On appeal from the Superior Court, Law Division, Camden County.
For affirmance in part and reversal in part -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. Concurring in part and Dissenting in part -- Justice Handler. The opinion of the Court was delivered by O'Hern, J. Handler, J., Concurring in part and Dissenting in part.
The central question in this capital appeal is whether a jury may impose a sentence of death on the basis that the murder was committed in the course of a felony without being permitted to consider, in the guilt-innocence phase of the capital trial, the non-capital verdict of felony murder. We find such a procedure to be constitutionally defective. The right to trial by jury includes the right to have the jury consider "all of the possible offenses that might reasonably be found" from the facts of a case. State v. Ramseur, 106 N.J. 123, 271 n. 62, 524 A.2d 188 (1987). The State is not free to select which verdict it will permit a capital jury to return. By seeking a sentence of death predicated on an underlying felony committed in concert with the murder, the State necessarily affirms that there is a rational basis in the evidence for the jury to have considered the non-capital verdict of felony murder. Here, however, the State did not submit felony murder to the jury. Because the jury was not permitted to consider "all of the possible offenses," defendant was denied the right to a fair trial on the issue of his death-eligibility. The sentence of death must be vacated. The convictions of murder and related offenses entered in the guilt-phase of the trial are otherwise affirmed.
In a long series of cases, we have explained that a jury must decide the death-eligibility of capital defendants. The fact-finding role of a jury is especially crucial when, as in this case, the State and the defendant disagree on almost every fact alleged. The State asserts that defendant killed the victim, Lawrence Talley, during the course of a drug transaction and that defendant then stole drugs from the body of the victim. In that regard, the case evokes the pattern that we saw in State v. Perry, 124 N.J. 128, 590 A.2d 624 (1991), in which the defendant killed his drug supplier. The case differs markedly
from Perry, though, in that defendant denies any involvement at all in the killing of the victim. Recall that in Perry the defendant admitted that he had grabbed the victim "by the neck" and that "the pressure of my grip strangled him." Id. at 140, 590 A.2d 624.
Although the State sought to impose a capital sentence on the basis of a murder committed in the course of a robbery, it did not indict defendant for the robbery. Nevertheless, at the guilt phase the State offered evidence that on the night of the murder defendant had possessed an amount of cocaine packaged in ziploc bags, known to be used by the victim in his drug trade. Having denied any involvement whatsoever in the killing of Lawrence Talley, defendant was not in a position to argue to the jury that an uncharged robbery provided the basis for a felony-murder verdict. Nevertheless, the court had a nondelegable responsibility to insure a fair trial.
The evidence clearly implicated defendant in the killing of Lawrence Talley in West Atco, New Jersey, on Friday, August 26, 1988. For purposes of review, we shall largely incorporate defendant's version of the facts. It was the State's theory that defendant had stabbed Talley during the course of an attempted drug transaction and had hidden the body in a hedgerow in defendant's backyard, where it was found two days later. Because no one ever saw defendant stab Talley and because there was no physical evidence connecting defendant with the crime, the State's case was entirely circumstantial.
A prosecution witness, Marie Simmons, testified that defendant would come to her house "two to three to four times out [of] the week" to "get high" on cocaine and that he usually brought with him a "twenty," meaning an amount of cocaine valued at $20. She testified that on Friday, August 26, at approximately 6:00 p.m., defendant had come to her home and
had wanted "a sixteenth," meaning approximately one and one-half grams of cocaine. On defendant's request she went to a neighborhood playground where she met with Talley to negotiate a drug transaction with him. They disagreed over the purchase price, but Talley said that he would stop by her house later. Instead, Talley sent a confederate, Jeffrey Davis, to sell a $20 bag of cocaine to defendant and Simmons. Defendant refused that deal because, as Davis testified, defendant "wanted a bigger quantity." After Davis left the apartment defendant went to the playground himself to meet with Talley. Witnesses at the playground testified that defendant, Talley, and Davis left the playground together. According to Davis, although he had initially walked with defendant and Talley, he did not accompany them to defendant's house, due to defendant's objections to his presence.
