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State v. Martini

Decided: February 9, 1993.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN MARTINI, SR., DEFENDANT-APPELLANT.



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

Garibaldi, Wilentz, Clifford, Pollock, Stein, Handler, O'Hern

Garibaldi

The opinion of the court was delivered by

GARIBALDI, J.

In December 1990, a jury convicted defendant, John Martini, Sr., of the capital murder of Irving Flax committed in the course of a kidnapping. Following a penalty-phase proceeding on the capital-murder conviction, the court sentenced defendant to death. He appeals directly to this Court as of right. See Rule 2:2-1(a)(3). We affirm defendant's conviction for murder and his sentence of death.

I

On May 9, 1989, defendant was indicted for purposeful or knowing murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) and (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count two); possession of a handgun with intent to use it unlawfully against another, contrary to N.J.S.A. 2C:39-4a (count three); kidnapping, contrary to N.J.S.A. 2C:13-1a (count four); and possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b (count five).

Subsequently, the State served notice of its intent to prove two aggravating factors: that the murder of Irving Flax had been committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement for the crime of kidnapping committed by the defendant, N.J.S.A. 2C:11-3c(4)(f), and that the murder of Irving Flax had been committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit the crime of kidnapping, N.J.S.A. 2C:11-3c(4)(g).

The jury found Martini guilty on all counts and sentenced him to death. Martini did not dispute that he had kidnapped and murdered Irving Flax, but he asserted that his severe and continuing drug-abuse problem had vitiated his capacity purposely and knowingly to commit the crimes of which he was accused. Martini's oral and signed statements confessing to the crimes were virtually uncontested at trial, and were the primary source of most of the State's evidence. The following is an account of the essentially-undisputed facts surrounding this case.

A. Events preceding the murder, the crimes and the investigation

In November 1988, defendant, a former long-time resident of New Jersey, travelled to New York City from Arizona with twenty-nine-year old Therese Afdahl, with whom he had been romantically involved for the previous ten years. In 1989, Martini, fifty-eight, had divorced his wife of thirty-nine years because of his relationship with Afdahl. A few days after his arrival, defendant and Afdahl met with Victor Picardi, a friend of defendant, and Picardi's wife, Joyce, in their Bronxville, New York home. Defendant asked to borrow Victor Picardi's credit card, claiming that he had lost his wallet. Picardi complied.

Shortly thereafter, defendant and Afdahl moved to New Jersey, where they stayed in various hotels, including the Days Inn in Fort Lee, before renting an apartment in Fairview under the names Victor and Joyce Picardi. On December 12, 1988, and January 9, 1989, defendant, using the name Victor Picardi, visited the office of Dr. Anthony P. Nicosia in Cliffside Park for treatment of anxiety, nervousness, gastritis and a runny nose. During that visit, Dr. Nicosia did not observe any indication of drug use by defendant.

After moving to New Jersey, defendant communicated with a long-time friend, John Doorhy. Doorhy, who lived in Westwood, agreed to meet defendant at the Forum Diner in Paramus. During their meeting, defendant told Doorhy that he was short of funds, and asked if he knew of a way to make some money quickly. Doorhy gave defendant a $6,000 loan and then suggested that defendant kidnap Irving Flax, a Fair Lawn businessman, with whom defendant had been acquainted for some thirty years. Doorhy informed defendant that while working recently at the Flax home, he had noticed a large amount of cash as well as several bankbooks, one of which showed a balance of at least $100,000. Doorhy also told defendant the morning schedules of the Flax family, informing him that Irving Flax usually left for work between 9:30 and 10:00 each morning.

Defendant agreed to give Doorhy a percentage of the proceeds of the kidnapping. In return, Doorhy drove defendant to the Flax residence and provided him with written directions to return there. Afterwards, the two men returned to Doorhy's house where Doorhy gave defendant a .32 caliber revolver that defendant had purchased in Arizona a few years earlier and that Doorhy had been holding for him.

