On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King, Dreier and Gruccio. The opinion of the court was delivered by King, P.J.A.D.
The Opinion of the court was delivered by
In this case defendant, James Ferguson, was convicted of knowing and purposeful murder and sentenced to a 30-year term with no parole eligibility. He was 14 years plus 8 months of age, in tenth grade, at the time of the homicide on October 7, 1988. His principal claim for reversal relates to his transfer hearing where the Family Court Judge waived jurisdiction on February 14, 1989 and transferred the matter to the Law Division for prosecution as an adult. We conclude that the transfer hearing was fundamentally flawed and we remand for a new transfer hearing. We do not reach the claims of trial error but retain jurisdiction pending the outcome of the remand. If the case is again transferred to the adult court, we
will review the claims of trial error at that time. If the case is not transferred, we will relinquish jurisdiction to the Family Court to proceed as in the first instance.
This is the procedural background. On October 7, 1988 defendant, then 14, was charged in two Middlesex County juvenile complaints with delinquency under N.J.S.A. 2A:4A-20 to 2A:4A-91 for acts which if committed by an adult would constitute murder, N.J.S.A. 2C:11-3a(1) and (2); possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and unlawful possession of a knife, N.J.S.A. 2C:39-5d.
On October 13 the Middlesex County Prosecutor's Office filed a motion in the Chancery Division, Family Part, for waiver of jurisdiction, permitting trial as an adult in the Law Division. N.J.S.A. 2A:4A-26. Judge Rebeck granted the motion and referred the case to the Law Division on February 14, 1989.
On March 1, 1989 the Middlesex County Grand Jury returned Indictment No. 585-3-89 charging defendant with murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and unlawful possession of a knife, N.J.S.A. 2C:39-5d (count three). Meanwhile, defendant had filed an unsuccessful motion in the Chancery Division, Family Part, seeking reconsideration of the February 14, 1989 transfer of jurisdiction to the Law Division. The basis for the rehearing request was "ineffective assistance of counsel." On March 15, 1989 we remanded an interlocutory appellate application by defendant stating: "the remand to the Family Court is for the sole purpose of having that court decide the pending motion made by the juvenile wherein he seeks reconsideration of the court's referral order entered on February 14, 1989." A hearing with testimony was held on the motion for a new transfer proceeding on June 26 and 27 before Judge Rebeck; he denied the motion for reconsideration on July
6, 1989. On October 3, we denied a motion for leave to appeal that order.
Defendant pled not guilty and was tried before Judge Hoffman and a jury in June 1990. The jury found defendant guilty on all charges. The Judge denied both of defendant's post-trial motions on August 3, 1990. The Judge then sentenced defendant to 30 years imprisonment without parole, as required by N.J.S.A. 2C:11-3b, on count one, murder. Counts two and three, possession of a knife for an unlawful purpose and unlawful possession of a knife, were merged. On these convictions, the Judge imposed four years imprisonment, concurrent with the murder sentence. A VCCB penalty of $30 also was imposed.
The homicide charges arose from a fight between the defendant, age 14, and the victim, age 16, on October 7, 1988 after a school dance at Edison High School. Defendant was armed with a knife. The record suggests that the older and stronger victim who participated in the fight may have been the initial aggressor. There may well have been racial overtones to the sad incident. As obvious from the verdict, the jury rejected defendant's claims in defense, i.e., accidental homicide or self-defense, or in mitigation of the degree of the homicide through imperfect self-defense or passion-provocation.
Soon after defendant's arrest, his mother hired privately-retained counsel to represent him. Counsel, in turn, procured the services of Dr. Seymour Kuvin as a psychiatric expert for the purposes of the transfer hearing. Dr. Kuvin testified that in his opinion the juvenile was a good candidate for rehabilitation by age 19. Judge Rebeck rejected his testimony, ruled that the juvenile had not met the heavy burden of proof regarding the likelihood of rehabilitation by age 19, and transferred the case to the Law Division.
Months later, at the sentencing hearing after the adult conviction, Judge Hoffman was presented with a comprehensive report prepared by the Office of the Public Defender containing many positive letters and evaluations on defendant. Based on this report, Judge Hoffman found as mitigating factors that (1) defendant's conduct was the result of circumstances unlikely to reoccur, N.J.S.A. 2C:44-1b(8); (2) defendant's character and attitude indicate that he is unlikely to commit another offense, N.J.S.A. 2C:44-1b(9); (3) defendant was particularly likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1b(1); (4) there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1b(4); (4) the victim's conduct induced or facilitated the commission of the offense, N.J.S.A. 2C:44-1b(5); and (6) defendant had no history of prior delinquency or criminal activity, N.J.S.A. 2C:44-1b(7). The only aggravating factor identified by the Judge was general deterrence of others from violating the law, N.J.S.A. 2C:44-1a(9). Because of the mandatory sentencing statute, Judge Hoffman lacked any discretion to act favorably on this showing and sentenced defendant to the mandatory term of 30 years imprisonment without parole.
On this appeal defendant makes two contentions relevant to the transfer hearing in the Family Court:
POINT I -- THE FAILURE OF EITHER DEFENSE COUNSEL OR THE COURT BELOW TO ADVISE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF AT THE WAIVER HEARING REQUIRES THAT THE WAIVER RULING BE VACATED AND A NEW HEARING HELD.
POINT II -- DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE HEARING TO DETERMINE WHETHER HE WOULD BE TRIED IN JUVENILE OR ADULT COURT.
He makes these three contentions of trial error in the Law Division trial leading to his murder conviction:
POINT III -- THE STATEMENT GIVEN BY THE JUVENILE DEFENDANT TO POLICE WAS IMPROPERLY ADMITTED AT TRIAL.
POINT IV -- THE TRIAL COURT FAILED TO INVESTIGATE POSSIBLE JUROR IMPROPRIETY DISCOVERED AFTER THE VERDICT WAS RETURNED.
POINT V -- THE JURY INSTRUCTIONS DID NOT ADVISE THE JURORS THAT DEFENDANT'S AGE COULD BE CONSIDERED IN DETERMINING WHETHER THE LEGAL PRINCIPLES OF SELF-DEFENSE AND IMPERFECT SELF-DEFENSE APPLIED, WHICH ERROR REQUIRES REVERSAL OF DEFENDANT'S CONVICTION (Partially raised below).
We now consider the transfer ...