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State v. Dixon

Decided: July 25, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PHILLIP DIXON, DEFENDANT-APPELLANT



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

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

O'hern

In this capital case the State does not disagree that the death sentence must be vacated. Point XIII of the State's brief summarizes the point:

Defendant contends that the trial court's charge during the penalty phase with respect to the jury's consideration of mitigating factors was erroneous in that it required the jury to unanimously find an alleged mitigating factor before it could be considered. The State is constrained to agree that the court's charge with respect to the need for juror unanimity before finding the existence of a mitigating factor violates the principles subsequently enunciated in Mills v. Maryland, 486 U.S. 367 [108 S. Ct. 1860], 100 L. Ed. 2d 384 (1988), and State v. Bey II, 112 N.J. 123, 159-60 [548 A.2d 887] (1988). [Footnote omitted.]

Acknowledging that defendant's death sentence with respect to the underlying murder must, therefore, be vacated, the State seeks to have us remand the matter for a new capital-sentencing proceeding unless the Court determines that the murder conviction does not establish death eligibility. In that circumstance, the State asks that the conviction of non-capital murder be affirmed and the case be remanded for resentencing on the murder count to a term of imprisonment, which for murder is between thirty years and life with a minimum of thirty years

without possibility of parole. N.J.S.A. 2C:11-3b. Defendant, in addition to challenging the death sentence on the grounds that the trial court's charge required juror unanimity with respect to the mitigating factors, asserts numerous challenges to the underlying convictions of murder and the related offenses. We find that the conviction for murder did not establish death eligibility, but affirm that conviction in all other respects. Pursuant to the State's election so to proceed, we therefore remand the cause for imposition of the non-capital murder sentence.

I

The case arises from the brutal murder of a thirteen-year-old girl as she walked home from school. To her last moment, she fought against her stronger assailant. The marks she left on his body and the telltale presence of fibers drawn from his clothing, along with eyewitness testimony of fellow students, sealed the case against her assailant, defendant, Phillip Dixon.

As the young girl, Tanya, walked home from school on Friday afternoon, February 22, 1985, several of her fellow students saw defendant "on top of" her in an area of underbrush along a path between the children's school and homes. (The area was in the Borough of Woodlynne, although the children attended Camden High School.) Although at first the other students thought that there might have been nothing more than an innocent encounter between the two, their suspicions deepened when Tanya did not soon arrive home. The children alerted Tanya's mother of the fact that they had seen Tanya with defendant, an eighteen-year-old fellow student at the high school. Her mother went to defendant's house in search of Tanya, but he was not home.

The police were informed of the missing child. An intensive search disclosed her body approximately one hundred yards from the place of the sighting by the students. Her partiallynude body had been dragged through the underbrush into a

creek. Her body was lodged in the water underneath a car seat and other discarded refuse. Only a foot was showing above the surface of the water.

After his encounter with the victim, defendant went to his cousin's home, where he changed his clothes. He claimed that he had been in a fight and called his brother to bring the change of clothes. Later that afternoon, defendant returned home, where his mother told him that the victim's mother had been there asking about Tanya. Defendant again changed his clothes, and that evening went with his brother to Philadelphia. Later that night he went to his grandmother's home in Hempstead, Long Island. Having been informed by the school children that Tanya had last been seen with defendant, the police put out an all-points alert for him. They soon learned that he was in Hempstead at his grandmother's home. The Woodlynne police called the Hempstead police, who arrested defendant on Sunday afternoon, February 24, 1985.

Defendant gave an oral confession to the Hempstead police. A Hempstead officer summarized defendant's statement as follows: On Friday afternoon defendant was walking with his mother to a local bank. He remembered that he needed money to see a movie later, so he returned home to get some money. While returning, he was walking along a path and saw a young girl. He decided to take her pocketbook. He chased her, grabbed her, and forced her down to the ground in a "weeded [sic] area," at which point she was screaming and struggling. She eventually flipped onto her stomach and he straddled her with his knees. But she screamed as he tried to take her pocketbook. She looked at him and said "I know you, I've seen you." As she continued to scream, he reached for "a spike or a nail" lying on the ground and hit her on the head with it. Defendant did not know why he struck the girl and could not remember the amount of pressure he used or whether the nail had penetrated the girl's head. He said that the girl had been screaming "like in the movie '10 to Midnight.'" When the officer said that he had not seen the movie, defendant said, "[I]t

was like in that movie when the girl in the movie kept screaming and she wouldn't stop screaming and the guy stabbed her."