Sometime later, defendant, accompanied by Doorhy, met a third party who had obtained fraudulent New Jersey driver's licenses for defendant and Afdahl in return for $1,000. On another date, defendant purchased an additional .32 caliber revolver in Jersey City for $100.

On the morning of January 23, 1989, defendant and Afdahl drove defendant's blue Buick to a location near the Flax residence from which he would have an unobstructed view of anyone leaving the premises. At approximately 9:30, Flax left the house and approached his car. Afdahl drove the Buick to the front of the house, where defendant alighted from his car and approached Flax's vehicle. Defendant called Flax by a nickname he had known him to use during their earlier acquaintance. Defendant asked Flax if he recognized him. When Flax showed some recognition of defendant, Martini suggested that the two go to a diner in Flax's car for a cup of coffee. Flax agreed.

As Flax began to drive, defendant pulled out the revolver he had recently purchased and pointed it at Flax. Defendant informed him of the kidnapping and directed Flax to drive to the Garden State Plaza parking lot adjacent to Route 17 in Paramus. Afdahl followed behind in defendant's car. Once parked, Flax was ordered to get into defendant's vehicle, which had been parked next to Flax's automobile. Defendant then drove Flax and Afdahl to the Fairview apartment.

At approximately 10:00 a.m. Flax was instructed to call his wife, Marilyn. Mrs. Flax had stayed home from work that day in order to take care of her youngest son, who was sick. Mrs. Flax sensed that something was wrong with her husband despite his protestations to the contrary. During the conversation, Irving Flax told his wife that he needed her to stay home and that he would call again in fifteen or twenty minutes. After that call defendant took Flax into a bedroom and bound his ankles with tape and his wrists with both tape and an extension cord.

Thirty minutes later, defendant telephoned Mrs. Flax and told her "I have your husband * * *. If you want to see him alive, I want $100,000." Defendant ordered Marilyn Flax not to communicate with the police, and told her that if she called the police, both she and her husband would be dead. Some fifteen minutes later, Irving Flax again telephoned his wife and told her not to call police and to "give them this money."

Mrs. Flax telephoned the Fair Lawn police to report the kidnapping. Taps were placed on two of her telephones at about 1 p.m. Before the taps were installed, however, defendant again telephoned Mrs. Flax, this time from a pay phone. After identifying himself as "Tony," defendant asked if Mrs. Flax had obtained the ransom money. In reply to Marilyn Flax's statement that she could not raise that much cash, defendant asked her if she could get $25,000. She responded that she would try. He told her he would call back at 6:00 p.m. to see if she had obtained the money. According to Mrs. Flax's testimony, throughout that conversation "over and over he kept threatening [her] life and [her] husband's" if she did not get the money or if she called the police.

A Special Agent from the Federal Bureau of Investigation, who had been notified by Fair Lawn police, arrived at the Flax residence. Mrs. Flax went to her bank and withdrew $25,000. FBI agents recorded the serial numbers of the $25,000 in ransom money. The money was packaged and placed in a brown-paper bag.

At approximately 5:30 p.m., defendant telephoned Mrs. Flax and conducted a ten-minute conversation that was taped by the FBI. After Mrs. Flax told him she had the money, defendant instructed her to drive to the back of the Forum Diner in Paramus where he would meet her at 7:30. He described what clothing he would be wearing and stated that when Mrs. Flax saw him wave both hands in the air, she was to open her car door and leave the money in a paper bag on the ground next to her car. Defendant told Mrs. Flax that her husband would call her by the time that she returned from the diner. During that conversation, Martini also told her that if she or Flax arranged to have him arrested at any time, "someone else will come, maybe in two days, kill the two of ya's [because] I can't take a chance that you're going to do this to me." Shortly after that call, Mrs. Flax received a call from her husband, who "said to me, honey, give * * * them the money, he was screaming and crying."

