On appeal from the Superior Court, Law Division, Camden County.
The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Clifford, Pollock, and O'Hern join in this opinion. Justices Stein and Handler have filed separate opinions, concurring in part and dissenting in part.
On Thursday, February 27, 1986, Arthur Perry went to a second-floor bedroom of an apparently abandoned house at 762 Division Street in Camden, New Jersey, to inject himself with heroin. Jerome Redd, a fourteen-year-old acquaintance of Perry who often supplied Perry with drugs, entered that room before Perry could inject himself with the drugs. The ensuing encounter led to the death of Jerome Redd.
A jury convicted defendant, Arthur Perry, of the murder of Jerome Redd and sentenced him to death. He appeals directly to this Court as a matter of right. R. 2:2-1(a)(3). We affirm defendant's conviction of knowing murder and related offenses.
Because we find that there was insufficient proof to have submitted to the jury the aggravating factor described in N.J.S.A. 2C:11-3c(4)(c) ("c(4)(c)"), we reverse the imposition of the death penalty. For the same reason, no court may again impose the death penalty on defendant. Consequently, we remand the matter to the Law Division for the imposition of a life sentence with a thirty-year-parole-ineligibility term, pursuant to N.J.S.A. 2C:11-3(b).
On March 4, 1986, Perry confessed to killing Redd following a brief dispute over drugs, money, and a possible distribution/commission arrangement between Perry and Redd. The confession followed a week-long investigation by the Camden City Police Department and the Camden County Prosecutor's Office.
A. The Initial Discovery of Jerome Redd's Body at 762 Division Street
On Sunday, March 2, 1986, Arthur Perry and Clark Miller, his estranged homosexual partner, called the Camden Police to report that they had found a dead body in the basement of a home owned by Perry located at 762 Division Street, Camden. When, in response to the call, Detective Beverly arrived several minutes after 1 p.m., Miller and Perry told Beverly that they had found a body in the right rear corner of the basement. They then showed Beverly the door to the basement.
Beverly went into the basement carrying his service flashlight. In the relative darkness, Beverly "couldn't see anything," despite his flashlight. What he could see appeared to be rags. Beverly then left the basement without determining that a body was actually present.
After obtaining a stronger flashlight Beverly returned to the basement where he found a dead, young black male of medium complexion with an electrical cord wrapped "choker-style" around
his neck. The body was in a semi-sitting position, covered by a blanket, and partially hidden by a detached screen door. After replacing the blanket, which he had partially removed from the victim during his initial inspection, Beverly returned to the front of the house and notified the appropriate members of the police force and the prosecutor's office. After ordering Patrolman Vernon Curtis to keep the area secure, Beverly took Miller and Perry to the police administration building for interviewing.
B. The Subsequent Investigation of the Basement of 762 Division Street
Meanwhile, the "appropriate members" of the police department and the prosecutor's office, Inspector Craig Milbury and Crime Scene Technician Paul Scully, responded to the crime scene and went directly to the basement, where Scully began to photograph the scene, collect physical evidence and sketch a diagram of the scene.
Because the presence of the electrical cord around the victim's neck suggested that the victim had been hanged, Milbury's investigation focused on evidence to support that cause of death. He found none.
Investigator James Doyle of the Camden County Medical Examiners Office then arrived. Following his check-list report form, he inspected the body. He noted rigor mortis in the jaw, arms and legs and livor mortis in the back.
Dr. Sunandan Singh, an assistant medical examiner for Camden County, conducted an autopsy, which indicated asphyxia by manual strangulation as the cause of death. He also ruled out death by hanging because the broken hyoid bone and ligature marks that lacked an upward turn contra-indicated such a conclusion. Although this confirmed an earlier, independent conclusion by Inspector Milbury, it still left unexplained the electrical cord wrapped around Redd's neck. Dr. Singh noticed another oddity: the victim had unusually well-arched eyebrows,
as if shaved or plucked. He also had pink make-up around his eyes.
C. Subsequent Investigation of Other Areas In and Around 762 Division Street
After transporting Perry and Miller to the police station, Detective Beverly canvassed the neighborhood around Division Street with a polaroid photo of the victim in an unsuccessful effort to find someone who could identify the victim.