A grand jury indicted defendant for the murder of Tanya as well as for a variety of other offenses, including robbery, aggravated criminal sexual contact, hindering apprehension (by concealing her body, destroying evidence, and fleeing), and various other offenses.

At trial, the State produced the school children who had seen defendant with Tanya, on top of her, apparently engaged in a scuffle. They recalled that he wore a camouflage jacket. Another witness described seeing defendant drag Tanya into the woods towards the water. A fiber expert described the fibers found on her body as being identified with defendant's cap. A sneaker imprint was found at the scene that matched the Nike sneakers seized at defendant's cousin's home. A pathologist said that the victim had been struck by a pointed object, that the blow to Tanya's head had pierced her brain, and that death was inevitable from the blow, although she was probably alive when her body was submerged under the water. Two scenes or segments from the movie "10 to Midnight" were shown in which a perpetrator in dissimilar circumstances was stabbing a screaming young woman.

Defendant took the stand on his own behalf. He denied that he had committed the murder, asserting that he had never given the alleged confession and that on the date of the crime he had been wearing a blue Army jacket and red suede Puma sneakers. The Hempstead police officer who had interrogated him testified that defendant had told him that he had been wearing those clothes on Friday afternoon.

The jury convicted defendant of most of the counts but not the robbery count. At the sentencing proceeding, the State charged two aggravating factors: that the murder had involved torture, aggravated battery, or depravity; and that the murder had been committed to avoid apprehension. The jury unanimously found only two mitigating factors and imposed a sentence

of death. Defendant appeals to us as of right under Rule 2:2-1(a)(3).

II

Pretrial Issues

A. Composition of Grand and Petit Juries

Defendant contends that the Camden County jury-selection system violated his rights to a jury drawn from a fair cross-section of the community and to equal protection of law, and also violated his statutory right to a randomly-drawn representative jury, in violation of the provisions of N.J.S.A. 2A:70 and :71.

1. The Constitutional Issues

In evaluating the constitutional challenge, we briefly review the principles set forth in State v. Ramseur, 106 N.J. 123, 215-38, 524 A.2d 188 (1987). Without restating the principles in detail, we may summarize by stating that under the constitutional guarantees, selection of both grand and petit juries must be free from any taint of discriminatory purpose and the jurors must be drawn from pools that represent a "fair cross-section of the community."

To prove either an equal-protection or a fair-cross-section claim, defendant must (1) identify a constitutionally-cognizable group, that is, a group capable of being singled out for discriminatory treatment; (2) prove substantial underrepresentation over a significant period of time; and (3) show discriminatory purpose either by the strength of his statistical showing or by showing the use of racially non-neutral selection procedures to support the inference of discrimination raised by substantial underrepresentation. State v. Ramseur, supra, 106 N.J. at 215-16, 524 A.2d 188.

In sum, we primarily focus on the cognizability of the group in question, the substantiality of the underrepresentation, and the possible causes of it.

For purposes of this appeal, we shall accept that the assertedly underrepresented minorities (Blacks, Hispanics, and Puerto Ricans) would meet the first prong of the test. We shall also accept, for purposes of this appeal, the statistics set forth in defendant's brief with respect to the representation of those minorities. The data are as follows:

UNDERREPRESENTATION OF MINORITIES

Camden County

DATA STANDARDS OF REPRESENTATIVENESS

------------- --------------------------------

Qual. Stat.

Pop'n. Pool Absolute Comparative Sign.