At about 6:40 p.m., defendant left Afdahl in charge of Flax at the Fairview apartment and drove to the Garden State Plaza. He exchanged his car for Flax's and drove to the arranged meeting point. Equipped with a bullet-proof vest and accompanied by a hidden FBI agent, Mrs. Flax arrived at the diner. Defendant gave the previously-discussed signal; Mrs. Flax dropped the ransom money and returned home.

Defendant picked up the money and left the diner. He was followed by FBI agents who had been conducting an undercover surveillance near the rendezvous point. According to defendant, he stopped at the Days Inn because he "had hallucinated that there was a bug in the bag" of money. Defendant threw away the original box and bag holding the cash and put the money in a new container. Concerned that he was being followed, defendant drove across the George Washington Bridge and into the Bronx. He drove around the Bronx for approximately one hour in order to lose anyone who might have been trailing him. He was successful. Police officers lost him in traffic.

Eventually, defendant returned to the Fairview apartment. After packing a suitcase and untying the victim, defendant left the apartment with Afdahl and Flax, whom he instructed to drive. Afdahl occupied the front passenger seat, while defendant sat in the rear directly behind Flax. At approximately 8:45 or 9:00 p.m. the three arrived at the Garden State Plaza parking lot.

Defendant claims that when they got to the parking lot, he "saw Irving's door open, and his foot get out, and it looked like he was going to run away [so I] shot, and I shot him in the head." Flax was shot three times in the back of the head with the revolver defendant had purchased in Jersey City. Leaving the victim's body in the vehicle, defendant got out of Flax's car with Afdahl, keeping the keys, and took his suitcase out of the trunk. Defendant and Afdahl drove back to the Fairview apartment. According to defendant, he and Afdahl ingested cocaine on their return.

In order to dispose of the murder weapon and the keys to Flax's car, defendant and Afdahl drove to the Staten Island Ferry. According to defendant, he went to the upper deck of the boat to dispose of the evidence, However, once there, he "forgot what [he] was doing" and purchased two hot dogs. After eating one of the frankfurters, defendant remembered his mission and walked to the lower deck. However, Martini threw the remaining hot dog in the water instead of the gun and "couldn't understand why it didn't sink." Eventually, defendant regained his composure and tossed the gun and car keys into New York Harbor.

Soon thereafter, defendant disposed of his car in the Bronx. Victor Picardi then drove defendant and Afdahl back to the Days Inn in Fort Lee. Picardi described defendant as "mumbling and not with it, you know, sort of -- I don't know maybe drugged up."

At 9:45 a.m. on January 24, a security guard at the Garden State Plaza grew suspicious of Flax's vehicle, which was parked in a remote corner of the lot. On approaching the car, he discovered Flax's body. Flax was seated in the driver's seat with his legs extended toward the pedals and his head tilted back against the head rest. He was wearing a gold chain, wedding ring, wrist chain, and watch. Blood was splattered on the back rest of the driver's seat, the drivers-side rear window, and the rear passenger-side window.

Later that day, Bruce Chamberlain, a long-time acquaintance of Martini, listened to the taped telephone conversation between Mrs. Flax and defendant at the FBI office in Paramus. He identified the male voice as that of defendant.

Earlier that day, a flyer had been distributed to police departments throughout Bergen County indicating that defendant and Afdahl were wanted in connection with a double homicide in Arizona. Armed with that information, two Fort Lee police detectives began a check of local motels. In the course of their investigation they observed defendant and Afdahl leave the Days Inn in Fort Lee and walk to a telephone booth at an adjacent gas station. Defendant was carrying a black-canvas bag, which he gave to Afdahl as he entered the phone booth.

A number of police cars arrived in response to the detectives' request for assistance, but remained at a distance. A taxi subsequently approached the booth and both defendant and Afdahl got into it. By that point defendant had retrieved the black bag from Afdahl. Police surrounded the cab and took both suspects into custody. The taxi driver heard defendant say "baby, this is it." In addition, as he was being handcuffed, defendant said, "you're the FBI, right?" and "you got me."