Inspector Milbury surveyed the rest of the house. He found the first floor empty, except for an unplugged refrigerator. The second floor had two sparsely furnished bedrooms. One of the rooms had "a lived-in or transient appearance" and contained blue glassine bags with a white powdery residue, plus drug paraphenalia, including a burnt spoon, two syringes, and two pumps. Milbury also discovered forms and insurance paperwork bearing the name Clark Miller and the address 1189 Landsdowne Avenue, Camden.
D. Statements by Arthur Perry Concerning the Police Investigation
Between March 2, 1986, when authorities were first notified of the discovery of the victim's body, and March 4, 1986, when Perry confessed to killing Jerome Redd, police officers or members of the prosecutor's office interviewed Perry four times. Although defendant was notified repeatedly of his right to remain silent and his right to counsel, he volunteered his assistance each time, seeking to resolve that matter as quickly as possible. Because inconsistencies developed between his statements and those of Miller as well as among his own statements, authorities interviewed Miller and Perry separately and sought additional evidence further to corroborate or discredit the story of either one.
1. The Initial Interview at 762 Division Street
After Detective Beverly had transported Perry and Miller to the police administration building, Inspector Milbury, who had taken charge of the investigation, decided to question Miller and Perry at the scene. The two were returned for that purpose.
Perry told Inspector Milbury that he owned the house and that he and Miller had discovered the body while making one of their periodic checks for vandalism. He stated that they had arrived Sunday March 2nd, at around 1:00 p.m. and had noticed the front door ajar. When they entered the house, they discovered that the basement door had been nailed shut. Perry said that they pried open the door and went into the basement, where they discovered that a screen door had been moved and seemed to cover "something stashed." Because of the dim lighting in the basement, Perry reached out and felt a human knee. Miller then lit his cigarette lighter to provide illumination and confirmed that there was a body. Milbury asked Perry and Miller if they knew the identity of the victim. Each said he did not.
2. The Later Interview at the Police Administration Building
After the initial interview at 762 Division Street, Perry and Miller were taken back to the Administration Building for separate interviews by Inspector Milbury, during which previously unknown facts and further inconsistencies came to light. When informed of the inconsistencies, each volunteered to take a polygraph test.
Before Perry could be given the test, he terminated the interview, promising instead to return the next day to submit to the polygraph. He stated that he wished to confer with counsel.
3. The March 3rd Interview
When Perry returned to the Administration Building on Monday, March 3rd, he stated that he wanted to proceed with the polygraph test. He had not communicated with his attorney. During the pre-test interview Perry revealed that he and Miller had a homosexual relationship and that he knew the victim, Jerome Redd. This conflicted with his earlier statements to Milbury. Perry also stated that the house at 762 Division had been purchased for one dollar as a "shooting gallery," i.e., a place for drug users to inject or "shoot up" drugs. Perry repeated his story about checking for vandalism. He added that he had also gone into the house on Sunday, March 2nd, to inject drugs. According to Perry, Miller waited outside, entering only when Perry called him in to investigate the boarded-up door.
His suspicions aroused because of Perry's appearance and behavior, the polygrapher asked Perry if he had taken drugs. On receiving an affirmative response, he terminated the test, which was then scheduled for the following day. Perry left, accompanied by Miller.
Thereafter, Milbury interviewed Robert Morton, a local high-school teacher who lived on Division Street, and two of his pupils, Todd Lewis and Troy Hunt, both also Division Street residents. The teacher stated that he knew the victim, Jerome Redd, to be a drug dealer who frequented the shooting gallery at 762 Division Street. He also mentioned that he had information that on occasion Perry allowed Redd to borrow a maroon Buick in exchange for drugs. The vehicle was later identified as Miller's car. The two boys stated that they had been in the Division Street building with Perry on Friday, February 28th, and that they had helped him fix the lock on the front door. They also had watched him nail shut the basement door. They differed over whether Miller was present while the door was being nailed shut. One said that he was, while the other stated that Miller arrived just after Perry had completed the task.
This information from the boys directly contradicted Perry's assertion that he had found the door boarded up.
4. The March 4th Interview
Perry was scheduled for a polygraph test at 2:00 p.m. on March 4th. The police had assumed that he would arrive with Miller, who was also scheduled for a polygraph that day. When Miller arrived without Perry, the police asked Miller to find Perry and bring him back. Miller returned at noon without Perry.