GROUP (%) (%) (%) (%) (sd)

Blacks 13.37 9.57 3.8 28.42 2.27

Hispanics 3.27 .93 2.34 71.56 2.59

Puerto Ricans 2.65 .47 2.18 82.26 3.28

In Ramseur we explained the meaning of those various standards of representativeness. 106 N.J. at 219-27, 524 A.2d 188. We shall not repeat them here except in the simplest terms. Absolute disparity measures the difference between the proportion of the subject group in the general population and its proportion to the jury pool, that is, the qualified list. Comparative disparity builds on that figure by using the absolute disparity figure and constructing a ratio to measure the magnitude of the disparity given the difference in population size. For example, a four-percent absolute disparity in a fifty-percent population represents an eight-percent comparative disparity, whereas that same four-percent absolute disparity in a population of eight percent is a fifty-percent comparative disparity. The comparative-disparity standard is more likely to register underrepresentation of smaller groups. The smaller the group, the more significant is any deviation. The third approach, the statistical significance test, measures the likelihood that aspects of the selection process do not operate randomly. That test is an entirely statistical analysis in which the statistician assumes

absolute neutrality in the selection process and measures the statistical likelihood of deviation from the expected. In Ramseur, we gave the following example. The jury-selection process in which two groups are being compared can be likened to filling a box with a population of one thousand slips of paper of which six hundred are pink and four hundred are grey, and having someone randomly select a sample of one hundred slips. The expected number of pink slips would be sixty and the expected number of grey slips would be forty. That is, in any drawing there would be a sixty percent probability of drawing a pink slip and a forty percent probability of selecting a grey one. However, a statistician would not be surprised if the number of pink slips deviated from the expected. Statisticians measure that deviation by a formula that enables them to tell whether the result is so far from the expected as to demonstrate the result was not random or by chance. A complex mathematical formula determines that standard deviation. For example, in the case of the one-hundred-slip sample, a statistician expects that the standard deviation would be plus or minus 4.8 slips. (Calculations omitted, see Ramseur, supra, 106 N.J. at 221 n. 44, 524 A.2d 188.) If the result of a drawing were to yield only thirty pink slips, that would be approximately six standard deviations (6 X 4.8) away from the expected. A statistician assumes that a result more than two or three standard deviations from the expected would be suspect.

In this case the statistics submitted with respect to underrepresentation of minorities are not disturbing except with respect to the comparative disparity of Hispanics and Puerto Ricans. As we noted in Ramseur, "if these cases [dealing with underrepresentation of groups] have a common thread, it is that a comparative disparity well over fifty percent is strong evidence of underrepresentation cognizable under the sixth and fourteenth amendments." 106 N.J. at 220, 524 A.2d 188 (quoting State v. Lopez, 107 Idaho 726, 733, 692 P. 2d 370, 377 (Ct.App.1984)).

With respect to the comparative disparity concerning underrepresentation of Hispanics and Puerto Ricans, we are satisfied that that does not demonstrate a constitutional underrepresentation because of the very small percentage of the population pool thereby represented. A comparative disparity of about fifty percent may or may not be adequate to show such underrepresentation, depending in part on the size of the group in question. State v. Lopez, supra, 107 Idaho at 733, 692 P. 2d at 377. The absolute disparity becomes magnified when converted to a measurement of comparative disparity because of the smallness of the sample used.

The statistical-significance test confirms the inefficacy of the comparative-disparity figure. In the case of Hispanics and Puerto Ricans, the statistical significance of the discrepancy is very close to the two or three standard deviations from the expected and thus is not constitutionally suspect.

But even were those numbers themselves to straddle the borderline of substantial underrepresentation, we would look to the circumstances surrounding the statistical showing to determine its full constitutional import. Generally speaking, when jury-selection systems have been found to be constitutionally underrepresentative on the basis of statistical showings of underrepresentation, objective selection criteria such as voting registration and drivers' licenses, as were used in this case, are not present. See State v. Ramseur, supra, 106 N.J. at 225, 524 A.2d 188. In addition, courts have looked at the time period over which violations are alleged. That inquiry goes to the existence of a history of exclusion. In this case, as in Ramseur, we have evidence based on only one survey of 500 jurors from a 1984 mailing. Not only does the survey fail to cover a significant period of time, but reforms were apparently made to the system the following year, rendering the data and resulting conclusions at least partly outdated.

Given the borderline nature of the disparities shown, we do not find inadequacies that rise to constitutional dimension.