The fight in defendant's backyard.
The scene now shifts to defendant's home on Pine Avenue. Shortly before 9:00 p.m., defendant's daughter, Dia, heard "a lot of noise, a lot of hollering" in their backyard. Dia ran outside accompanied by her two brothers, Dennis and Lord Tee. (Defendant is the natural father only of Dia and not of her brothers. Gretchen Shaw is the natural mother of all three children and is defendant's fiancee.) Dennis carried a machete outside with him. Once outside, Dia heard "[s]omebody running through the woods" and a person yelling, "don't leave me Jeff." As she approached the backyard, Dia saw her father grappling with another man. Eventually, the two men fell to the ground, with her father on top. Dia saw her father hit the man approximately two times. Dennis and Lord Tee saw defendant chase two men into the woods. Dennis heard "scuffling in the woods" and someone saying, "Jeff, he's trying to kill me." Both Dia and Dennis testified that the man with whom defendant was fighting was not Lawrence Talley.
As soon as they saw what was happening, Dia and Lord Tee ran to a neighbor's house to call the police. In her transcribed
call to the police, Dia stated that "[s]omebody is trying to break in my house and now two guys are jumping my dad."
The neighbor ran to defendant's house, saw Dennis, and asked him, "where was they fighting at?" Dennis gave him the machete, and then the neighbor went "halfway back" to the rear of the house. He saw "back there on his knees" a man who told him that he was all right but that "they got away." As the man began to stand, the neighbor recognized him as defendant. He did not notice any bruises or marks on defendant.
Dennis then returned to the neighbor's house and told his sister that they did not need the police "because it was over." The police were called and told not to go to defendant's house. Nonetheless, the police arrived, spoke briefly with Dia, and performed a cursory search of the backyard. Soon afterward, Jeffrey Davis went to defendant's house and spoke with Dennis, asking for Talley. When told that Talley was not there, Davis went to Marie Simmons's house. After Davis explained to her what had happened, Simmons called the Winslow Township Police Department and local hospitals trying, without success, to locate Talley.
At trial, defendant attempted to prove that two people, Arthur Ellison and Gary Bey, had seen the victim alive late on the evening of August 26. Ellison testified that he had seen the victim speaking with Bey at the Maple Lake Inn, but indicated that he had seen them soon after dusk and not late that night. Bey did not testify.
The remaining events of the evening.
That night, Theresa Daniels, a co-worker of Gretchen Shaw, drove Gretchen home from work. Daniels testified that at about 10:00 p.m., after they had entered the house, "Lawrence, [defendant], and Gretchen started talking" in the kitchen and then went into the bedroom. (Neither the defense counsel nor the prosecutor questioned Daniels on her reference to the victim. Thus, we assume that "Lawrence" is an error in the transcript or refers to someone other than Talley.) Gretchen
testified that defendant had told her he was "okay" but that he "almost had one." She did not notice any marks or scratches on defendant. As Daniels was getting ready to leave, defendant asked her if she could drop him off at the Maple Lake Inn.
Once at the Inn, Daniels decided to stay for a few minutes. Defendant borrowed her car. Marie Simmons testified that defendant had arrived at her house sometime between 10:00 and 10:30 that evening, driving "a little brown car, hatchback," presumably Daniels' tan 1981 Toyota Corolla. Simmons described defendant as having a cut on his right arm that "was oozing with blood." Another person who was at Simmons's house noticed that defendant had "a bruise right underneath his eye." According to Simmons, defendant gave her "a sixteenth" of cocaine that he had obtained in Camden. She described the cocaine as being in a "clear ziploc bag," the same sort used by Lawrence Talley. Defendant then allegedly injected himself with some of the cocaine while Simmons smoked some of it. Other people came in and out of the house. Defendant left, but later returned and gave Simmons "another sixteenth and a couple of twenties." Simmons testified that defendant had stayed at her house until 3:30 a.m., although members of his family claim that he was home much earlier than that.
The discovery of the body.