Miller informed Inspector Milbury and Detective Beverly that Perry would not come to the station until after he had purchased and used drugs. Realizing that Perry's drug use would cause another postponement of the twice-delayed polygraph, Milbury and Beverly set out to find Perry before he could purchase or use drugs. After looking unsuccessfully at several known Camden drug-dealing locations, they drove by Miller's 1189 Landsdowne Avenue address where they spotted Miller's car. Knowing Miller to be at the police station, they stopped to look for Perry.
Entering through the partially-open door, Milbury and Beverly saw Perry at the top of the stairs. He said that although he knew that he was supposed to be at the detective bureau taking a polygraph, he wished to "mellow out" prior to the interview. He asked the detectives if he could then inject the drugs. They said "no" and confiscated the drugs, a spoon and a hypodermic needle.
While under arrest for unlawful possession of those drugs and the paraphernalia, Perry stated that he nonetheless wanted to continue with the previously-scheduled polygraph test because he "wanted to clear himself." After being taken to the detective bureau for that purpose, Perry again went through a pre-test interview, in which he basically repeated the same story he had previously given. James Bandock of the Camden County Prosecutor's Office then conducted the polygraph examination.
In common parlance, he "failed the lie detector test." The examiner told Perry the results.
Perry then changed his story several times in several ways. He then agreed to give a taped statement to Detective Beverly and Inspector Milbury. In that statement, he confessed to killing Jerome Redd on Thursday, February 27, 1986.
Q. Okay, Arthur, will you describe to me in your own words exactly what you know concerning the commission of this crime?
A. There was a dispute over monies. He and the people he worked for was trying to get me to distribute drugs so I could have drugs free of charge and to make them money. By them knowing that I didn't need that, they pursued coming around the job, coming around our home, to give me drugs. On that Thursday when Clark got me out of prison, out of jail, and bailed me out, the young man came around to the home
with two bundles to try to give me both of them so I could sell some for him. When I resisted and, to do so, we got into an argument. I did not mean to kill this man [Jerome Redd].
He stood as tall as I did, so I had to grab him. I grabbed him in the fashion that I learned in the Marine Corp., by the neck, and locking him. When we fell, the pressure of my grip strangled him obviously. He got limp for a few minutes, then he broke out into a rage as if he was trying to really get loose. I guess that's when he was losing his life. And I held him for another minute or so and he just collapsed; he died. I panicked, searched his body for any weapons or any other drugs, took him downstairs, attempted to get rid of his body out of my place, but it was too early to do so, so I camouflaged his body behind an air-conditioning unit in the basement. Didn't want to touch his body so I took a cord that was given to me and tied him up and drug him to the area which he was found and camouflaged him as much as I could.
Q. Okay. Now, again, how did this argument develop while you and he were in the residence?
A. Over monies that they say that I had owed them.
Q. Now, was the victim, Jerome Redd, already in the house at that time?
A. A, he had shortly came in just before I even got a chance to do anything with what I had.
Q. Were you in the process of shooting your drugs.
Um, he told me he had something nice.
A. To the drug. I said, well, let me do this and let me check out what you've got. And he said, you know that you owe us money. I said, look, as far as I know all my debts are paid. He said, well, we can work around that; I have something for you if you want to take it and every four bags you sell you get one for yourself; if you fuck us around, you know you can't be here no more. I said, I don't have to do all of that, you know. He started cursing me out and, um, went into this little rage, and he came towards me just as I was injecting and I took one, I didn't have even a chance to boot as they call it, and I took the syringe out of me and I told him, I said, look M.F., you better back the fuck up and wait until what I got to do, figuring I could pump enough fear in him to make him shut up and wait. It didn't work. He came at me as if he had something, that's why I searched him after what went down.
A weapon. I thought he had a gun or a knife or something, cause he was too anxious to come at me. And, um, before I had gave him a chance to do such, when he walked towards me cause its a narrow room, I gave him enough room to get close enough to me where when he pointed at me, I moved to the side and I grabbed him and threw him back over me, you know. And, um, it was a method I learned from the Marine Corp. I grabbed him, threw my knee up and threw him down on it and kept him locked like that to restrain him. And, I seen that he wasn't gonna cool out and he just broke into a rage and we scuffled for a few.
