudiated during his trial testimony. Kolins denied having discussed the content of the statement with Marshall or Marshall's counsel on September 26th. After Kolins returned to New Jersey, he had a conference call with McKinnon and his sister, who expressed concern about comments Kolins had made to the media relating to McKinnon's prepared statement. They cautioned Kolins about mentioning a woman named Peggy who, according to McKinnon's statement, accompanied him to New Jersey in September. They asked Kolins to return or destroy McKinnon's statement; according to Kolins, he did neither.

Kolins also was permitted to testify, over the State's objection, to a conversation he had with McKinnon prior to his extradition hearing, in which McKinnon denied coming to New Jersey in September with Larry Thompson but apparently acknowledged traveling to New Jersey with a woman named Peggy or Sherry. According to Kolins, McKinnon never told him that he came to New Jersey for the purpose of murdering Maria Marshall.

C. Co-Defendant Thompson's Case

Angela Gallien, from Natchitoces, Louisiana, a dental assistant for Dr. Larry Burke, testified that co-defendant Thompson's son Brian had an appointment with Dr. Burke at 4:45 p.m. on September 6, 1984. She recalled that when Brian came to the office, he was accompanied by a male adult, but she could not identify Thompson as the person who was with Brian. She testified, however, that she prepared a receipt reflecting payment for Brian's dental work, and the receipt bore Larry Thompson's name. She testified that her practice was to prepare a receipt in the name of the person responsible for payment. On cross-examination, she acknowledged having received a telephone call from co-defendant Thompson's wife, Ulanda, informing her that an investigator was coming to see her, but denied that Ulanda had asked her to say that Thompson was in the office on September 6th. She conceded that when interrogated by investigators from the prosecutor's office, she had expressed uncertainty whether a man, woman, or child had paid for Brian Thompson's dental work.

Garland Giddings, a social friend of Thompson who lived about ten miles from Thompson's home in Fairview-Alpha, Louisiana, testified that he and Thompson talked regularly on the telephone and that he recognizes Thompson's voice. He stated that he had telephoned Thompson at his home on Thursday, September 6th, between 8:00 and 10:00 p.m., to solicit his help the next day in "raising" a boat that Giddings had sunk the prior weekend. Giddings testified that he had spoken with Thompson, but that Thompson was unable to accompany him the next day. According to Giddings, he recalled the date of the telephone call because the next day -- on which he was to retrieve the boat -- was his wife's birthday.

Steven Thompson, co-defendant's brother, testified that he lived in Shreveport in a house owned by Larry Thompson, and that Thompson and his wife had stopped by to see him there between 10:30 and 11:00 a.m. on Saturday, September 8th.

Brian Thompson, co-defendant Thompson's eighteen-year-old son, testified that his father was at home from September 6th through September 9th. He stated that his father had accompanied him to the dentist on the afternoon of September 6th and had spent the evening at home. Brian recalled that his father was in bed when he left for school the next morning, and testified that they ate dinner together that evening, September 7th. Brian testified that his father was not at home Saturday morning, but returned home later in the day and ate dinner at home. On Sunday, September 9th, his father was at home to celebrate Brian's sister's birthday.

Lynette Giddings, Garland Giddings' wife, testified that she overheard her husband speaking to Thompson on the telephone during the evening of September 6th. She also recalled having seen Thompson and his wife drive past her in Thompson's truck at about 4:30 p.m. on September 8th.

Michael Gentry also testified as a witness for Thompson. Although confirming that he had accompanied McKinnon to Atlantic City in July 1984, Gentry testified that he had never met or seen Marshall or his wife, and that McKinnon had never told him that Marshall wanted his wife murdered. Conceding that he had worked with Thompson and had spoken with him regularly by telephone, Gentry denied having told Thompson that McKinnon had been hired to murder Maria Marshall.

Thompson testified in his own behalf, denying any involvement in the death of Maria Marshall. Thompson maintained that he was at home in Louisiana when the murder occurred. He recalled taking his son to the dentist on September 6th and paying the receptionist with money his wife had given him. Thompson confirmed that he and Garland Giddings had spoken on the telephone that evening. According to Thompson, he spent Friday, September 7th, doing work at home, and had dinner at home that evening. He testified that he had driven to Shreveport on Saturday, visited his brother Steven, bought a part for his truck and a birthday cake for his daughter, and

returned home that evening. He denied having had any conversations with McKinnon about people in Dallas putting out a "contract" on him, and denied traveling to Atlantic City with McKinnon. He conceded that he knew McKinnon, and had purchased a car from him on September 10, 1984. He acknowledged that his wife had been staying at Marshall's home during the trial, explaining that she had received permission from Marshall's sister and had asked about staying there to save the expense of a motel. Mrs. Thompson also testified, and her testimony about Thompson's activities from September 6th to September 9th was substantially the same as his.

D. The Verdict

After several hours' deliberation, the jury found Marshall guilty of conspiracy to commit murder, and of purposely or knowingly causing the death of Maria Marshall as an accomplice by payment or promise of payment of a sum of money. The jury acquitted Larry Thompson of all charges.

E. The Sentencing Proceeding

At the inception of the sentencing phase of the case, defense counsel stated that it was defendant's decision, with which he concurred, to call no witnesses during the sentencing proceeding. The State offered no additional evidence, relying on the record that had been established during the guilt phase of the case.

The State argued that the proofs established the existence of one aggravating factor, that defendant had procured the commission of the murder by payment or promise of payment of money. N.J.S.A. 2C:11-3c(4)e. Both sides stipulated the existence of one mitigating factor, that defendant had no history of prior criminal activity. N.J.S.A. 2C:11-3c(5)f. Defense counsel argued that evidence in the record concerning Marshall's business, charitable, and community activities was sufficient to establish an additional mitigating factor, "[a]ny other factor

* * * relevant to the defendant's character or record or to the circumstances of the offense." N.J.S.A. 2C:11-3c(5)h.

The jury unanimously found beyond a reasonable doubt the existence of the aggravating factor, and also found evidence of the existence of both mitigating factors. It concluded unanimously beyond a reasonable doubt that the aggravating factor outweighed the mitigating factors. The trial court sentenced Marshall to death.

II.

Pretrial Motions

A. Letters Seized in Best Western Mailbox

Among the most sharply-contested issues in this case, both at trial and at a pretrial-suppression motion, was the State's seizure and subsequent use of the cassette tape made by defendant in the course of his aborted suicide attempt at the Best Western Motel on September 27, 1984. The tape, enclosed in an envelope addressed to defendant's brother-in-law and opened after the police had obtained a search warrant, contained an acknowledgment by Marshall that he had hired McKinnon to investigate his wife, and had paid him $6,300, $800 of which was paid at Harrah's on the night of the homicide. The State played the tape for McKinnon to induce him to enter into a plea agreement. The State also offered the tape in evidence during the trial, and it was played for the jury. Defendant challenges the trial court's pretrial rulings denying his motion to suppress the tape on the grounds that the seizure of the envelope was unlawful, the search warrant lacked probable cause, and the tape's content was protected by the attorney-client privilege.

The trial court conducted a pretrial hearing to determine the admissibility in evidence of the contents of the envelope addressed to Dougherty that consisted of a three-page contract of

sale, a one-page letter written on motel stationery, and the cassette tape dictated by defendant.

At the hearing, Zillah Hahn, the front-desk manager at the Best Western, testified that she checked defendant into room 16 at 4:00 p.m. on September 27th. She notified the prosecutor's office of defendant's presence about ten minutes later. Chief Palmer Herbert of the Ocean County Prosecutor's Office and State Police Lieutenant George Justin arrived at the hotel between 4:00 and 4:30 p.m., received a passkey for room 17, and began their surveillance of defendant.