On Sunday, August 28, Talley's sister, Charlotte, spoke with Jeffrey Davis and learned that her brother had not been seen for two days. She and Davis went to defendant's house to inquire about her brother. After looking around the outside of the house, they spoke with defendant. Defendant told them that "two guys came and jumped out the car and went chasing [the victim] * * * through the woods." Feeling uneasy about defendant's story and noting a "big black and blue mark" on his face and "all these scratches on his arms," Charlotte decided to go to the neighbor's house to check out the story. After speaking with the neighbors, Charlotte and Davis returned to
search further defendant's property. Soon after they arrived at the Purnell house, Davis noticed a foot sticking out of a hedgerow. It was Talley's body.
A medical examination disclosed that Talley had been killed by fifteen stab wounds to the neck, chest, and abdomen. There were scratches on the victim's back, which, according to the medical examiner, were consistent with the body having been dragged. Although, according to Davis, on the night of the murder Talley had been carrying "a sixteenth or more" of cocaine, no drugs were found on the victim and, except for a quarter lying underneath the body, no cash was found.
The Winslow Township Police went to the Purnell house and spoke with defendant. Defendant first told them that he had not seen Talley since 6:30 on Friday evening. He said that Talley had come to his house then, but he had been "busy" and had told Talley to come back later. He said that at 8:30 p.m. he had seen two men fighting in the backyard and that when he hollered "call the police," they had run off. He did not indicate that he had been in a fight with the two men. The police saw scratches on defendant's arms and a puncture wound on his upper arm. They discovered a long, shallow hole approximately twelve feet from the body. Conflicting information was presented about whether the potential grave site was intended for the victim or for a dog that had been buried elsewhere on the property.
Defendant's daughter, Dia, gave the police a taped statement in which she did not implicate her father in a fight with the men in the backyard. On September 1, the police obtained a tape of the call made by Dia to the police on the night of the murder in which she had said, "two guys are jumping my dad." Later that day, Dia gave another taped statement to the police and admitted for the first time that her father had been one of the men involved in the fighting. On that same day, the police arrested defendant. After the police advised him of his rights
and of some aspects of a self-defense claim, defendant admitted that he had been involved in a fight in his backyard with one of the two unknown men.
Defendant voluntarily appeared before the Camden County grand jury. He told the jurors that he had not seen Talley at all on the night of August 26, that he had not gone to Marie Simmons's house, and that he had not used drugs. He said that he had been confused when he told the police that Talley had been at his house that evening. He related the incident with the two men in his backyard. He emphasized that initially he had not told the police that he had been involved in the fight because "there's a body involved in this" and he was afraid that he might be incriminated.
Examinations of physical evidence, including hair, blood, and fiber samples, failed to establish any clear connection between defendant and the crime. Nor did the investigation corroborate the allegation that defendant had used drugs at Marie Simmons's home.
The Camden County grand jury indicted defendant on five counts: knowing and/or purposeful murder, hindering his own apprehension by concealing the victim's body, hindering his own apprehension by intimidating a witness into giving a false report, possession of a weapon with an unlawful purpose, and perjury. A jury convicted defendant on all charges, except the hindering charge concerning concealment, which had been dismissed at trial. In the sentencing phase, the State asserted two aggravating factors: that defendant had been convicted of a prior murder, N.J.S.A. 2C:11-3c(4)(a), and that the murder had been committed during the course of a robbery from Talley. N.J.S.A. 2C:11-3c(4)(g). Defense witnesses set forth redeeming aspects of defendant's character and personality, the good works that he had done for other people, and the fact that he had not been using drugs.
Although three jurors found the existence of mitigating factor 2C:11-3c(5)(b), that the victim had participated in the conduct that resulted in his death, and two jurors found the catch-all mitigating factor, 2C:11-3c(5)(h), the jury unanimously found the existence of the two aggravating factors and that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Consequently, defendant was sentenced to death on the murder count. After merger of the weapons charge, the court imposed sentences on the non-capital counts. Defendant appeals to us as of right under Rule 2:2-1(a).