2. The Statutory Issues

N.J.S.A. 2A:70-4 requires the assignment judge of a county to merge the lists of registered voters and holders of motor vehicle licenses to compile a single list from which all jurors shall be selected.

Defendant makes specific objections that he asserts demonstrate such a deviation from established statutory requirements that the indictment must be dismissed. For purposes of this appeal we shall accept defendant's version of the record. (The State will be free in any collateral proceedings to dispute these assertions.)

(1) Elimination of Zip Codes. In the mailing of questionnaires before the spring of 1985, seven or eight zip codes were eliminated from the drivers' license lists. The population within Camden County for those zip codes represented over one-fifth of the whole county population. The various jury-selection officials agreed that most of the zip codes were eliminated because they embraced areas that fell partially outside of Camden County.

(2) Failure to Eliminate Duplicates. This is the "matchmerge" problem that we described in State v. Gerald, 113 N.J. 40, 130-31, 549 A.2d 792 (1988). The computers fail to recognize that some people use different names on voting or driver lists, resulting in two "Jones" at the same address.

(3) History File Exclusion. Once a juror in Camden has been excused for one reason or another, the name is put in a "history file." Often a juror who may be disqualified at one time (as for pregnancy) could be later qualified, but insufficient attention was paid to the "history file" to restore names to the eligible list. The result, claims defendant, is that as many as two-thirds of the eligible jurors are in that category of ineligibility.

(4) Inactive-Voter File. The inactive-voter file was used to cull names from the jury list, but the fact that one does not vote does not mean that one is not eligible to serve as a juror. Although there may be some who are removed from voting lists

because they have died or moved, there was an insufficient explanation of why that practice should be followed, especially in the case of persons whose names appeared on the motor-vehicle lists.

(5) High No-Response Rate. Defendant points to inaction by the jury commissioners in the face of a persistently high no-response rate of up to 32.8%. That means that 32% of the people to whom questionnaires had been sent simply failed to return them or otherwise to show why they should be included or excluded from the juror lists. A court directive requires that a no-response rate above 15% be reported to the assignment judge.

(6) Improper Disqualification. Defendant claims that the non-retention of the received questionnaires of disqualified jurors made it impossible to resolve conflicting testimony regarding (1) medical disabilities regularly allowed without documentation; (2) exemptions for care of minor children; (3) exclusion of students who were county residents; and (4) exclusion of teachers even during summer months. That was described by defendant as making it very easy for county residents to avoid jury service and compounds the other defects set forth in his brief.

In State v. Ramseur, supra, 106 N.J. 123, 524 A.2d 188, we considered whether discrepancies in statutory or administrative directives with respect to jury selection necessitated the dismissal of an indictment. We repeat what we said there: "We do not construe our state's statute as requiring dismissal of the indictment whenever the statutory commands are breached, regardless of the nature or effect of the violations or the intent of those who committed them." Id. at 231-32, 524 A.2d 188. The judicial power to dismiss an indictment is not to be exercised except on the clearest and plainest grounds, and an indictment should stand unless manifestly deficient or palpably defective. State v. Wein, 80 N.J. 491, 501, 404 A.2d 302 (1979); State v. Weleck, 10 N.J. 355, 364, 91 A.2d 751 (1952). We said

that violations of our jury-selection regulations should warrant a dismissal of an indictment only "where they substantially undermine the randomness and objectivity of the selection mechanism or cause harm to the defendant." State v. Ramseur, supra, 106 N.J. at 232, 524 A.2d 188.

With respect to the selection of petit juries, we recognize that in some circumstances the special fundamental role played by the petit jury in our system of criminal justice may call for reversal of the conviction because of improper selection procedures, even in the absence of a showing of prejudice. State v. Kociolek, 23 N.J. 400, 406, 129 A.2d 417 (1957); State v. Wagner, 180 N.J. Super. 564, 567, 435 A.2d 1190 (App.Div.1981). In Kociolek, the trial court had employed one of its regular criminal panels, contrary to a statute requiring the special drawing of a forty-eight-member panel prior to trial for murder. A majority of the Court agreed that that violation alone would have required reversal, even absent a showing of actual prejudice. The Court described the statutory requirement as "a course of procedure so imperative in expression as to bar waiver by the defendant or his counsel where the indictment is for treason or murder." 23 N.J. at 406-07, 129 A.2d 417.