And, um, I just held on to him as tight as I could, and he relaxed for a second. Now, I know when you strangle somebody the first thing that they pass out. I assume that's what happened. As soon as I gave a little bit of leeway is to let him go. He broke on me again and he had strength that I've never felt before and I knew if I let him go it was either me or him. That's when I grabbed him with the death grip and didn't let him go for at least thirty to a half a minute or even a minute. When he had no more movement in his body, I let him go. I could see then that I did something that I didn't want to do because his tongue was puffed sticking out the side of his mouth. I don't know if he was dead at that time. Maybe I could have saved his life if I would have called the police right away and an ambulance, but I didn't do that. I was scared to death and, um, I searched him for a weapon.
I did it by myself; didn't mean to do it; didn't know what was gonna happen afterwards. I was scared to death; never killed nobody in my life.
Beside confessing to the method and circumstances of the killing, Perry admitted several other things. He described
taking money and drugs from the lifeless Redd. He also told of carrying Redd to the basement, wrapping him in a blanket, and tying an electrical cord around his neck, thereby allowing him to drag the body across the basement floor without touching it further. He also admitted taking Redd's sheepskin jacket and selling it to one of Redd's friends. That admission corroborated information police would later receive from Sir Walter Alexander Pitt, III, who had witnessed a transaction involving the sheepskin coat on Friday, February 28, 1986.
On August 20, 1986, the Camden County Grand Jury returned an eight-count indictment charging Perry with first-degree murder, contrary to N.J.S.A. 2C:11-3a(2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count two); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count three); four counts of third-degree hindering his own apprehension, contrary to N.J.S.A. 2C:29-3b, alleging that defendant had concealed, moved, and disguised the victim's body (count four), and had nailed shut the door to the basement where the body was found and further had barricaded it with a refrigerator (count five); volunteering false information to police (count six); concealing the victim's identity and manner of death from Miller, a material witness (count seven); and possession of heroin, contrary to N.J.S.A. 24:21-20(a)(1) (count eight). After Perry had pled not guilty, the State filed notice of its intent to seek the death penalty because of the alleged presence of two aggravating factors, N.J.S.A. 2C:11-3c(4)(c) (murder involving torture/aggravated assault, or murder evidencing a depraved mind), and N.J.S.A. 2C:11-3c(4)(g) (murder committed in the course of a felony).
Jury voir dire lasted roughly six court days. Under a "struck jury" approach the trial court and counsel questioned five jury panels. Approximately fifty-four jurors were "death-qualified."
The process included the jurors' responses to a written questionnaire and to questions from the court. The questionnaire explored basic biographical information, inquired whether the jurors had any acquaintance with the defendant or counsel, and investigated the jurors' past contacts with, and relationship to, the criminal justice system. Questions from the bench probed more deeply into issues raised by responses to the written questions and then examined the jurors' views on the death penalty. That process, coupled with peremptory challenges, produced sixteen jurors for the guilt phase.
At the conclusion of the jury voir dire Perry entered a plea of guilty to count eight, possessing heroin.
At trial, the State basically related the facts described above. Additionally, the prosecution played a thirty-six-minute audio tape of Perry's statement, the most salient parts of which are quoted above. Milbury, Beverly, and Dr. Singh all testified to the facts set forth above. During the guilt phase, the State advanced the theory that defendant, fed up with being harassed by Redd and his associates, decided to kill Redd in order to steal his drugs and money. The State produced as a witness John Leroy Harris, who had shared a cell in the Camden County Jail with Perry in April 1986. Harris testified that Perry had confessed the killing to him, had told him that "they" had taken the body to the cellar and put it behind some boards, that the "white guy" had shaved the eyebrows and put make-up on the body to make the victim look homosexual (so that it appeared someone else had killed him), and that Perry had strangled the victim with his hands. Finally, the State introduced various pieces of physical evidence, including drug paraphernalia, clothing and blankets from the basement, and the extension cord.
The defense case centered around the uncertainty of the date of death and the State's alleged failure to corroborate Perry's confession. The defense sought to establish that Redd had died on March 2nd, not three days earlier as Perry's confession indicated. Hence, the State had not proved its case that defendant was present or participated in any way in the death of
Redd. To discredit the State's theory the defense called James Doyle from the Medical Examiner's office. Based on his report of the incident, Doyle testified that he had observed rigor mortis in the jaw, arms, and legs of the victim, livor mortis in the back, and that when he had felt the body, it was cold. Lieutenant Long of the Camden Police testified that no missing-persons report had been filed on Jerome Redd between February 25 and March 4, 1986. Defense counsel also recalled Milbury to the stand to establish that several items referred to in Perry's statement, including a Kangol hat and large cardboard box, had never been confirmed to have been at 762 Division Street.