Investigator Michael Mohel arrived at the hotel at approximately 9:15 p.m. Mohel observed defendant leave room 16 at 10:45 p.m. and buy a soda. At 11:30 p.m., defendant again left his room and proceeded to the front-desk area. Mohel followed defendant and recounted the sequence of events that transpired:

Q. What happened thereafter? Where did you go or what did you do after you saw Marshall walking towards the front desk?

A. I followed him to the area of the front desk I believe unobserved by Mr. Marshall, at which time I observed him at the desk area and then I saw him leave that area and proceed back to the room at which time I then went to the front desk.

Q. Tell the Judge what happened at the front desk.

A. At the front desk I was advised by [the night-desk manager] that Mr. Marshall had deposited two letters in a box located on the desk.

Q. Now, did you go over and examine that box on the desk?

A. I looked into the box and I observed a white envelope on top of another envelope and on the envelope itself had the terminology, "To be opened in the event of my death."

Q. Could you see that -- those words written as you looked into that box or did you have to pick up the envelopes and actually physically hold them?

A. No. I observed it when I looked into the box.

The two envelopes were white, letter-sized, business envelopes. Each envelope was sealed and contained first-class postage. One letter was addressed to defendant's secretary*fn1 and the

other, containing the legend described by Mohel, to the Pennsylvania business address of "Joseph Dougherty, Esq.," defendant's brother-in-law.

The investigator took the envelopes back to room 17 and notified his superiors. He explained that he retrieved the envelopes in order "[t]o justify [his] future actions that [he] would have to go into [defendant's] room to check on [defendant's] well-being." Mohel did not open the envelopes; instead, he asked the night manager to phone room 16 and check on defendant's condition. The call was made at 12:30 a.m. and Mohel listened in on the conversation. Subsequent efforts to contact defendant by phone failed because defendant had taken his phone off the hook. Mohel then contacted the Lakewood Police Department, which alerted the first-aid squad.

At 12:55 a.m., Mohel, Investigator Daniel Mahoney, Investigator John Kurilla, and a Lakewood police officer entered the defendant's room with a passkey. Medical personnel arrived at 1:10 a.m. Mohel and Mahoney woke up defendant, who volunteered that a cup of Coke at his bedside contained a large quantity of Restoril, a sleep-inducing agent. He stated that he had intended to kill himself but had fallen asleep and had not drunk any of the solution. Defendant left the room under his own power and was taken to a local hospital for observation, where he refused treatment. We address defendant's motion to suppress in the context of those events.

1. Seizure of the Envelope

We begin our analysis by examining the testimony concerning the type of depository into which defendant placed the two envelopes on the night of September 27th. Hahn, the front-desk manager, described the depository used by the motel during September 1984 as "an open box that sat up on the

counter" at the front desk. The word "mail" appeared on two sides of the box. Mohel described the depository in similar terms. Investigator Mahoney, who arrived at the hotel at about 12:30 a.m., testified that the depository was a "rectangular * * * open tray, without any lid on it and the kind that would be like for out mail in an office." Zahn testified that the motel later replaced the open box with a container that had a slot on top, and a latch at the bottom that the postal carrier had to unhook in order to retrieve the mail.

Investigators Mohel and Murphy testified that in August 1985, they went to the Best Western Motel to attempt to locate the open mail depository that Mohel testified was in use in September 1984. Based on Mohel's description, the owner of the hotel located the mail depository in a shed. Both that mail depository and the replacement container described by Zilla Hahn were introduced in evidence at the suppression hearing.

The defense presented evidence to support its claim that defendant had placed the two envelopes in the hotel's present mailbox, not in an open tray. Paul Rokoczy, the night manager at the hotel on September 27th, stated that the current mailbox is "the only mailbox that we have had or have to this date. That is the box." During cross-examination, Rokoczy acknowledged that he may have told Investigator Murphy that Marshall had placed the two envelopes on top of the mail box then in use, and Murphy testified that Rokoczy told him that one envelope would not fit in the slot. In addition, the mailman who had delivered the mail to the hotel since February 1978 testified that he had never seen the mail tray and that the present mailbox was the only one he had ever used. Defendant also identified the hotel's present mailbox as the one he used on September 27th, and testified that the cassette tape was not enclosed in a container.

On rebuttal, Lieutenant Churchill testified that neither the envelope addressed to Dougherty nor the cassette would fit into the mail slot in the hotel's current mailbox.

The trial court, acknowledging the conflicting testimony, noted that as a matter of common experience people "wouldn't really be normally paying too much attention to what type of mail receptacle was present." The court also observed that both receptacles might have been in use at the same time. The court was persuaded, however, that the production of the mail tray by the hotel's owner, based on Mohel's description of the tray in August 1985, suggested strongly that the tray had been in use on the night the envelopes were seized, and made that factual finding. Based on our own careful scrutiny of the record, we sustain the trial court's determination, which is amply supported by the evidence adduced at the suppression hearing. See State v. Johnson, 42 N.J. 146, 161, 199 A.2d 809 (1964). In the context of that factual finding, we proceed to consider defendant's fourth-amendment claims deriving from the seizure of the envelope containing the tape and the search of its contents.

We first consider whether defendant had a protected constitutional interest in the words on the envelope observed by Mohel. Investigator Mohel testified that he proceeded to the front desk after defendant had left the lobby. The night-desk manager informed Mohel that defendant had deposited two envelopes in the box. Mohel then "looked into the box and * * * observed a white envelope on top of another envelope and on the envelope itself had the terminology, 'To be opened in the event of my death.'" He stated that he could see the words without picking up the envelope.

One seeking to invoke the protection of the fourth amendment must establish that a reasonable or legitimate expectation of privacy was invaded by government action. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220, 226 (1979). The resolution of that issue depends on whether the person "exhibited an actual (subjective) expectation of privacy," Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 588 (1967) (Harlan, J., concurring),

and whether the expectation of privacy is "one that society is prepared to recognize as 'reasonable.'" Ibid.

We conclude that defendant did not manifest an actual or subjective expectation of privacy in the envelope, in that he exposed the mailing address and the words "To be opened in the event of my death." Those words were apparently visible to anyone observing the envelope. It is well settled that "[w]hat a person knowingly exposes to the public * * * is not a subject of Fourth Amendment protection." Katz, supra, 389 U.S. at 351, 88 S. Ct. at 511, 19 L. Ed. 2d at 582. Thus, we find no fourth-amendment violation when Investigator Mohel read the words on the outside of the envelope. See United States v. Choate, 576 F.2d 165 (9th Cir.1978) (finding that sender waived fourth-amendment privacy claim in names and addresses on outside of envelope).

We next consider whether Mohel could lawfully retrieve the envelopes from the depository. We are satisfied that although defendant had a reasonable expectation of privacy only in the contents of the envelope, see, e.g., United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); United States v. Van Leeuwen, 397 U.S. 249, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970); Ex parte Jackson, 96 U.S. 727, 24 L. Ed. 877 (1878); State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990), the removal of the envelopes nevertheless constituted a "seizure" for fourth-amendment purposes. "A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, supra, 466 U.S. at 113, 104 S. Ct. at 1656, 80 L. Ed. 2d at 94 (footnote omitted).

The fourth amendment prohibits not all searches and seizures but only those that are deemed unreasonable. State v. Campbell, 53 N.J. 230, 233, 250 A.2d 1 (1969). Ordinarily, a seizure of property is unreasonable unless it is accomplished pursuant to a warrant issued on probable cause and particularly describing the items to be seized. United States v. Place,

462 U.S. 696, 701, 103 S. Ct. 2637, 2641, 77 L. Ed. 2d 110, 117 (1983) (citation omitted). However, not all warrantless seizures are unlawful:

Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.

[ Ibid. (citations omitted).]

See also United States v. Jacobsen, supra, 466 U.S. at 114, 104 S. Ct. at 1657, 80 L. Ed. 2d at 94-95 ("[e]ven when government agents may lawfully seize [a sealed] package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package"); United States v. Van Leeuwen, supra, 397 U.S. 249, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (upholding seizure of envelopes based on suspicion of illegal content until investigation completed and search warrant obtained).