The canvas bag was searched. It contained $29,960, including $23,760 with serial numbers that matched those on the ransom money, a camera containing a roll of film, a vial of prescription pills, Victor Picardi's credit card, a driver's license in the name of Gettys Johnson, as well as a fully-loaded .32-caliber revolver. In addition, at the time of his arrest defendant was in possession of a shopping bag, which contained a sterno burner, rubber bands, aluminum foil, and a disposable lighter. A key to Room 211 of the Days Inn was found in defendant's coat pocket.

Using the room key found on defendant, six Fort Lee police officers entered the room approximately ten minutes after defendant had been arrested to ensure that no third person was there. Finding the room empty, they secured it.

At the time of his arrest, defendant was given Miranda warnings. In response, he stated that he did not wish to say anything. Defendant was taken to Fort Lee Police Headquarters where he was given another set of Miranda warnings. A strip search of defendant revealed no track marks on his arms. The police officers did not test defendant's urine or pupils for signs of drug use. However, they testified that they did not observe any outward indications of drug-related intoxication.

Defendant was given a third and forth set of Miranda warnings a short time later. In both instances, defendant signed a waiver form. A final set of Miranda warnings was given to defendant by two officers, Sergeant Michael Trahey of the Bergen County Prosecutor's Office and Special Agent Edwin Petersen of the FBI, at 12:35 a.m. on January 26. Defendant began an exchange with the officers by asking "what [they] had against him." Officer Trahey responded by saying that "it was a two-way street if it was going to be anything," and that he would not "lay out [their] entire case" unless defendant agreed to talk to them. Defendant agreed to "lay out his entire involvement in the case" if he could speak to Afdahl first. Officer Trahey testified that defendant stated that he wanted to tell Afdahl "that he was going to cooperate with [the police] and that he was going to tell [them] what had happened and that he wanted her to be aware of that fact." Defendant contends that he also told her "that he was going to cooperate and that she should tell the truth of exactly what happened." The two suspects were allowed to converse for about two or three minutes.

After speaking with Afdahl, a five-and-one-half-hour interview with Officers Trahey and Petersen ensued. Defendant was not given any further Miranda warnings that day. Defendant was described by Trahey as being "alert but tired," and not appearing to be under the influence of drugs. Defendant gave the officers an oral and written statement as well as a written consent to search the Fairview apartment and rooms 211 and 215 of the Days Inn. In addition, defendant consented to the release of telephone toll records for the Fairview apartment.

Police carried out a search of the apartment on January 26th. They confiscated a glass vial that tested positive for trace amounts of cocaine, an unused glass cocaine pipe with the price tag still attached, a package of rubber bands, a number of prescription vials, a box for the revolver recovered from the black-canvas bag, as well as a number of papers from a nightstand. No drugs were found in the apartment.

That same day, officers searched Room 211 at the Days Inn and confiscated, among other things, a number of rubber bands and a jar of Beechnut Bartlett Pear baby food. The searching officer saw no cocaine nor other illegal drugs nor any drug paraphernalia in the hotel room. Room 215 had been cleaned by hotel personnel, eliminating any evidence.

On January 27, 1989, defendant gave an additional oral and signed written statement concerning the role of Doorhy in the kidnapping and how he had obtained the false drivers' licenses. That statement was preceded by another set of Miranda warnings.

B. The Trial

Defendant made numerous pretrial motions. Of significance were the motions to dismiss the indictment, to strike the aggravating factors, and to suppress defendant's statements, wire recordings, and physical evidence, all of which were denied by the trial court.

On October 2, 1990, the trial court commenced the voir dire of 209 venirepersons, which lasted for seventeen days. The voir dire consisted of fifty-five qualified jurors being selected. The details of the questioning are presented below with our Discussion of defendant's various challenges to the voir dire. Infra at (slip op. at 23-42). Neither side exhausted its peremptory challenges.