In Schad v. Arizona, U.S. , 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991), the Supreme Court held that it was not harmful error that Arizona did not require a jury to distinguish between premeditated murder and felony murder in returning a conviction of capital murder that was death-eligible. The plurality in that decision reasoned that the Dissent's focus on the "risks of different punishment" for premeditated and felony murder ignored the fact that the Arizona sentencing statute applicable to the defendant authorized the same maximum penalty, death, for both means of committing first-degree murder. U.S. at n. 9, 111 S. Ct. at 2504 n. 9, 115 L. Ed. 2d at 573-74 n. 9. Although no opinion in Schad commanded five votes on the issue of separately submitting the felony-murder verdict to the jury, its corollary would appear to be that under a capital-sentencing scheme like New Jersey's that does not make felony murder death-eligible, to sentence a defendant to death based on an underlying felony without allowing the jury to consider the non-capital verdict of felony murder would be constitutionally impermissible.
We have consistently held that all forms of homicide rationally supported by the evidence, whether they be lesser-included or alternative offenses, should be placed before the jury. To truncate the definitions of the murder statute and thus deny a
jury the mechanism to decide which of the forms of murder has been proven is unacceptable. State v. Long, 119 N.J. 439, 462, 575 A.2d 435 (1990). In that respect, defendant's claim of entitlement to a felony-murder charge is similar to a request for a lesser-included offense charge. We have regularly held that a defendant is entitled to such a charge if there is any evidence "that would have afforded the jury a rational basis for convicting" the defendant of the lesser-included offense. State v. Moore, 113 N.J. 239, 290, 550 A.2d 117 (1988). In State v. Ramseur, supra, 106 N.J. 123, 524 A.2d 188, we held that a trial court must charge the jury regarding "all of the possible offenses that might reasonably be found from such facts." Id. at 271 n. 62, 550 A.2d 117. Although strictly speaking felony murder is not a lesser-included offense of murder in the sense that its elements are different, the statutory definition of lesser-included offenses, as we noted in State v. Sloane, 111 N.J. 293, 300, 544 A.2d 826 (1988), is not "all-encompassing," nor are the statutory categories "water-tight compartments." As Justice Stein has noted, Sloane suggests that in certain circumstances, subject to the requirements of fair notice, an offense, if supported by the evidence, should be charged to the jury even though it does not meet the Code's definition of lesser-included offense. State v. Mancine, 124 N.J. 232, 265, 590 A.2d 1107 (1991) (Stein, J., Concurring). That principle "comports with our general view that subject to fair notice the jury should resolve the degree of an actor's guilt on the basis of the evidence presented to the jury." Sloane, supra, 111 N.J. at 300, 544 A.2d 826.
We have held that at the very core of the guarantee of a fair trial in a criminal case is the judicial obligation to insure that the jury's impartial deliberations are based solely on the evidence and are made in accordance with proper and adequate instructions. State v. Simon, 79 N.J. 191, 206, 398 A.2d 861 (1979). Indeed, "so paramount is the duty to insure a fair trial that a jury must deliberate in accordance with correct instructions even when such instructions are not requested by counsel."
State v. Grunow, 102 N.J. 133, 148, 506 A.2d 708 (1990); see State v. Moore, supra, 113 N.J. at 288, 550 A.2d 117 (trial court's failure to charge on diminished capacity constitutes reversible error although charge was never requested by defense counsel). Obviously, there may be circumstances in which a defendant will specifically request that a jury not be charged on a lesser-included offense as a matter of trial strategy. Whether such a request can or should be acceded to, especially in a capital case, raises concerns regarding the interests of the public (represented by the jury) in being presented with "all of the facts and all of the possible offenses that may reasonably be found from such facts." State v. Choice, 98 N.J. 295, 299, 486 A.2d 833 (1985). We need not debate that issue in this case, for there is nothing in the record to indicate that a specific request not to charge felony-murder was made here.