Thus, the validity of the seizure depends largely on whether the State's investigator, at the time he seized the letters, had a reasonable basis for believing that the envelopes contained evidence pertaining to the murder. At the time of the seizure, the focus of the investigation had narrowed, and defendant knew that he was a suspect. The police were aware of defendant's affair with Kraushaar, his purchase of substantial insurance on Mrs. Marshall's life, and that defendant had mailed money orders to Jimmy Davis in Shreveport. Investigators had also discovered that defendant had communicated with Cumber and had spoken with McKinnon about an "investigation." Although all of the details about the extent of defendant's involvement with McKinnon and Cumber had not been uncovered, there was sufficient information available to the authorities to justify their surveillance of defendant at the Best Western Motel. The conclusion is inescapable that when Investigator Mohel read the possible suicide message written on the outside of the envelope, in the context of the accumulation of

evidence incriminating defendant in his wife's murder, there were reasonable grounds for him to believe that the envelope could have contained evidence pertaining to the murder.

We note that in contrast to the seizure of envelopes upheld in Van Leeuwen, supra, where the police held the envelopes for twenty-nine hours before a search warrant issued, in this case five days elapsed between the seizure on September 27th and the issuance of the warrant on October 2nd. Under the circumstances, however, which included an intervening weekend and the necessity for preparing an extensive affidavit in support of the warrant, we cannot conclude that the five-day delay was unreasonably intrusive. That determination draws support from the fact that Marshall's suicide attempt was aborted and the envelope addressed to his brother-in-law was to be opened only in the event of his death. Accordingly, we hold that the seizure of the envelope did not violate defendant's fourth-amendment rights.

2. Attorney-Client Privilege Issue

Defendant also claims that the mere seizure of the envelope violated the attorney-client privilege, see Evidence Rule 26, between himself and his brother-in-law Joseph Dougherty, a Pennsylvania attorney. At the suppression hearing, Dougherty testified that within a day or two after the homicide defendant inquired whether Dougherty could represent him in "a potential criminal matter." Dougherty told defendant that he could not do so. Dougherty also testified that in a conversation on September 12, 1984, he recommended that defendant consider signing a power of attorney authorizing his son John Marshall to sign checks and real-estate agreements, referring specifically to the possible sale of defendant's office building in Toms River. Dougherty testified that he prepared the power of attorney on September 21st, and that defendant signed it in Dougherty's office on September 25th when defendant stopped to see Dougherty to discuss insurance for his law firm. Dougherty

also testified that on September 23, 1984, he agreed that his law firm would perform legal research, if requested to do so by the attorney defendant retained to represent him in connection with the homicide investigation.

To whatever extent an attorney-client relationship between defendant and Dougherty may have existed at the time of the seizure, we are unpersuaded that the seizure of the envelope violated the attorney-client privilege. Dougherty's role as a Pennsylvania attorney in defendant's New Jersey trial was limited in scope. Neither Dougherty nor defendant's trial counsel had informed the State that Dougherty would participate in Marshall's defense. The investigator who seized the envelope knew that Dougherty was defendant's brother-in-law, but was unaware that he represented defendant in any capacity relating to the homicide investigation. Although Mohel may have been aware that the letter was addressed to an attorney, he was not obligated before seizing the envelope to determine whether the letter was a protected attorney-client communication within the context of the Maria Marshall homicide investigation.

3. Validity of the Search Warrant

On October 2, 1984, the State obtained a warrant to search the envelope addressed to Dougherty. To establish probable cause, the State presented a thirteen-page affidavit, which alleged that that envelope contained "writings, notations, tapes and any and all other items of evidence which will establish the person or persons responsible for the homicide death of Maria Marshall." Defendant challenges the issuance of the warrant on several grounds.

First, defendant claims that the court lacked the authority to issue the search warrant. He relies on a United States Postal Service regulation, Domestic Mail Manual § 115.61 (1988), which provides, in part, that "[n]o employee shall permit the

execution of a search warrant issued by a state court and served by a state officer." Id. at 115.61(b).

We note that the regulation on which defendant relies applies only to letters within the custody of the postal authorities at the time of the seizure. However, even if the envelope had been in the custody of the Postal Service, the federal statute governing the classification and inspection of mail expressly permits the opening of letters of domestic origin "under authority of a search warrant issued by law * * *." 39 U.S.C. 3623(d). The statute does not limit search warrants to those issued by federal judges or magistrates. See State v. McCully, 64 Haw. 407, 642 P. 2d 933 (1982). Nor does defendant contend that a federal magistrate would have reached a different conclusion on probable cause had he or she been presented with the identical affidavit. Thus, we conclude that the regulation on which defendant relies does not invalidate the examination of the contents of defendant's envelope pursuant to a lawfully-issued search warrant.

Defendant also contends that the search is invalid because the warrant was not based on probable cause. According to defendant, the affidavit established nothing more "than a mere hunch or suspicion that the envelope would contain any information leading to the identity of the person(s) responsible for the crime."

The fourth amendment prohibits searches that are unreasonable. State v. Bruzzese, 94 N.J. 210, 217, 463 A.2d 320 (1983). A search is reasonable if the State obtains a search warrant from a neutral magistrate on a showing of probable cause. The affidavit in question set forth detailed information strongly suggesting that defendant may have been involved in the murder of his wife. The affidavit disclosed that defendant had been having marital and financial difficulties and was involved in a long-standing relationship with Sarann Kraushaar. It stated that defendant had asked Kraushaar if she "knew of anyone who would take care of his wife." The affidavit described

defendant's attempts to purchase additional life insurance for Mrs. Marshall the day before the murder. Finally, the document disclosed that Marshall, through Cumber, had arranged to hire McKinnon, and revealed that defendant had sent at least one money order to Shreveport payable to James Davis.

We accord substantial deference to the discretionary determination resulting in the issuance of the warrant. State v. Kasabucki, 52 N.J. 110, 116, 244 A.2d 101 (1968). Based on the totality of the circumstances, we are satisfied that there was probable cause to believe that the envelope contained evidence that would help identify the murderer. See State v. Novembrino, 105 N.J. 95, 122, 519 A.2d 820 (1987).

Defendant also contends that the warrant is invalid because Investigator Mahoney misrepresented material facts in the affidavit. Defendant maintains that the investigator failed to mention in the body of the affidavit Dougherty's status as an attorney. However, we find, as the trial court did, that the investigator disclosed Dougherty's status as an attorney on the first page of the affidavit, although the affidavit is silent about any attorney-client relationship between Dougherty and Marshall. We also concur in the court's conclusion that defendant failed to make a "substantial preliminary showing" that the investigator included any misleading or false statements in the affidavit, either intentionally or with reckless disregard for the truth. See Franks v. Delaware, 438 U.S. 154, 169-70, 98 S. Ct. 2674, 2683-84, 57 L. Ed. 2d 667, 681 (1978). We are satisfied that the court properly concluded that defendant was not entitled to a hearing to determine the veracity of the statements in the affidavit.

Nor would we disturb the issuance of the warrant on the basis of the attenuated attorney-client relationship between Dougherty and Marshall. Nothing in the record suggests that either of the investigators or the judge who issued the warrant had any basis on which to assume that defendant, who had already retained Glenn Zeitz as his counsel, also had engaged

his brother-in-law to do research in connection with his defense. To the extent that an attorney-client relationship existed, it was undisclosed, and hence cannot constitute a ground for attacking an otherwise-valid search warrant.

We are also in accord with the trial court's determination that the tape found in the envelope addressed to Dougherty could be played at trial. The court found that the content of the tape was "unrelated to the services to be performed by Dougherty in connection with the criminal investigation of defendant." Although acknowledging that the tape included references to legal matters requiring attention in the event of defendant's death, the trial court concluded, based on their "personal relationship" and the "content of the communication," that "defendant was attempting to memorialize his thoughts, suggestions and wishes to Dougherty primarily as a trusted friend." The record fully supports the trial court's determination that defendant did not sustain the burden of proving the existence of a privileged attorney-client relationship, and that defendant was communicating with Dougherty primarily as a trusted friend and relative, not as an attorney. See McCormick, Evidence § 88 at 209-10 (E. Cleary 3d ed. 1984); cf. United States v. Tedder, 801 F.2d 1437, 1442-43 (4th Cir.1986) (record sustained trial court's finding that defendant's statement to attorney related to co-conspirator was intended as communication to personally-involved friend and not to legal advisor). Adhering to that view, the trial court properly permitted the State to play the cassette tape found in the envelope during the presentation of its case.