1. State Guilt Phase Case

The State's case at the guilt phase of the trial consisted primarily of experts in forensic pathology testifying about how Flax had been murdered, Mrs. Flax relating the events that had occurred on the day of the kidnapping, and Sergeant Trahey reading defendant's transcribed statements into the record and relating other admissions of defendant. The taped telephone conversations between Mrs. Flax and defendant also were admitted into evidence.

Initially, Dr. Apovian, a medical examiner, testified about the autopsy he had performed on the victim's body. The procedure uncovered three bullet wounds to the head, any of which could have been the cause of death. Dr. Apovian concluded that powder burns surrounding at least two of the wounds indicated that they had been inflicted at close range with the gun no more than twelve to eighteen inches away.

Dr. Vincent DiMaio, an expert in forensic pathology, testified that Flax had died of multiple gunshot wounds to the back of the head. He stated that with respect to two of the three wounds, the muzzle of the gun had been in contact with the scalp of the victim at the time of discharge. With respect to the third wound, the expert testified that the gun had been held either very loosely against the head or at a maximum of a quarter-of-an-inch away when it was discharged. Thus, Dr. DiMaio concluded that the pattern of blood splatter and the absence of "tattooing" around the wounds meant that the shots had to have been fired at close range and not in the manner described by defendant (i.e., after Flax had opened the car door, turned toward the door, and placed a foot on the ground). He concluded that defendant must have been sitting directly behind the victim at the time that the gun was fired and that the car door was closed at the time of the shooting.

Also appearing for the State as an expert witness was Cynthia McSweeney, a senior forensic scientist with the New Jersey State Police. She testified that a human-blood stain found on a pair of defendant's pants contained a genetic marker also contained in the victim's blood. The marker is found in approximately 10.6 percent of the Caucasian population and 4.6 percent of the black population.

Sergeant Anthony LaPlaca of the Bergen County Prosecutor's Officer, who appeared as an expert witness, testified that the bullets that had caused Flax's death had not been discharged from the revolver seized from defendant at his arrest, but that the seized revolver was operable.

Mrs. Flax testified about what had happened on January 23, 1989, the day of the kidnapping. She related all of her telephone conversations with defendant and her husband and her delivery of the ransom in accordance with Martini's instructions. Her testimony agreed substantially with defendant's recollection, as set forth in his written statement of January 26th. Defense counsel did not object to her testimony. However, on appeal defendant claims Mrs. Flax's testimony was improper and a ploy to emphasize the impact of the crime on the victim and his family. Mrs. Flax's testimony is more fully described elsewhere in this opinion. see infra at (slip op. at 69-79).

Sergeant Trahey read to the jury the comprehensive oral and written statements that defendant had made on January 26th and 27th.

The State also elicited testimony concerning the extent of Martini's cocaine use. The State called Dr. Nicosia, the physician whom Martini, using the name Victor Picardi, had consulted on December 12, 1988. Dr. Nicosia testified that during his examination of defendant, he did not observe any signs of cocaine use.

2. Defense Guilt Phase Case

Defendant, who elected not to testify, did not dispute that he and Afdahl had abducted Flax or that he had fired the three shots that killed him. Instead, defendant sought to establish that a continuing cocaine addiction had diminished his capacity to commit those crimes purposely or knowingly.

The defense relied on defendant's signed statements to show that defendant's life had changed when he began his affair with Afdahl, then a nineteen-year-old prostitute and drug addict; that Afdahl had encouraged him to use drugs and would inject cocaine into his arm; and that he and Afdahl had developed a cocaine habit that cost them $400 to $500 per day.

Alice Martini, defendant's former wife, testified that she had divorced defendant in 1989 because he had been engaged in a ten-year relationship with Afdahl and because he had developed a drug addiction. She testified, however, that prior to his relationship with Afdahl, he was a good husband and father. According to Mrs. Martini, when defendant used drugs, his personality would change drastically. He would become violent and unpredictable. For example, she stated that he was "completely changed * * * like one day he was like a regular husband and father and the next day he was like a Dr. Jecky [sic] and Hyde," that is, "very angry * * * fidgety and pacing back and forth. He'd pick a fight at anything you did." Mrs. Martini also testified that defendant had overdosed on two occasions and that she had seen scars indicative of drug use on the back of defendant's right hand and arm from the wrist to the elbow.