On count one the trial court charged the jury on knowing murder, aggravated manslaughter, and reckless manslaughter. The court next charged the jury on felony murder (during the robbery of Redd), first-degree robbery, and the hindering-apprehension counts. After deliberating for an hour and a half, the jury sought re-instruction on felony murder and first-degree robbery, after which it resumed deliberations and found Perry guilty of knowing murder, felony murder, and three counts of hindering apprehension (counts one, two, four, five and six). However, it acquitted defendant of robbery (count three) and one count of hindering apprehension (count seven). The State, defense, and the court all noted the inconsistency in the conviction for felony murder and the acquittal of the underlying felony of robbery. In a highly unusual procedure, the trial court, over defendant's objection, questioned the jury foreman directly concerning the basis of the robbery verdict. Thereafter the trial court decided to mold the verdict to "not guilty of felony murder" because the jury had acquitted defendant of robbery, the underlying felony. The trial court, however, never informed the jury of that change in its verdict.
The State had originally served notice of two aggravating factors, N.J.S.A. 2C:11-3c(4)(c) and (g). However, the acquittal
of felony murder resulted in the dismissal of aggravating factor. Therefore, the State relied exclusively on c(4)(c), the torture/aggravated assault/depravity factor.
The State offered no new evidence at the penalty phase, limiting its presentation to an opening and a closing statement by the prosecutor. In those statements, the prosecutor adopted what came to be known as the "strangled twice" theory. In an effort to establish "aggravated assault" and to show that the crime was not one of self-defense or quick death, the prosecutor described the murder as one in which Perry had choked Redd to the point of unconsciousness, and then let him revive. According to the prosecutor, after Redd had revived, defendant then reapplied the choke-hold and killed him. That theory was based more on the medical examiner's answer to a hypothetical question than it was on any of Perry's statements about the encounter.
Despite the fact that the State's main guilt-phase argument was that the murder had occurred during the course of a robbery, the prosecutor, in an attempt to establish the "depravity of mind" element of c(4)(c), alleged inconsistently that the murder was purposeless. "The defendant just felt like killing [the victim] because, as you know, Jerome was unconscious for a while after the first strangulation. There's no need for him to die."
Defendant alleged five mitigating factors: N.J.S.A. 2C:11-3c(5)(a) (extreme mental or emotional disturbance), c(5)(b) (the victim "solicited, participated in, or consented to the conduct resulting in death"), c(5)(d) (impairment due to mental disease, defect or intoxication), c(5)(e) ("unusual or substantial duress"), and c(5)(h) (the "catch-all" factor). The defense called only one witness, Delihah Redd, the victim's mother, who spoke out against capital punishment. In closing, defense counsel linked all of those mitigating factors into an argument that during a dispute between Redd and Perry, Perry's withdrawal from drugs had caused him to over-react during the confrontation.
The trial court then charged the jury, explaining the general differences between aggravating factors and mitigating factors. It differentiated the two according to the burden each party carried to show a particular factor and to how the jury should determine its existence or non-existence.
The jury unanimously found aggravating factor c(4)(c) and found no mitigating factors. The court sentenced defendant to death.
3. Post-Trial Proceedings
Defendant moved to set aside the penalty-phase verdict, or, in the alternative, for a new trial. The motion had been foreshadowed by counsel's eleventh-hour request to forego the penalty phase. That request had come after the jury had been charged in the penalty phase but before deliberations had actually begun. The trial court both then and at the post-trial hearing rejected Perry's argument that a jury could not rationally find factor c(4)(c) to exist.
The trial court sentenced defendant on his non-capital convictions as follows: after merging the three hindering-apprehension charges, to a five-year term, consecutive to any other sentence, and for possession of heroin to a consecutive five-year term.