B. Venue

On April 25, 1985, an Ocean County trial court judge conducted a hearing on defendant's motion seeking a change of venue. See Rule 3:14-2. After reviewing voluminous newspaper accounts of the murder in both local and national newspapers, the

court concluded that the Marshall family's prominence in the Toms River area threatened defendant's right to a fair trial:

The pretrial publicity in this case has been extensive. The defendant has submitted a videotape of a news segment, broadcast by a Philadelphia TV station, as well as voluminous clippings from the Asbury Park Press, Atlantic Observer, Philadelphia Inquirer and Philadelphia Daily News, as well as a transcript of the broadcast proceedings from the local television Channel 8, local television station Channel 8.

The question is, what about his right to a fair and impartial jury? And there's another factor for the Court to consider besides the publicity, because the publicity is all over. It may not be up in Warren County or Hunterdon County, but it's all around. It's in Burlington County, Atlantic City, wherever the Philadelphia Inquirer is sold. It's in those counties below Camden, Salem, Gloucester, Cumberland and Cape May, or wherever the Philadelphia News is sold or where the Atlantic Press is sold or where the Asbury Park Press is sold or where the Ocean County Observer is sold.

There's another factor which the Court is considering besides all this publicity, because that publicity is going to be there. There is, in this Court's opinion, an inordinate interest in this case on the part of many people in Ocean County, people who either know Mr. Marshall and his family or others who were involved in the case, or people who know people who know the Marshall family. And I don't think that inordinate interest is going to disappear. It's always there. The case is being talked about; it's being thought about constantly. And the defendant, his family, and others in the case, have enjoyed a wide acquaintance, not just in the Toms River area, but in the Ocean County area.

This Court is of the opinion that for the reasons stated, the defendant cannot receive a fair and impartial trial here in the courthouse in Toms River. There is the pretrial publicity, but, of course, that's in other counties, too. There's the wide acquaintance of persons in the case -- defendant, family, friends in the community, and outside the Toms River community, in the general Ocean County community. And as I said before, there is inordinate and continuing interest of the people of this county in this case, and I think that's different in other counties, because in other counties, presumably the Marshalls are not known, none of the other people in the case are known. Three of the four defendants come from outside the state, so they're not known. And I think it's in his interest to have the case transferred.

(Emphasis added.)

Accordingly, the Court found that there was "a realistic likelihood of prejudice from pretrial publicity," State v. Williams, 93 N.J. 39, 67 n. 13,

459 A.2d 641 (1983), and ordered that the case be tried in Atlantic County.

Defendant does not contest that decision. Instead, he argues for the first time on appeal that Atlantic County was not the proper venue for his trial because there had been as much publicity about the homicide in Atlantic County as there had been in Ocean County. Specifically, defendant claims that in transferring the matter to Atlantic County, the court disregarded the fact that a substantial portion of the publicity that made Ocean County inappropriate for trial had also circulated in Atlantic County. To support that argument, defendant submitted a post-trial motion, which we granted, that sought to supplement the trial record with the following:

1. Seventy-one pages of newspaper coverage of the trial, as reported by the Atlantic City Press;

2. A four-hundred-plus page report detailing the Atlantic City circulation of the Atlantic City Press, the Philadelphia Daily News, and the Philadelphia Inquirer from 1984 to 1986;

3. An Asbury Park Press article dated January 26, 1986, describing the similarity between defendant's trial and a trial in Japan.

The sixth amendment of the United States Constitution and article I, paragraph 10 of the New Jersey Constitution guarantee a criminal defendant "the right * * * to trial by an impartial jury." An impartial jury goes to the very essence of a fair trial. State v. Williams, supra, 93 N.J. at 60, 459 A.2d 641. The requirement of fairness is especially significant in capital cases, id. at 61, 459 A.2d 641, and requires that a defendant be tried before a jury panel not tainted by prejudice. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961). Thus, we have imposed on trial courts the duty "to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process * * *." State v. Williams, supra, 93 N.J. at 63, 459 A.2d 641. We begin our analysis with a review of the nature and extent of the pretrial publicity in Ocean County.

As indicated earlier, the court granted defendant's motion to change venue from Ocean County. In the exercise of its discretion, the court was permitted to change venue if it determined that a change was "necessary to overcome the realistic likelihood of prejudice from pretrial publicity." State v. Williams, supra, 93 N.J. at 67 n. 13, 459 A.2d 641. On this record, we are satisfied that defendant's prominence in the community, coupled with the extensive local media coverage, threatened defendant's right to a trial before an impartial jury. Therefore, we conclude that the trial court did not abuse its discretion in granting defendant's motion to try the case in a county other than Ocean County. Nonetheless, defendant's arguments require that our analysis proceed further, and that we determine whether defendant received a fair trial in Atlantic County.

We first consider whether, as defendant urges, the trial court should have changed venue sua sponte from Atlantic County. Our decisions make clear that such a change can be granted only if a court concludes that there is a "realistic likelihood of prejudice from pretrial publicity." Ibid. To determine whether a realistic likelihood of prejudice exists in a case, we have adopted the federal distinction "between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel." State v. Biegenwald, 106 N.J. 13, 33, 524 A.2d 130 (1987) (citations omitted). It is the rare case indeed in which prejudice due to pretrial publicity will be presumed. State v. Koedatich, 112 N.J. 225, 269, 548 A.2d 939 (1988) (citation omitted). Defendant does not argue, nor is there evidence in the record to suggest, that the publicity in Atlantic County was so great as to justify a finding of presumed prejudice. See id. at 273, 548 A.2d 939. Accordingly, we will apply the "realistic likelihood of prejudice" test to defendant's claim.

Defendant points out that ninety-seven out of 147 potential jurors had read or heard about the case. In addition, defendant notes that nine out of sixteen impanelled jurors knew something about the case from the media. Seven of the twelve deliberating jurors had similar knowledge. Defendant argues that based on those statistics, the court should have excused any juror who had read, heard about, or had an opinion concerning the case, and that the failure to exclude such jurors constitutes reversible error. We disagree.

Jurors who have formed an opinion on the guilt or innocence of a defendant must be excused. State v. Williams, supra, 93 N.J. at 61, 459 A.2d 641. None of the impanelled or deliberating jurors had expressed such an opinion, however. Moreover, simply because some of the impanelled jurors indicated that they had some familiarity with the case does not warrant their automatic excusal. We have long recognized that impanelled jurors need not be ignorant of the facts of the case. State v. Sugar, 84 N.J. 1, 23, 417 A.2d 474 (1980); accord State v. Koedatich, supra, 112 N.J. at 268, 548 A.2d 939.

Although we address issues related to jury selection elsewhere in this opinion, infra at 79-98, 586 A.2d at 123-134, defendant's contentions concerning venue also encompass a specific challenge to the voir dire. Defendant claims that the voir dire failed to probe each juror's knowledge of the defendant and the murder. He argues that the jury questionnaire inadequately addressed the issue of pretrial publicity, and maintains that the court compounded that deficiency with inconsistent and superficial questioning of those jurors who indicated that they had heard about the case.

Pervasive pretrial publicity does not preclude the likelihood of an impartial jury. State v. Biegenwald, supra, 106 N.J. at 35, 524 A.2d 130. To determine the effect of that publicity, the court required that each prospective juror complete a seven-page questionnaire before voir dire began. Three questions dealt specifically with pretrial publicity:

45. Have you read in the newspapers or acquired information from any other news media sources regarding this case?

A. Yes ___ No ___

46. If so, is there anything that you have read or heard which would prevent you from being a fair and impartial juror in this case?