Some medical records indicating drug use by defendant were entered into evidence. A 1987 handwritten note by an Arizona doctor stated that Martini was on heroin four times a month, had swelling on his arm from injections, and should consider a detoxification program. Hospital records reported two incidents of defendant being treated for cocaine overdoses on September 14 and 19, 1988.

The principle witness in support of defendant's diminished capacity defense, however, was Dr. Daniel Greenfield, a psychiatrist and expert in addiction medicine. Dr. Greenfield had examined defendant on two occasions and had sat in during one of defendant's interviews with the State's expert witness. During his interviews, Dr. Greenfield observed two track marks on Martini's right hand and forearm. He also reviewed defendant's medical records and written confessions.

Dr. Greenfield had defendant complete three psychological tests, including the Minnesota Multiphasic Personality Inventory (MPPI), a true/false questionnaire designed to give a personality profile and to uncover evidence of psychiatric or psychological disorders, the Michigan Alcohol Screening Test (MAST), and the Drug Abuse Screening Test (DAST). Dr. Greenfield testified that defendant had scored extremely high on the paranoia and schizophrenia scales of the MPPI test. Dr. Greenfield reported that defendant's personality was disorganized and chaotic.

According to the expert, the other tests revealed that Martini had a "real severe drug problem." Dr. Greenfield also said that his examination of defendant's written confession had revealed several indications of the binging and crashing cycle that is common among cocaine addicts. Explaining that crashing symptoms include depression, slowness, and confusion, the doctor observed that Martini had said in his written statements, "I'm just going to pass out. I'm coming all the way down." In addition, the expert found in the statement indications of paranoid and delusional behavior as well as erratic behavior inconsistent with knowing and purposeful crimes. Phrases such as "I lost you" indicated that Martini had lapses of memory; statements that he had seen Flax running before he shot him and that he had hallucinated that there were bugs in the ransom money indicated paranoid and delusional behavior; and the fact that Martini had left money and valuables behind after shooting Flax showed erratic behavior that was inconsistent with the kind of planning normally accompanying purposeful or knowing crimes.

In response to a hypothetical question, Dr. Greenfield stated his opinion that defendant "unquestionably [had been] under the influence of cocaine at the time" of the shooting and that as a result he had labored under "cognitive dysfunction, forgetfulness and inability to concentrate [and] experienced some acute degree of delirium." In arriving at that Conclusion, Dr. Greenfield considered significant the baby-food jar found in Martini's hotel room because it constituted cocaine paraphernalia. On cross-examination, Dr. Greenfield was presented with the jar, which still contained bartlett pears. He conceded that because the jar had contained food when it was confiscated, it could not have been used for smoking cocaine and did not support his opinion that defendant had been using the drug at the time of the incident. Dr. Greenfield, therefore, concluded it impossible to determine within a reasonable degree of medical probability whether defendant had acted purposefully or knowingly during the shooting.

In rebuttal, the State presented Dr. Stanley Kern, a psychiatrist who had examined defendant twice. Dr. Kern's opinion was that defendant had been suffering from cocaine dependence and abuse. He had found no indication of any medical disease or disorder. Dr. Kern testified that even if defendant had been using cocaine at the time of the crimes, within a reasonable degree of medical probability defendant had acted knowingly and purposefully during the kidnapping and murder of his victim.

The jury returned a verdict of guilty on all counts.

3. Penalty Phase

During the penalty phase, the State sought to establish the two aggravating factors of which it had previously served notice on defendant: c(4)(f) (murder for the purpose of escaping detection) and c(4)(g) (murder in the course of a kidnapping). Defendant moved to dismiss factor c(4)(f), arguing that the record contained insufficient evidence for its support. The court denied that motion. Initially, the State did not call any witnesses for the penalty-phase proceeding, instead relying on the evidence adduced during the guilt phase to support the aggravating factors.