Defendant makes four principal challenges to the guilt phase. First, he asserts that he was denied effective assistance of counsel in violation of the sixth amendment of the federal Constitution and article 1, paragraph 10 of the state Constitution. Second, he asserts for the first time on appeal that incomplete and improper jury voir dire denied him his right to a fair trial by an impartial jury in violation of both federal and state constitutions. Third, he asserts that the court erred in failing to charge the jury sua sponte on passion/provocation
manslaughter and self-defense, thereby depriving him of due process of law. Finally, he argues pursuant to State v. Gerald, 113 N.J. 40 (1988), that the trial court's failure in its jury charge to distinguish for capital-sentencing purposes between intent to kill and intent to cause serious bodily injury deprived him of due process of law and subjected him to cruel and unusual punishment. We find no prejudice to defendant as a result of any of these alleged errors. Accordingly, we affirm Perry's conviction for the knowing murder of Redd.
A. Alleged Ineffective Assistance of Counsel
First, Perry claims denial of his constitutional right to counsel under the sixth amendment. Specifically, he contends with respect to the guilt-phase that his counsel were ineffective because (1) they failed to move to suppress evidence based on fourth- and fifth-amendment violations, and (2) they failed to investigate and present alternative defenses. We find his contentions meritless.
The United States Supreme Court set the test for identifying ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984), which we adopted in State v. Fritz, 105 N.J. 42 (1987). More recently, we affirmed our adherence to the Strickland/Fritz standard in State v. Savage, 120 N.J. 594, 614-15 (1990), and State v. Davis, 116 N.J. 341 (1989), where we declared the Strickland/Fritz standard applicable also to capital-murder cases. Under that test, the benchmark for determining attorney incompetency is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. at 686, 80 L. Ed. 2d at 692-93.
1. Defendant's Arrest Was Legal
Defendant asserts that law-enforcement officers Milbury and Beverly illegally entered 1189 Landsdowne Avenue on March 4,
1986. Defendant argues that, because the entry was illegal, so was his warrantless arrest for narcotics possession. As the fruits of that illegal arrest, drugs and paraphernalia should have been suppressed, as should have the taped confession, because there were no intervening circumstances that purged the taint. The State contends that the arrest was legal because the illicit materials, the drugs and paraphernalia, were in plain view.
The police may seize evidence found "in plain view" despite the lack of a warrant. State v. Hill, 115 N.J. 169, 173 (1989). The applicability of the plain-view doctrine depends on the right of the officer to be in the position to have that view and to seize that evidence. Harris v. United States, 390 U.S. 234, 236, 19 L. Ed. 2d 1067, 1069 (1968). Detective Beverly and Inspector Milbury had that right.
The officers' right to be in a position to have a plain view arose out of the purpose of their entrance into the house. "Legitimate precaution justifies routine police procedures not designed as pretexts to discover evidence." State v. Esteves, 93 N.J. 498, 506 (1983) (citing Cady v. Dombrowski, 410 U.S. 432, 447-48, 37 L. Ed. 2d 706, 718 (1973)). Here, the officers had no underlying design to find drugs linked to Perry or to make a drug arrest of Perry. Indeed, they hoped to deter Perry from taking drugs completely to protect the polygraph process from pollution. Moreover, they were involved in legitimate procedures to locate an important source of information. In attempting to locate Perry, they followed a routine procedure of checking places that they knew he frequented. After checking unsuccessfully two known drug-dealing locations, the police proceeded to a vacant building defendant often frequented. Finding the door unlocked and ajar, they entered. Their entry into 1189 Landsdowne Street was legitimate and rightfully reflected the objectively-reasonable actions of well-trained police officer.
Defendant's claim that Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639 (1980), compels a different conclusion lacks merit. Unlike the officers here, those in Payton entered "in order to make an arrest." Id. at 576, 63 L. Ed. 2d at 644. The officers here entered to find Arthur Perry so that they could perform a polygraph test. In Payton, police pried open a door to search for a felon and for evidence of a felony. Here, the officers walked through the open front door of an apparently-vacant building, with no suspicion that a crime had been or would be committed. But for the fact that defendant himself volunteered that he possessed drugs and intended to use them, the officers would have asked him merely to come with them for the polygraph test. However, once he volunteered that information freely, handed them a syringe and a drug spoon, and the officers saw the drugs in plain view atop a bureau after their legal entry on another matter, they had no duty to retreat to a neutral magistrate for an arrest or search warrant. See Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983); State v. Ercolano, 79 N.J. 25, 34-35 (1979); State v. Contunsi, 44 N.J. 422 (1965).