A. Yes ___ No ___

47. Have you formed an opinion as to the guilt or innocence of Mr. Marshall or Mr. Thompson?

A. Yes ___ No ___

If yes, would that opinion prevent you from rendering a fair and impartial verdict based solely upon the evidence and in accordance with the law which the judge shall explain to you?

A. Yes ___ No ___

The court then questioned every juror who had checked "yes" to any of the three questions.

We find no indication that any juror was so tainted by pretrial publicity as to affect the deliberative process. We emphasize that any deliberating juror who indicated exposure to pretrial publicity also disclaimed any detailed knowledge about the case. No seated juror had formed an opinion about defendant's guilt and each stated that his or her minimal knowledge of the case would have no effect during deliberations. Accordingly, we conclude that the voir dire adequately disclosed any impermissible exposure to pretrial publicity. Because we are convinced that the publicity did not affect the jury's deliberative process, there was no need to change venue sua sponte from Atlantic County, to augment the jury pool, or to use a foreign jury.

We also note that the courts below took steps to ensure that defendant received a trial before an impartial jury. The Ocean County court, obviously aware of the extensive publicity generated by defendant's trial, ordered that no newspaper could publish a twenty-five page statement given by McKinnon. The Appellate Division affirmed that order. State v. Marshall, 199 N.J. Super. 502, 489 A.2d 1235 (1985).*fn2 The court then changed

the venue to Atlantic County. Defense counsel did not raise an objection to that decision, either in Ocean County at the time of the transfer or in Atlantic County at any later point in the proceedings.

Once the case was in Atlantic County, the court further protected defendant's right to a fair trial through an extensive and open-ended voir dire. Infra at 93-94, 586 A.2d at 131-132. Moreover, the court frequently ordered the jurors to refrain from reading about the case or discussing it with anyone. Those instructions were repeated throughout the trial. We find that those measures adequately protected defendant's right to a trial before an impartial jury.

Finally, we note the significant differences between trying the case in Ocean County and in Atlantic County. Neither the victim nor defendant was prominent in Atlantic County. There was no indication in the record that the Atlantic County community was hostile toward defendant or predisposed to his guilt. We are convinced that there was no "realistic likelihood of prejudice from pretrial publicity." Accordingly, we conclude that the decision to try defendant in Atlantic County was correct and that defendant's arguments to the contrary are without merit. See State v. Biegenwald, supra, 106 N.J. at 35-36, 524 A.2d 130.

III.

Jury-Selection Issues

Defendant raises a variety of challenges to the adequacy of the jury-selection process. His challenges fall into three basic categories: that certain jurors should have been excused when their answers to voir dire questions revealed bias; that the death-qualification process was flawed in several important respects; and that the Atlantic County jury selection system was unconstitutional. We address those contentions separately.

A. Three Prospective Jurors Not Excused for Cause

Defendant argues that three prospective jurors should have been excused for cause because they had formed opinions concerning defendant's guilt. Defendant also contends that two of those jurors should have been excused for cause based on their close family relationships with law-enforcement professionals. More particularly, defendant argues that those two potential jurors admitted a proclivity toward finding the testimony of a police officer more credible than that of a non-police officer, and that that proclivity disqualified those jurors from serving on the jury. Although defendant peremptorily challenged all three of the challenged jurors, he argues that the "waste" of peremptories on those jurors, who should have been excluded for cause, in the context of a trial in which all of defendant's peremptories were eventually used constituted reversible error. Because we find that the trial court properly exercised its discretion in refusing to excuse the challenged venirepersons for cause, we need not determine whether the "waste" of peremptories in the situation described by defendant constitutes reversible error.

Prospective jurors in this case filled out a questionnaire to which the trial court and counsel referred during the individualized portion of the jury-selection process. The questionnaire was designed to expose juror bias by requiring potential jurors to report if they had been exposed to pretrial publicity, if they had any knowledge of the parties, or if any other influences might affect their impartiality. The final portion of the questionnaire related to juror views on the death penalty.

(1) Lenora Wilkins

Prospective juror Wilkins indicated in answer to the questionnaire that she had read newspaper accounts of the criminal investigation of the murder. She also indicated that her father, husband, and brother-in-law were police officers, and that another brother-in-law was a judge.

Questioned by the trial court about the extent of her exposure to pretrial publicity, Wilkins stated that she had read articles in the Asbury Park Press at the time of the murder investigation and an additional article before the jury-selection process began. Noting that Wilkins had indicated in her answers to the questionnaire that the material she had read might prevent her from being a fair and impartial juror, the trial court probed for evidence of bias. Wilkins initially stated that she took what she read in the newspapers for "gospel truth," acknowledging, however, that she should base her conclusions on the evidence. She indicated that when she had read the papers, she "automatically" assumed that defendant and his co-defendants were guilty, but further inquiry by the court revealed that her mind was open to a fair consideration of the evidence:

Q. What do you mean, it would have to be in the evidence?

A. Well, if I was picked on the jury, I guess what I had heard, it would probably turn which way you want it, I don't know. It is just what I read in the papers, you know, you're only hearing one side of the story in the newspapers.

Q. Which side do you think you heard in the newspapers?

A. How do you mean?

Q. You say you only hear one side in the newspapers?

A. When I read the newspapers, I said he was guilty.

Q. You did?

A. Yes.

Q. Now, the question of whether or not a defendant is guilty or not guilty of a charge has to be based upon the evidence to be presented at the trial. No evidence has been presented yet.

A. Yes.

Q. The fact that a defendant is charged with a crime is not evidence of his guilt.

A. Right.

Q. Now, do you feel that the opinion that you formed when you read about this case is going to affect your ability to decide the issues on the evidence that you would hear at the trial?

A. No, no, I would keep an open mind.

Q. So that despite the fact that you formed an opinion at the time, do you feel you could set aside that opinion, disregard it, ignore it, and proceed anew, so to speak, with a open mind?

A. Yes.

Q. Listen to the evidence in the case and decide, based on the evidence, and the evidence alone, whether the State has proven the defendants guilty?

A. Yes, I would think so.

(Emphasis added.)

Wilkins demonstrated some initial uncertainty when questioned about the potential for bias based on her views of the credibility of law-enforcement agents:

Q. Do you feel you would automatically believe the version of the police officer over the other person?

A. I would say yes.

Q. You would?

A. Automatically, yes.

Subsequent questioning established that the juror was not predisposed to believing the police where there was conflicting testimony from a lay witness:

Q. The question is, what did John Jones say? The police officer said John Jones said so-and-so, and another witness says no, I was there, and I heard JohnJones say something else, and they are each testifying from their memory. The police officer, according to what he says, and the other person, according to what he says, are testifying from their memory as to what John Jones said.

A. Yes.

Q. Do you feel you would automatically accept the version of the police officer as the truth over the other person?

A. No, I don't think I would in a case like this. This is a trial. I would be hearing other things, too, and it would be a combination of things to fit in.

Q. Just as to that one particular fact?

A. No, I don't think so.

Q. What was said, do you think you would automatically believe the version of a police officer?

A. No, I don't think I would in a case like this.

After defense counsel requested a more probing inquiry of the potential juror's attitude toward police credibility, the following exchange took place:

Q. Now, getting back to police officers against other people when it comes to something said, the situation like I talked to you about before * * * do you feel you would tend to automatically believe one or the other in that situation?

A. I don't know if -- well if one guy is saying one thing, the police officer, and another guy is saying another thing, you have to hear what went on, more stuff being brought in, to decide.

Q. What you are saying is if one said one thing and another said another, you would have to hear all the evidence and then decide who's telling the truth?

A. Yes, I would, yes.

After the second round of questioning, defense counsel challenged the potential juror's fitness to serve. The trial court concluded, however, that the juror was fit to serve.