New Jersey defendants cannot be subjected to the death penalty for murder if their intent is found to be anything less than knowingly or purposefully to cause death. State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). If, within the body of evidence presented at trial, proofs exist that provide a rational basis for a jury verdict of a lesser-included offense, a defendant is constitutionally entitled to have that alternative offered for jury deliberation. State v. Coyle, 119 N.J. 194, 222-23, 574 A.2d 951 (1990); see also State v. Crisantos, 102 N.J. 265, 276, 508 A.2d 167 (1986) (trial court should charge on a lesser-included offense if there is rational basis in the evidence to support conviction of that offense). By relying on the robbery as an aggravating factor, the State necessarily affirmed that proofs existed that provided a rational basis for the jury to choose the death-ineligible option of finding defendant guilty of felony murder. To deprive a capital defendant of a lesser-included alternative murder charge, which arguably would have affected the deliberation of a death sentence, is not constitutionally permissible.
The cases cited by the State in its supplemental brief do not stand for the proposition that a New Jersey defendant may be sentenced to death on the basis of an unindicted felony that was not found as part of its guilt verdict without submitting the non-capital felony-murder issue to the jury. Since, as we have seen in Schad v. Arizona, supra, U.S. , 111 S. Ct. 2491, 115 L. Ed. 2d 555, in some jurisdictions felony murder is a death-eligible alternative form of first-degree murder, there is no reason to submit to the jury a separate verdict on felony murder. In that statutory context (when both forms of murder, intentional murder and felony murder, are death-eligible), the aggravating factor serves as an independent sentencing guide for consideration by the sentencing jury just as, for example, the prior murder factor would. That type of factor need not be established in the guilt phase of a trial.
Obviously, our Legislature did not intend, nor does constitutional principle require, that every aggravating factor under N.J.S.A. 2C:11-3c that renders a murder death-eligible be the subject of an indictment and a guilt-phase verdict. For example, although factors c(4)(f), killing to escape detection, and factor c(4)(h), killing a police officer, can constitute separate criminal offenses, neither principles of constitutional law nor of fundamental fairness require that the factors be tried as separate indictable offenses in the guilt phase. If proper notice were given, the sentencing-phase jury could make its unanimous finding of such a factor without a prior guilty verdict and without unfairness in the trial.
While it is true, as our Concurring member notes, post at 556, 601 A.2d at 194 that if notice of an aggravating factor has not been given to a defendant before trial, that factor may not provide the basis for a death sentence in that same trial, it is also true that death-eligibility functions not as a freeze-frame or snapshot but rather as a moving picture. Once established, that aggravating factor might form the basis of a death sentence in a later proceeding if proper notice were given. State v. Biegenwald, 110 N.J. 521, 542 A.2d 442 (1988) (Biegenwald III).
But when the separate offense encompassed by the aggravating factor is, in itself, a basis for an alternative form of murder that is non-capital, a defendant is constitutionally entitled to have that alternative offered for jury deliberation in the guilt phase. Because defendant was denied the right to have the jury decide "all of the possible offenses [capital and non-capital] that might reasonably be found" in the evidence, State v. Ramseur, supra, 106 N.J. at 271 n. 62, 524 A.2d 188, we vacate the sentence of death.
Because our decision on the felony-murder issue renders moot many of the other issues raised in defendant's appeal, we shall not address them in detail, except to the extent that they may recur in any further proceedings or affect the validity of the verdicts that remain.
A. Was defendant tried by a fair and impartial jury?
Defendant raises various challenges to the selection of his jury. He asserts that the trial court applied an incorrect standard in the death-qualification of the jurors. Those issues have been mooted by our Disposition and have been discussed extensively by this Court. See State v. Biegenwald, 126 N.J. 1, 594 A.2d 172 (1991) (Biegenwald IV); State v. Dixon, 125 N.J. 223, 593 A.2d 266 (1991); State v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988) (Williams II). No further Discussion is required. We are satisfied as well that the use of an unsworn jury questionnaire as a preliminary basis for selecting jurors does not violate our jury-selection procedures. See State v. Moore, 122 N.J. 420, 454, 585 A.2d 864 (1991) (discussing use of questionnaire). Each of the jurors was sworn and examined under oath in respect of the answers set ...