Moreover, defendant cannot claim any disappointment of his expectation of privacy. Although we recognize that "the Fourth Amendment has drawn a firm line at the entrance to the house" preventing a warrantless entrance to search or arrest absent exigent circumstances, Payton, supra, 445 U.S. at , 63 L. Ed. 2d at 653, it has not erected a barrier to officers entering for other legitimate purposes. Because the heart of the "plain view" doctrine is the unrelated, legitimate purpose that occasions one's presence near the contraband, seizures subsequent to lawful entry fit within the "plain view" doctrine and are not prohibited by Payton. State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984) (observation of evidence in plain view does not constitute a search).
In addition to the foregoing, other reasoning demonstrates that Perry's expectation of privacy was not impinged. He was
in a house, not his own, that appeared vacant and whose front door was not only unlocked but open. The open door, uncertain ownership, and vacant nature of the edifice create a situation far from unambiguous and make it difficult to give its transient user a constitutionally-reasonable expectation of privacy. Moreover, the evidence shows that defendant's own subjective expectations were not thwarted by the officers' entrance. Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 588 (1967) (Harlan, J. concurring) (the resolution of fourth-amendment issues turns on whether the individual exhibited an actual, subjective expectation of privacy). He "expected" their arrival, wished to continue cooperating with them in the murder investigation, and did not object to them ascending the stairs once they entered and he saw them.
Because we find that counsel could reasonably have concluded that any effort to suppress the drug evidence would be unsuccessful, arguments growing out of the "fruit of the poisonous tree" doctrine for suppressing his post-arrest statement also lack vitality. Perry, although technically under arrest for events occurring at 1189 Landsdowne, voluntarily made statements and kept a scheduled interview unrelated to his drug arrest. New York v. Harris, U.S. , 109 L. Ed. 2d 13, 21-22 (1990) (the Supreme Court held that violation of fourth-amendment prohibition of warrantless and non-consensual entry into a suspect's home in order to make a routine felony arrest did not affect the admissibility of statements made by defendant after he had been taken from his home to the police station). Here, the separately-scheduled interview was "sufficiently independent to dissipate the taint of [any alleged] illegal conduct." State v. Johnson, 118 N.J. 639, 653 (1990).
2. Defendant's Taped Confession was Voluntary and Properly Admitted into Evidence
Additionally, defendant contends that his confession should also have been suppressed because it was obtained in
violation of his rights under the fifth amendment. Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, reh'g denied, 452 U.S. 973, 69 L. Ed. 2d 984 (1981), prevents police-initiated custodial questioning of a suspect once that person has expressed a desire to deal with police only through counsel. Defendant's assertion that Edwards provided grounds for the suppression of all his statements is meritless. Hence, counsel's decision not to move to suppress cannot constitute ineffective assistance of counsel.
The initial conversations between defendant and police were neither custodial nor police-initiated. On both March 2nd and 3rd, Perry spoke with police but was free to leave at any time. He did in fact leave each day before completing the planned interviews. He was also repeatedly told he need not cooperate, yet freely returned to do so. One could not conclude that he was deprived of "his freedom of action in any significant way," Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706 (1966), or that he was subject to formal arrest or the restraint of freedom of movement normally associated with formal arrest. California v. Beheler, 463 U.S. 1121, 77 L. Ed. 2d 1275 (1983). Neither the timing, atmosphere, police conduct, or defendant's response to that conduct at that time resembled the conduct criticized in the Supreme Court's latest application of the Edwards rule. Minnick v. Mississippi, U.S. , 112 L. Ed. 2d 489 (1990) (where a defendant subject to custodial interrogation repeatedly made unequivocal requests to proceed only through counsel and was told that he could not refuse to talk to federal and state interrogators, his statements should be suppressed for violation of his fifth-amendment rights as protected by Edwards).
Nor was his questioning on March 4 the police-initiated. Despite the fact that Perry's March 4th statements were doubtless made in a custodial context (due to his arrest on drug charges), they are still admissible. He "'evinced a willingness
and a desire for a generalized discussion about the investigation.'" State v. Fuller, 118 N.J. 75, 82 (1990) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 77 L. Ed. 2d 405 (1983)). He repeatedly expressed both his desire to assist with the murder investigation and his understanding that he did not have to cooperate. He never stated that he wished to deal only through counsel; in fact, he explicitly stated on March 3rd that he would proceed without counsel. See Michigan v. Mosley, 423 U.S. 96, 101 n.7, 46 L. Ed. 2d 313, 320 n.7 (1975) (stating that suspect's decision to cut off questioning, unlike a request for counsel, does not raise presumption that the suspect is unable to proceed without lawyer's advice). Defendant returned to the police on the successive days expressing his desire to take the polygraph to clear himself of the murder and waived his rights before doing so on each day including March 4th. As he initiated the conversation himself, he does not fit within the Edwards rule.