(2) Annmarie Smith

Potential juror Annmarie Smith indicated that she had read newspaper accounts of the Marshall murder and had talked to co-workers about those newspaper accounts. She testified that she had formed a tentative opinion concerning defendant's guilt, but stated that that opinion would not affect her ability to decide the issues in the case based on the evidence. Defense counsel requested additional questions on the extent of publicity to which this potential juror was exposed, and the trial court undertook that questioning. In her responses to a question whether her initial opinion would intrude on her deliberations in the case, potential juror Smith stated:

I would trust not. No, I don't think so. I mean, I really don't. I mean I am accustomed to looking at problems and considering things * * * [c]oming to conclusions from what is there, and I honestly don't think it would, but I don't know. That is the way I feel at the moment.

Q. You honestly don't think it would. You honestly don't think that what you heard at the time or what you read at the time isn't going to affect you?

A. No no, because at the time, I didn't know really anything about it, you know except for the story that I read in the newspaper, and, as I said, I would certainly not make any decision on that, except for in a very casual manner, as you say, in a conversation, that's about all.

When asked yet again whether she could be impartial, she responded thoughtfully:

Q. Some people might say, "I couldn't be fair and impartial," and if they said that, they walk out of here and we excuse them. Thank you very much, and that is what would happen to you, too, if you felt that you couldn't be fair and impartial. So, that is why we want an honest answer.

A. It is a terrible temptation to say no, I couldn't be fair and impartial, and then I could just walk out of here and forget about the whole thing, right?

Q. You could.

A. But I'm supposed to be under oath, and I honestly think I could make a decision on the evidence, yes. I would want to make a decision on the evidence, because it is certainly terribly unfair to judge people in any actual process on publicity or anything like that.

Defense counsel continued to express reservations about the potential juror, but the trial court ruled that no more questions would be permitted:

All right. While I've considered the argument of counsel. This person has been questioned extensively. I have listened to her answers. She is an intelligent person, obviously. I have also observed her demeanor, and her demeanor is such that she appears to be sincere, frank, honest, in attempting to answer the questions to the best of her ability, and as far as I'm concerned, there is nothing else to ask her. I don't think it is proper to impose on a venireperson by asking them to give guarantees of anything to the court. That is not the way in which persons are to be questioned.

Defense counsel then challenged the juror and the trial court ruled as follows: "[C]onsidering the totality of her testimony, her demeanor, * * * there is no basis to excuse her for cause at this time."

(3) Nora Bader

Potential juror Nora Bader indicated in answers on her questionnaire that she had read about the case in papers or had gotten information about it from the media. In her testimony she confirmed that she had read that the "husband might have been involved," but she stated that she could decide the case impartially. This juror also indicated that she had relatives who worked in law enforcement. She testified, however, that that fact would have no effect on her ability to serve as a juror:

THE COURT: Do you feel, because of your relationship with police officers, or for any other reason, that you would tend to give more weight to the testimony of a law-enforcement officer, simply because of his or her status as a law-enforcement officer, than to another person?

THE JUROR: I would like to think that I wouldn't. And to the best of my ability, I wouldn't give more credence to one than the other. I have to be honest. I wouldn't know.

THE COURT: You don't know?

THE JUROR: I don't feel that I would.

THE COURT: You don't feel you would what?

THE JUROR: I don't think I would favor one above the other, because of myself.

THE COURT: And you feel you could evaluate the testimony of a law-enforcement officer versus a non[-]law[-]enforcement officer fairly and impartially, without bias or favor of one or the other?

THE JUROR: I think, sir, I could.

THE COURT: All right. Do you think ma'am, that being the wife of a police chief would cause you a problem in your household [were] you, just for example, to be a member of the jury they returned a verdict of not guilty. Would that cause you a problem, do you think?

THE JUROR: No.

Defense counsel questioned whether Bader's answers about potential bias were unequivocal. The trial court engaged in a second round of questions. The portion of the voir dire examination relating to the potential for bias includes the following:

THE COURT: Well, suppose you had a situation in which a police officer testified one way, and another witness testified another way.

THE JUROR: That's what you asked me.

THE COURT: And the indication was that it had to be a lie. Somebody had to be lying.

THE JUROR: Um-hum.

THE COURT: And suppose you said to yourself, well, it's pretty hard to tell who's lying. They both appear to be, from looking at them and listening to them telling the truth. But I have to decide which one is lying. Do you think you -- the juror:

THE JUROR: I understand what you're saying now.

THE COURT: Do you think that you'd go with the police officer?

THE JUROR: No. No. Not necessarily.

THE COURT: You think you could either way.

[THE JUROR]: I told you I would be objective about it. I certainly would.

Defense counsel challenged the potential juror for cause but the trial court found her qualified to serve.

We have set forth principles to guide trial courts in selection of death-penalty juries in State v. Williams, supra, 93 N.J. 39, 459 A.2d 641:

Under the Sixth Amendment of the United States Constitution and Art. I, par. 10 of the New Jersey Constitution, criminal defendants are guaranteed "the right to * * * trial by an impartial jury." * * *

The securing and preservation of an impartial jury goes to the very essence of a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600, 620 (1966); Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543, reh. den., 382 U.S. 875, 86 S. Ct. 18, 15 L. Ed. 2d 118 (1965). It has long been recognized under the federal constitution that a defendant is entitled to a jury that is free of outside influences and will decide the case according to

the evidence and arguments presented in court in the course of the criminal trial itself. Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 558, 51 L. Ed. 879, 881 (1907) (Holmes, J.).

The courts in this state have recognized that under the State Constitution, Art. I, par. 10, the right of a defendant to be tried by an impartial jury is of exceptional significance. We have stressed repeatedly that the triers of fact must be "as nearly impartial 'as the lot of humanity will admit.'" State v. Singletary, 80 N.J. 55, 62 [402 A.2d 203] (1979) (quoting State v. Jackson, 43 N.J. 148, 158 [203 A.2d 1] (1964), cert. den. sub nom. Ravenell v. New Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)); id., 80 N.J. at 70 [402 A.2d 203] (Clifford, J., dissenting); id. at 74 [402 A.2d 203] (Handler, J., dissenting); see In re Kozlov, 79 N.J. 232, 239-40 [398 A.2d 882] (1979); State v. Wagner, 180 N.J. Super. 564, 567 [435 A.2d 1190] (App.Div.1981); see also N.J.S.A. 2A:78-1 to -9 (implementing legislation intended to ensure the impanelling of impartial jurors). This requirement of fairness -- and particularly jury impartiality, -- is heightened in cases in which the defendant faces death. The death penalty is a categorical imperative for trial fairness. See, e.g., Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 2389-90, 65 L. Ed. 2d 392, 403 (1980); State v. Jackson, supra, 43 N.J. at 156 [203 A.2d 1]; State v. Mount, 30 N.J. 195, 213 [152 A.2d 343] (1959); State v. Wynn, 21 N.J. 264, 271 [121 A.2d 534] (1956).

So important is the quality of impartiality in the trial of criminal prosecutions that jurors who have formed an opinion as to the guilt or innocence of the defendant must be excused. See State v. Van Duyne, 43 N.J. 369, 386 [204 A.2d 841] (1964), cert. den., 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); In re Kozlov, supra.

Only if it is demonstrated that "the juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court" will extraneous exposure to the facts not be grounds for automatic disqualification. State v. Sugar, 84 N.J. 1, 23 [417 A.2d 474] (1980) (quoting Dobbert v. Florida, 432 U.S. 282 [97 S. Ct. 2290] 53 L. Ed. 2d 344 (1977)); State v. Conyers, 58 N.J. 123, 143-44 [275 A.2d 721] (1971); see also State v. Trantino, 45 N.J. 37 [211 A.2d 193] (1965).

[ Id., 93 N.J. at 60-61, 459 A.2d 641.]

In a subsequent stage of the Williams case, we emphasized the broad discretion afforded trial courts in carrying out jury-selection processes:

Voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and "its exercise of discretion will ordinarily not be disturbed on appeal."