State v. Wagner, supra, involved an even more blatant violation of the statutory provisions governing the selection of petit juries that required jurors' names to be "[d]rawn from the box, one at a time." 180 N.J. Super. at 567, 435 A.2d 1190 (quoting N.J.S.A. 2A:74-1). The trial court simply seated the first fourteen jurors to enter the courtroom and replaced excused jurors by calling on other jurors seated in various rows by "going right down the row." Id. at 566, 435 A.2d 1190. Those are such plain and blatant violations of law that they cannot be condoned.

But what we have here are inefficiencies rather than invidiousness. There is no suggestion whatsoever that any of the failings were in any way intended to undermine the randomness of the jury-selection process. Underrepresentation is not defined

by comparing the representation that "would have occurred randomly" with the actual representation of the group on the jury. Rather, "underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors." Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498, 510 (1977). In addition, although defendant is indeed entitled to have his challenge based on the array and not the individual panel chosen, we note simply that of the twelve-person panel actually chosen for the trial and penalty phases, two of the five men were black and two of the seven women were black. Of the four alternates, all women, one was black.

Although the procedures used obviously implicated the randomness of the selection process, there is no showing that they substantially undermined the randomness principle. When, as here, the purpose of the official's action was not impermissibly to exclude members of a cognizable group, the asserted statutory violations do not call for a dismissal of the indictment or a reversal of the conviction. Defendant interprets the opinion of the court below as not calling for a correction or improvement in the noted deficiencies, but we are certain that the motion judge who now sits as the assignment judge intended his opinion to have that effect. When he said that the "Camden County Selection Process had to be corrected," but that the "deviations from the New Jersey Jury Selection Statutes directives do not rise to a level constituting grounds for relief," we are certain he intended that changes be made.

In sum, although the noted deficiencies may be considered somewhat more than merely technical, here, as in State v. Long, 119 N.J. 439, 469, 575 A.2d 435 (1990), and State v. Gerald, supra, 113 N.J. at 131, 549 A.2d 792, there was no evidence that the grand- and petit-jury panels, as composed, were not representative of the community, nor was there any suggestion that the independence of the grand or petit jury had been compromised. None of these practices reduced a minority's representation to "impotence" or "restrict[ed] unreasonably

the possibility that the petit jury will comprise a representative cross-section of the community." State v. Gilmore, 103 N.J. 508, 529, 511 A.2d 1150 (1986). The methods used were in no sense an attempt to undermine or inject invidious discrimination into randomness. The goal was an objectively random list that reached substantially all eligible sectors of the juror pool.

B. The Validity of the Confession

Defendant contends that he was not given full and effective warning of his constitutional right to remain silent as he was not informed that he had a continuing opportunity to exercise that right, and he was never told that he could terminate any interrogation. In addition, he contends that although he was not informed of his right to terminate questioning, the police had reason to believe he was attempting to exercise that right when, after having answered questions for a time and after having agreed to make a written statement, he refused to sign anything. The Hempstead police officers testified to a marked change in defendant's attitude following a telephone conversation with his grandmother, after which he was "not cooperative" and became "somewhat hostile." Defendant contends that his actions constituted assertion of his right to remain silent and, as part of their obligation scrupulously to honor defendant's fifth-amendment rights, the police should have made an effort to ascertain the significance of the distinct change in attitude. Defendant asserts also that he requested counsel at the station house, a request that would have prevented the police from questioning him before counsel was provided. That claim was not raised below and is part of a claim of ineffective assistance of counsel, which we discuss in Point III(F) hereof, infra at 259-262, 593 A.2d at 284-285.

When a suspect makes a statement that arguably amounts to an assertion of Miranda rights, and the interrogating agent recognizes that the statement is susceptible of that construction, police questioning concerning the crime should immediately cease and the officer then should inquire of the suspect

about the correct interpretation of the statement. State v. Bey II, supra, 112 N.J. at 136, 548 A.2d 887.