Nor does the record show that defendant's waiver of his right to counsel was involuntary or unintelligent. The prosecution has shown that Perry's waiver of the right to counsel and to remain silent was made "voluntarily, knowingly, and intelligently." See State v. Bey III, 112 N.J. 123, 134 (1988) (Bey II). He repeatedly expressed his eagerness to take the test to prove himself innocent. He repeated his desire to proceed without an attorney. The State met its burden under State v. Wright, 97 N.J. 113, 123 (1984), and Bey II, supra, 112 N.J. at 134, by showing that his March 4th confession was not tainted by any drug use that day, by any prolonged questioning or abuse, or by any confusion over his right to remain silent.
Likewise, the State did not violate any of the rules springing from Edwards. It cannot be said that Perry requested or chose to proceed only through counsel. In fact, he admits that he was very well treated and voluntarily spoke with police. This differs radically from Minnick, who claimed both mistreatment and persistent pressure. These facts assure "that the
coercive pressures of custody were not the inducing cause" of his confession." Minnick, supra, 112 L. Ed. 2d at 499. Counsel's refusal to contest the admissibility of a statement under such conditions was neither unreasonable nor prejudicial.
Under the Strickland/Fritz standards, defendant's right to counsel was not violated by his attorney's failure to move to suppress evidence under the fourth and fifth amendments.
Where defense counsel's failure to litigate a Fourth [or Fifth] Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth [or Fifth] Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.
[Kimmelman v. Morrison, 477 U.S. 365, 375, 91 L. Ed. 2d 305, 319 (1986)].
Since Perry cannot establish that his fourth or fifth amendment claim is meritorious, he has not cleared the first hurdle in establishing that he received ineffective assistance of counsel.
Defendant claims that counsels' reliance on "insubstantial defenses" in lieu of other stronger theories and their failure to investigate and present other relevant exculpatory evidence also constituted ineffective assistance of counsel in the guilt phase. We disagree. We will not second-guess counsel's reasonable adoption of one of the "countless ways to provide effective assistance in any given case." Strickland v. Washington, supra, 466 U.S. at 689, 80 L. Ed. 2d at 695. In a case like this one, in which the State's case rests nearly exclusively on a confession given by the defendant, counsel's decision to pursue a line of defense (reasonable doubt) that undercuts that confession's scientific and circumstantial reliability is not an unreasonable one. State v. Hightower, 120 N.J. 378, 412 (1990). Counsel believed that only by attacking the confession could defendant prevail. Eschewing equally-problematic alternatives such as self-defense, passion/provocation
manslaughter, an intoxication defense, or implicating Clark Miller is not constitutionally-deficient representation.
Defendant's contention that counsel could not reasonably have rejected such alternatives because he did not adequately investigate the potential of each lacks persuasiveness. Although limited, his investigation here fell no-where near the depths of deficiency found in State v. Savage, supra, 120 N.J. at 618-622.
Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. [Strickland v. Washington, supra, 466 U.S. at 690-91, 80 L. Ed. 2d at 695.] Defendant has not shown counsel to have fallen below that mark of adequate acumen. Therefore, he has failed to satisfy the objective-unreasonableness prong of the Strickland test.
Likewise, we reject defendant's claim that the cumulative effect of counsels' failures constituted a constitutional deprivation of effective assistance of counsel at the guilt phase even if no single instance itself does. Regardless of the choices that could have been made by trial counsel, those choices involved trial strategy in "a difficult case, [in which] defense counsel attempted to highlight what few weaknesses there were in the State's case." State v. Hightower, supra, 120 N.J. at 412. We will not base a decision that counsel was ineffective on such subjective standards.
Defendant alleges for the first time on appeal that inadequate voir dire denied him his right to a fair trial by an
impartial jury in violation of the federal and state constitutions. Specifically, defendant claims that the trial court's voir dire failed to elicit sufficient information concerning the jurors' attitudes toward the death penalty and toward racial prejudice to enable counsel intelligently or effectively to exercise his right to challenge. Our independent review of ...