On reviewing capital jury voir dire proceedings in State v. Biegenwald, supra, 106 N.J. at 35-37 [524 A.2d 130], and State v. Ramseur, supra, 106 N.J. [123] at 256-57 [524 A.2d 188 (1987)], we found in each case the trial court's approach to the problems of death qualification and pre-trial publicity entitled to

deference. We further noted in Ramseur that "[a] sensitive weighing and appraisal of a juror's entire response must be made by the trial court in its duty to resolve the question of whether the juror has shown bias or prejudgment * * *." 106 N.J. at 257 [524 A.2d 188]. It has also been observed that this court is "perhaps too far removed" from the realities of the voir dire to appreciate the nuances concealed by a "bloodless record"; therefore, deference to the trial court is usually prudent.

[ State v. Williams, 113 N.J. 393, 410-11, 550 A.2d 1172 (1988) (citations omitted).]

According due deference to the trial court's perception of the demeanor of the potential jurors and their testimony, we find there was no error in the trial court's decision to qualify potential jurors Wilkins, Smith, and Bader.

B. Qualification of Juror Neil Marzano

Defendant also challenges the trial court's decision qualifying juror Neil Marzano to participate as a juror. Defendant contends that Marzano was incapable of fairly evaluating the testimony of the witnesses at trial because a relative worked in law enforcement.

Marzano's voir-dire examination indicates that he had never heard or read anything about the case before appearing for the jury-selection process, nor had he known that the case was pending. Trial-court questions based on his questionnaire answers disclosed that his sister was employed as a sheriff's officer in Mays Landing, that her duties included transportation of prisoners, and that she had held the job for four or five years. Because Marzano had not answered the questionnaire inquiry on whether he would give the testimony of a law-enforcement officer special weight, the trial court explained at length the possibility of a conflict in the evidence to be presented at trial between versions offered by law-enforcement agents and civilian witnesses. The court then asked whether, because Marzano had a sister in law enforcement, or for any other reason, Marzano "would have to believe the testimony of the law-enforcement officer, rather than the other person?", Marzano answered, "No." The following exchange ensued:

THE COURT: Do you feel that way?

THE JUROR: No.

THE COURT: Do you feel that you could evaluate the testimony of witnesses in a situation of that type in the light of common sense and all the other evidence on the case as to what the truth was?

THE JUROR: No.

(Emphasis added.)

The court then moved on to another area of questioning and then ended the initial round of voir dire questions. The juror was then asked to leave the courtroom while the attorneys offered areas for further questions.

Defense counsel made no reference to Marzano's negative answer concerning the ability to weigh the evidence and find the truth. Instead, defense counsel focused his request for additional questions on the possibility that Marzano had heard from his sister that defendant was at that time in custody:

Perhaps your Honor could ask them whether or not he has had any discussions with either his sister or anyone in the sheriff's office in any way, shape or form, about either of the defendants, without getting into the fact that they may either be in custody there now, or at one time have been there at some point.

In other words, I -- that's my only concern. If he, for one reason or another, knows of their status right now, then that, in turn, may have an impact or influence him in some fashion. So if your Honor could figure out a way to frame a question to ensure the fact that he comes into this case with the same lack of knowledge as everyone else. I'd like your Honor to do that, if you could.

When Marzano reentered the courtroom, the court asked several questions designed to reveal whether he had had discussions with any law-enforcement personnel regarding the case. When he answered that he had not, and that he would obey an instruction not to have any such conversations, the court, without objection from defense counsel, found him qualified to continue to serve as a prospective juror.

Defendant argues that Marzano's negative answer to the question concerning his ability fairly to evaluate the evidence and to determine the truth should have disqualified him as a juror. We find that that isolated negative answer, especially in the context of both the trial court's and counsel's total lack of response, is inexplicable. Even assuming that the transcript

accurately reflects Marzano's answer, however, that isolated response, when considered in the context of the entire voir dire, does not demonstrate that the juror was unfit to serve.

C. Death Qualification

Defendant argues that the death qualification of the jury was inadequate in several important respects. Defendant's first contention is that the trial court's preliminary instructions to the jury improperly put potential jurors "in the position of determining whether [they] met the legal requirements to serve on a jury." State v. Williams, supra, 113 N.J. at 413, 550 A.2d 1172 (footnote omitted).

1. Preliminary Instructions

The jury-selection procedure followed by the trial court in this case began when the trial court gave a preliminary, orienting instruction to the jury pool. In that instruction the court made the following observation:

I am sure that members of this jury panel have widely different opinions [with respect to the death penalty]. Some of you may believe that the death penalty should never be imposed no matter what evidence is presented in that regard. Conversely, others may believe that capital punishment should always be imposed upon a defendant who is found guilty of murder. Others may believe that the death penalty is proper in certain instances and not in others. Some of you may not have formed any opinion on the subject.

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

In Williams, supra, 113 N.J. at 412, 550 A.2d 1172, we expressed "serious reservations concerning the propriety of an instruction * * * that * * * effectively tells a juror what answers during the death qualification process lead to automatic excusal and what responses avoid excusal." In that case the court instructed the jury as follows:

In short, your views about a death penalty disqualify you only if they cause you to vote automatically one way or the other without regard to the evidence or my instructions as to whether defendant is guilty or as to whether a death penalty is to be imposed.

[ Ibid. ]

In this case, the offending instruction contained a somewhat-less-explicit reference to the conditions for disqualification than the instruction in Williams. Although we continue to have strong reservations about any instruction that suggests to prospective jurors the conditions for disqualification in advance of their voir dire examination, we do not consider it to be reversible error to instruct the venire, as the trial court did here, that jurors who cannot follow the court's instructions will not be qualified to serve.

2. Limited Individualized Questioning on Death Qualification

Defendant's principal argument concerning the death qualification of jurors pertains to the adequacy generally of the court's questions to prospective jurors about their views on the death penalty. Defendant challenges the trial court's failure to ask of each potential juror thorough and probing questions about that juror's attitude concerning the death penalty.

Before the jury selection began, defense counsel stated that he preferred to omit all death-qualification questions from the jury-selection process because he believed that such questions led to a conviction-prone jury. He then argued, relying on the Eighth Circuit's opinion in Grigsby v. Mabry, 758 F.2d 226 (1985), rev'd sub nom. Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986), that to exclude prospective jurors opposed to the death penalty from the guilt phase violated defendant's right to an impartial jury. Consequently, defense counsel proposed that those jurors ordinarily excludable for cause through death qualification be qualified for the guilt phase of trial. If a penalty phase were necessary, counsel proposed that those jurors be replaced by death-qualified jurors,

also selected before the guilt phase, who would sit as alternates during the guilt phase. Defense counsel asserted that the method proposed was the "fairest way to try a capital case."

The trial court denied the motion:

I will deny the motion, because I believe that it is appropriate to question the jurors regarding their views on the subject of whether their views would compel them to vote for that penalty, whether their views would compel them to vote against that penalty, whether their views would substantially affect or impair their ability to either decide the question of guilty or not guilty or the question of what punishment would be imposed in the event that they do return a verdict of guilty. So therefore I will deny the motion.

After one full day of jury selection, defense counsel reiterated his view that death qualification of jurors violated his client's right to an impartial jury. To reduce the asserted prejudicial impact, counsel moved to limit death qualification of potential jurors. Specifically, defendant's counsel, with the concurrence of counsel for Thompson, sought to have the trial court rely on prospective jurors' answers to questions regarding death qualification as they appeared in the questionnaire that had been distributed before the individual questioning began. Defense counsel argued:

On the questionnaire, appearing on the last page are three questions pertaining to a prospective juror's views on capital punishment. In the past at least, even if the prospective juror answered in a fashion which would be consistent with being qualified to serve on this jury, your Honor has still explored to some extent their views in this area. My request is that at least with regard to further panelists, if the answers to the questions are such that they would be qualified by virtue of their answers, I ask that your Honor not inquire any further into their views on capital punishment inasmuch as I feel it only serves to highlight further the area that I had objected to in the very beginning that deals with death qualification.

There being no objection to this request from the State, the Court permitted the defense to make the strategic determination to limit death qualification of potential jurors to those questions printed in the questionnaire. Accordingly, during the balance of the voir dire, the trial court conducted additional questioning on death qualification only in the event that a potential juror indicated in the questionnaire that his or her

views on the death penalty might impair that juror's ability to follow the court's instructions.