Defendant sought to establish five mitigating factors: c(5)(a) (extreme mental or emotional disturbance insufficient to constitute a defense to prosecution); c(5)(c) (age of defendant); c(5)(d) (diminished capacity due to mental disease or defect, or intoxication); c(5)(g) (defendant gave substantial assistance to the State in prosecuting another person for murder); c(5)(h) (catch-all mitigating factor). The court granted the State's motion to strike mitigating factor c(5)(g).

Defendant first called as an expert Diana Aviv, a psychiatric social worker. She had previously interviewed defendant and his former wife, Alice. Ms. Aviv's testimony consisted primarily of what the two had told her and related mostly to the Martinis' early life together and the circumstances that had driven them apart. She concluded that Martini's involvement with Afdahl, a younger woman with a drug problem, and his own drug addiction had "destroyed his marriage," "ruined his relationships with his children," and "produced the kind of behavior that resulted in his killing Mr. Flax."

The defense then produced Harvey Musikoff as an expert witness in psychology. Dr. Musikoff had administered psychological tests to defendant to determine if any mitigating factors existed that would have contributed to the crimes committed by Martini. Dr. Musikoff had interviewed defendant on two occasions, during which he had administered a battery of psychological tests to determine if any mitigating psychological factors existed that would have contributed to the crimes. He also reviewed the same discovery materials and tests that had been available to Dr. Greenfield and the written reports prepared by Drs. Greenfield and Kern. In Dr. Musikoff's opinion, defendant "is a man who basically is a substance abuser, who's turned to substances as a way of dealing with feelings," a "self-defeating" personality type with "serious feelings of unworthiness and inadequacy that permeate his life." In general, defendant struck him as "in despair * * * expressionless, emotionless, sort of without any hope for the future." He diagnosed Martini as a substance abuser, a self-defeating personality type, and as suffering from dysthymia, a form of chronic depression that may go back more than ten years with occasional brief periods of remission.

Although the State did not present evidence initially, it did offer rebuttal evidence. An investigator for the prosecutor testified to his interview with Eileen Metzgroff concerning her relationship with Martini. Metzgroff had told the investigator that she had had drinks, dinner, and sexual relations with Martini on January 14, 1989. To corroborate, the State called a hotel clerk, who testified that Metzgroff and another adult had registered at the Days Inn in Fort Lee on that night. Finally, the State re-called Sergeant Trahey, who testified that in his confession Martini had described Ms. Metzgroff to Trahey as a "friend, girlfriend." Additionally, Trahey testified that Martini had misstated his age during an interrogation, indicating that he was three years younger than was true.

During the jury's deliberations on the appropriate sentence, the jury sent a written inquiry to the trial court.

After receiving the court's response, the jury continued its deliberations. The contents of the note and the reply to it are discussed more fully below at (slip op. at 79-82).

The jury unanimously found beyond a reasonable doubt that both aggravating factors existed. None of the jurors found that mitigating factor c(5)(a), (defendant was under the influence of extreme mental or emotional disturbance), or mitigating factor c(5)(d), (defendant's capacity to appreciate his wrongfulness of his conduct to the law was significantly impaired as a result of mental disease or defect) existed. Six jurors found that the remaining two mitigating factors, c(5)(c) (defendant's age) and c(5)(h) (catch-all) existed; six found that they did not. subsequently, the jury unanimously found beyond a reasonable doubt that each aggravating factor, together or individually, outweighed the mitigating factors. Thereafter, the court sentenced defendant to death for the purposeful and knowing murder of Irving Flax by his own conduct, count one.

After denying defendant's motion for a new trial, the trial court sentenced defendant to life imprisonment, with a thirty-year period of parole ineligibility on count two, felony murder (which was merged into the sentence on count one); a consecutive term of life imprisonment with a twenty-five-year period of parole ineligibility for count four, kidnapping; and concurrent four-year terms of imprisonment on counts three and five, the weapons charges.