Each side presents a different version of the interrogation. As noted, on Sunday afternoon, February 24, 1985, Detective McLaughlin of the Nassau County police department was notified of a teletype from the Woodlynne, New Jersey, police department. The teletype indicated that there was a warrant for defendant's arrest and set forth a description of defendant and his probable location. Based on the information contained in the teletype, McLaughlin proceeded to the specified location.

When McLaughlin arrived at the apartment house, he found the front door open and other police officers already present. McLaughlin spoke privately with defendant's uncle, Robert Newbill, explaining that defendant was sought in connection with a homicide. Defendant surrendered to McLaughlin, who handcuffed him, informed Newbill that defendant was being taken to headquarters, and left the apartment with defendant. McLaughlin testified that he informed defendant of his rights while en route to the police station: that he had the right to remain silent, that anything he said could be used against him, that he had a right to an attorney, and that if he could not afford one, an attorney would be provided for him. At police headquarters, defendant was taken to an office in the basement. Detective Martin Alger of the Homicide Squad was notified. Newbill came to the police station. McLaughlin informed him that defendant was talking to homicide detectives. Newbill asked if he could see defendant and was told that he could not at that time. According to the police, Newbill made no mention of securing an attorney.

Detective Alger conducted the interrogation. He informed defendant of his rights from memory. He did not produce a card, and he concedes that he did not specifically inform defendant that he had a right to terminate questioning at any time. He asked defendant if he could speak with him without having an attorney present. Defendant agreed to speak to him. At

about 6:00 p.m., defendant provided the narrative of the offense that we set forth as summarized by a Hempstead police officer in our recital of the facts.

The trial court, after considering the totality of the circumstances, properly concluded that defendant's statements were voluntarily made after a knowing and intelligent waiver of his constitutional rights and were not the product of interrogation that resulted in the overbearing of defendant's will. See State v. Bey II, supra, 112 N.J. at 134-35, 548 A.2d 887 (State must establish the voluntariness of the confession beyond a reasonable doubt).

Defendant maintains that when his demeanor changed following the conversation with his grandmother, the officers should have made an effort to ascertain the significance of the distinct change in his attitude instead of simply ignoring that change and continuing their interrogation. The police testified that defendant became "very tense, very agitated," and that he refused to write anything. It is not reasonable to construe defendant's behavior as a cutoff of questioning. Here defendant was twice informed of his rights. Included in those warnings was the information that if defendant spoke with the detectives, anything he said could be used against him. Defendant knew that he had been arrested for homicide. That he was not specifically informed that he was subject to the death penalty does not disqualify the confession. Defendant was not a juvenile whose age is relevant to a voluntariness determination. Nor was it fatal that he was not told in so many words that he had the right to terminate questioning at any time, although obviously it is preferable that such a warning be specifically stated. It is the substance of the warning, however, that counts. Duckworth v. Eagan, 492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989); State v. Melvin, 65 N.J. 1, 13-14, 319 A.2d 450 (1974). Defendant was plainly told that he had the right to remain silent and not to incriminate himself.

C. Voir Dire

Defendant contends that the jury voir dire in this case was so inadequate that he was denied his right to a fair trial by an impartial jury. In addition, defendant contends that the court's preliminary voir dire instructions informed the jurors of what they needed to say in order to avoid sitting in this case.

Before prospective jurors were questioned, they were required to complete questionnaires that provided the court with information about their personal lives or their familiarity with defendant, counsel, or witnesses; their ability to consider impartially the evidence presented; and their general ability to serve as jurors.

Defendant contends that by instructing the jurors how they would become disqualified, the court created a danger that some of the potential jurors would feign an excusable position on the death penalty in order to avoid serving on this capital jury. He objects in particular to a portion of the preliminary voir dire in which the court summarized the Adams-Witt test:

You are disqualified only if your view is so broad and firmly held that you will not be able to follow my instructions as to the law at the close of the trial. In short, your views concerning the death penalty may disqualify you only if they would prevent or substantially impair your ability to decide this case fairly and impartially based on the evidence presented to you in this courtroom, and in accordance with the law which the court will instruct you.

See Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), and Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980).