It is by now well settled that no person may serve on a jury in a capital case whose views concerning the death penalty "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Williams, supra, 113 N.J. at 415, 550 A.2d 1172 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581, 589 (1980)). To discover juror attitudes concerning the death penalty we have taken a strong position in favor of individualized open-ended questioning:

Given the important, delicate and complex nature of the death qualification process, there can be no substitute for thorough and searching inquiry by the trial court into each individual's attitude concerning the death penalty. An important ingredient in this inquiry is the use of open-ended questions, which in our opinion are most likely to provide counsel and the court with insight into juror's opinions and biases.

[ Id. 113 N.J. at 413, 550 A.2d 1172.]

Our views on the proper administration of the voir dire process, however, like our views on the proper administration of other death-penalty concerns, have, from the first, been seasoned by a degree of deference to defense counsel's strategic decisions. Thus, in State v. Hunt, 115 N.J. 330, 558 A.2d 1259 (1989), decided one year after Williams, we tempered our view on the indispensability of open-ended questions during death-qualification voir dire:

We continue to believe that trial courts should not rely on leading questions, but should formulate questions that give potential jurors the opportunity to air their views on the death penalty. Here, however, defendant's counsel declined the opportunity to request further questioning and did not object to the jurors' qualifications. Furthermore, the relatively limited voir dire of [certain] jurors * * * does not indicate the tenor of the trial court's questioning of other jurors. Although the court often began the death-qualification inquiry by simply asking whether the juror would automatically vote for or against the death penalty if a defendant was convicted of murder, it generally pursued an affirmative response with more detailed questioning. * * * Although the voir dire may not have been perfect in all respects, we are satisfied that it was sufficient to enable counsel and the court to evaluate the jurors' fitness to serve.

[ Id. at 354, 558 A.2d 1259 (emphasis added).]

Moreover, except in the most extreme cases, strategic decisions made by defense counsel will not present grounds for reversal on appeal:

"The defendant cannot * * * request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Pontery, 19 N.J. 457, 471 [117 A.2d 473] (1955). To justify reversal on the grounds of an invited error, a defendant must show that the error was so egregious as to "cut mortally into his substantive rights * * *."

[ State v. Ramseur, 106 N.J. 123, 281-82, 524 A.2d 188 (1987) (citing State v. Harper, 128 N.J. Super. 270, 277, 319 A.2d 771 (App.Div.), certif. denied, 65 N.J. 574, 325 A.2d 708 (1974)).]

On the facts presented it is clear that counsel twice requested a limitation on the death qualification of prospective jurors. On the first occasion, before the start of jury selection, defense counsel sought to permit jurors opposed to the death penalty to participate in the guilt phase. When that motion was denied, defense counsel requested that death qualification be limited to those questions on the jury questionnaire, except with respect to those jurors whose questionnaire answers were unsatisfactory. When the State did not object, the trial court granted the motion. It is clear that defense counsel's request was a well-considered strategic attempt to limit juror exposure to questions concerning capital punishment.

We continue to believe that by far the better course is to submit all potential jurors to "thorough and searching inquiry by the trial court into each individual's attitude concerning the death penalty," Williams, supra, 113 N.J. at 413, 550 A.2d 1172. The advantage of a complete and thorough investigation of each individual juror's attitude concerning the death penalty is that it guarantees a complete record on "which to apply the Adams/Witt standard in granting or denying excusals for cause." Ibid. However, we do not conclude that a trial court's decision to limit individualized death-qualification inquiry necessarily constitutes error, where that decision is the result of a strategic and informed request by defense counsel.

On the record before us, we hold that the trial court's decision to grant defense counsel's request to limit death qualification with respect to those jurors whose answers to the questions printed on the jury questionnaire were acceptable, if it was error at all, was not error sufficiently "egregious as to 'cut mortally into [defendant's] substantive rights * * *.'" Ramseur, supra, 106 N.J. at 282, 524 A.2d 188 (quoting State v. Harper, 128 N.J. Super. 270, 277, 319 A.2d 771 (App.Div.), certif. denied, 65 N.J. 574, 325 A.2d 708 (1974)).

We also note that the lack of specific death-qualification interrogation during the voir dire stands in sharp contrast to the trial court's patient and methodical conduct of the overall jury-selection process. With but few exceptions, the trial court consistently and repeatedly acquiesced in defense counsel's requests to reinterrogate prospective jurors about specific subjects. The trial court's conduct of the voir dire was thorough and meticulous, and was painstakingly responsive to counsel's concerns that the scope of inquiry about specific subjects required amplification. Particularly striking illustrations of the trial court's willingness to reopen and supplement the voir dire process to address defense counsel's concerns can be found in the interrogation of prospective jurors Wilkins, Gibbons, Weiner, Hudson, and Fox. The trial court's general responsiveness to counsel's concerns during the voir dire suggests that the scope of questioning relating to death qualification would have been far more extensive had defense counsel evinced a desire to pursue that subject more thoroughly.

3. Excusal of Jurors Opposed to Death Penalty

Defendant's final allegation of error concerning death-qualification is based on the trial court's excusing for cause three potential jurors who indicated that their views concerning the death penalty would prevent or substantially impair the performance of their duties as jurors. Specifically, defendant argues that the three jurors so excused did not in fact hold

views that were incompatible with service on a death-penalty jury.

Potential juror Robert Corrigan expressed the view that he was "an advocate against the death penalty. I always have been." When the court sought further to explore his view, the following exchange occurred:

Q. When you say you always have been, for what length of time have you held that view?

A. I was a college professor in criminology and familiar with the literature, and I taught my students, in fact for many years when I was a college professor, against the death penalty for many reasons, morally, ethically.

Q. Did you feel, sir, that if you were a member of the jury that you would vote against the death penalty, if that were the issue, no matter what evidence was presented in that regard?

A. I think so.

Q. And when you say you think so, what do you mean by that, sir?

A. I think that I would have to vote against the death penalty.

Q. Can you conceive of any circumstances under which you would vote for it?

A. I can't conceive of any.

Q. If you could conjure up in your mind the most horrible type of crime and murder, would you think that your view would still be the same and you would not vote for it?

A. I think so. I think I would have to not vote for it.

On the basis of that preliminary exchange, the State moved to have Corrigan excused because his views on the death penalty would substantially interfere with his performance as a juror. Defense counsel sought further questioning to establish whether, in spite of his views, the juror could follow the court's instructions if he was selected as a juror. The trial court agreed to ask further questions. After describing in detail the process involved in a penalty phase, the trial court again asked Corrigan whether he could follow instructions of the court, knowing what the results of his findings might be. Corrigan responded that he could not follow such instructions. The following exchange ensued:

Q. When you say you don't think you could, does that mean there is some uncertainty in your mind?

A. Yes, I have never been through this process before. You know, one's convictions are one thing. When they are tested is reality, and they have never really been tested. But, right now I have strong convictions against the death penalty, and I don't think I could put myself in the position to impose the death penalty. In reality that is what I would be doing.

On the basis of his answers, the trial court found "as a matter of fact, having heard him and listened to him, that his views clearly would substantially impair his ability to follow the instructions of the Court." Therefore, the juror was excused. After reviewing the transcript of this voir dire testimony, we conclude that there was no error in the trial court's exercise of its discretion in excusing potential juror Corrigan for cause.

Potential juror Michelle Denise Hart also expressed significant doubts about her ability to follow the court's instructions in the penalty phase. Moreover, Hart also had some difficulty in understanding the process and procedures involved in death-penalty cases. During the portion of her voir dire testimony that dealt with death-qualification, she seemed at first to confuse the question of the penalty phase with the determination of guilt. When, however, she was asked whether she could make a determination of guilt based on the instructions of the court, she answered, "Yes, to a certain extent":

Q. What do you mean to a certain extent?

A. If it comes down to the chair or something like ...


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