Defendant argues that in State v. Williams II, 113 N.J. 393, 550 A.2d 1172 (1988), the trial court gave the potential jurors virtually the identical preliminary voir dire instruction as provided in this case and the Court emphatically disapproved. We stated there that an instruction that effectively tells the juror what answers could lead to automatic excusal and what responses would avoid excusal "unwisely put the potential juror in the position of determining whether he or she met the legal requirements to serve on a jury." Id. at 412, 550 A.2d 1172.

Defendant contends that of the sixty-three prospective jurors who were questioned about their death-penalty attitudes, nine were excused "due to their scruples against execution," claiming that they "said what the court told them it had to hear for them to be excused due to their death-penalty views."

In addition, defendant asserts that the overall quality of the voir dire was insufficient to enable counsel to exercise their peremptory challenges, suggesting that the responses to the generalized questions of the court resulted in virtually no information that would distinguish one prospective juror from another. Defendant asserts that because the court did not ask open-ended follow-up questions, it was impossible for the court below, and it remains impossible for this Court, to recognize the differences in the opinions of the separate jurors. Specifically, not one of them was asked whether the sexual assault and murder of a teenage girl would be a circumstance that would influence the juror concerning the imposition of the death penalty.

In short, defendant contends that there was no "thorough and searching inquiry" by the trial court into each individual's attitude concerning the death penalty and that the jurors were inadequately screened concerning publicity about the case. See Williams II, supra, 113 N.J. at 413, 550 A.2d 1172 (death qualification process in capital-murder prosecution requires "thorough and searching" inquiry into "jurors' opinions and biases").

Our independent review of the voir dire reveals that as a whole the voir dire was sufficiently probing in its attempt to weed out any prospective jurors who indicated through their answers that the facts of this case might impair their ability to decide defendant's guilt or innocence or to determine the proper sentence.

Again we note that this voir dire, like others that we have seen, acquired a rhythm of its own, as the jurors' attitudes became more apparent to court and counsel. There is one

quality to this voir dire that differs from others: it displayed much more limited participation by counsel in the voir dire process. As is often the case, the trial court conducted almost all of the questioning. In State v. Moore, 122 N.J. 420, 585 A.2d 864 (1991), we reviewed various voir dire methods and explained the processes that we believe best produce death-qualified jurors, particularly encouraging judges to be open to the suggestions of counsel. Id. at 455-56, 585 A.2d 864 (citing State v. Long, supra, 119 N.J. 439, 575 A.2d 435).

We believe, however, that the process here enabled counsel to select a fair and impartial jury. Jury selection took place over a six-day period. The court employed the "struck-jury system" in which it qualified approximately fifty prospective jurors, thus allowing each side to exercise peremptory challenges from a qualified pool. The first step in the process was a general orientation given to each day's panel. In that orientation the court described the nature of the case, the age of the victim, the charges against defendant, and the two-step process in capital cases.

At the time of this trial, the United States Supreme Court had recently decided Wainwright v. Witt, supra, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841. In that case, the Court directed that the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is whether those views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Id. at 424, 105 S. Ct. at 852, 83 L. Ed. 2d at 851-52. The trial court here gave the jurors a brief summary of that ruling, now objected to by defendant. However, the court had made it clear to the jurors that "I've described our effort in a very general fashion, because it will assist you in understanding our inquiry with respect to your views concerning the imposition of the death penalty."

Following that general orientation, the jurors were excused to complete a questionnaire before returning to the courtroom for voir dire. That questionnaire is set forth in the appendix to defendant's brief and asks a number of specific questions of the jurors. When the jurors had been returned individually to the courtroom, the court's pattern was to review each of the questions in summary fashion with the juror and to question the jurors with respect to any problematic answers on the questionnaire. In its general orientation, the court had made it clear to the jurors that there are "no right or wrong answers" to the questions. It was, as he said, an attempt to obtain qualified jurors.

In the course of interrogating each juror, the court encouraged candor and frankness, expressing these types of sentiments to the jurors: "Tell me straight out * * *. Tell me like it is"; "I'm looking for honest, frank and candid answers"; that he would like it "straight from the shoulder"; and in the case of a disqualified juror who had expressed some ...


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