II

Voir Dire

Defendant contends that the jury voir dire was so inadequate that he was denied his right to a fair trial by an impartial jury. Specifically, he claims that the failure of the trial court, sua sponte, to inform the prospective jurors of the two alleged aggravating factors resulted in none of the jurors being adequately questioned on whether knowledge of those aggravating factors would have impaired substantially his or her ability to consider and weigh the mitigating factors. Defendant further alleges that the trial court improperly excused three jurors for cause.

A. Questions Concerning Relevant Aggravating Factors

Defendant argues that the trial court committed reversible error during the death-qualification phase of voir dire by failing, sua sponte, to question potential jurors about the aggravating factors the State would seek to establish during the penalty phase. Although the jurors were questioned about their views on the death penalty in general, the trial court did not ascertain whether the jurors could weigh evidence in mitigation if it was established that defendant was guilty of a murder committed during a kidnapping or for the purpose of escaping detection. Thus, defendant argues that he was denied the opportunity to intelligently challenge jurors who, with the knowledge of those aggravating factors, would automatically impose a death sentence.

Potential jurors were aware of the nature of the allegations against defendant as well as the existence and purpose of statutory aggravating factors. After completing a lengthy questionnaire, the court read the indictment to all of the prospective jurors. Thus, the potential jurors knew that the State would seek to prove that defendant had kidnapped Flax and then had murdered him in the course of that kidnapping. The potential jurors, however, did not know from the indictment that the State also alleged that the murder had been committed to escape detection.

Additionally, the trial court explained to the potential jurors the structure of the New Jersey Capital Punishment Act (the "Act"), N.J.S.A. 2C:11-3, and the bifurcated jury determinations regarding guilt and sentencing. The court also delineated the aggravating and mitigating factors, and explained the purpose of both such factors. During individual voir dire, the court alluded to examples of aggravating factors enumerated in the death-penalty statute:

By way of example of an aggravating factor; one, that the murder was outrageously or wantonly cruel or, two, that the defendant committed the murder for the purpose of escaping detection. Those are only two examples.

The court did not inform the potential jurors, however, which aggravating factors the State was seeking to prove against defendant.

Moreover, following the initial questioning by the court, defense counsel was afforded an unrestricted opportunity to pose questions to the venirepersons. Indeed, defense counsel used that opportunity to explore the "kidnapping" aggravating factor with some of the potential jurors, although not all. He did not discuss the "escaping detection" factor except for a brief mention with one prospective juror.

In capital proceedings, "The court in conducting the voir dire should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias." State v. Williams, 93 N.J. 39, 68 (1983) (Williams I) (footnote omitted). Although the fact is not dispositive, defendant made no request for voir dire questions concerning the "kidnapping" or "escaping detection" aggravating factors. In both State v. Williams, 113 N.J. 393 (1988) (Williams II), and State v. Biegenwald, 126 N.J. 1 (1991) (Biegenwald IV), the trial court denied defense-counsel requests to query potential jurors on the effect of the relevant aggravating factors.

We recognize that a demonstrated reticence to pursue questions concerning the alleged aggravating factors can be demonstrative of a "well-considered strategic attempt to limit juror exposure to questions concerning capital punishment" on the part of defense counsel. State v. Marshall, 123 N.J. 1, 93 (1991) (Marshall I). Counsel may very well "neither [seek] nor believe[] in an exhaustive voir dire process, seeming to wish that the court not overemphasize the qualification process." State v. Dixon, 125 N.J. 223, 247 (1991). To the extent that defense counsel makes strategic decisions to avoid particular aggravating aspects of the case during voir dire, the trial court should not interfere by conducting extensive examinations regarding those facts. Because defense counsel here did pursue the "kidnapping" aspect of this case with some jurors, we do not find that he evidenced a strategic decision to avoid that aggravating factor.

The purpose of voir dire is to ensure an impartial jury and a fair trial, a right that is heightened when a defendant faces the death penalty. State v. Perry, 124 N.J. 128, 155 (1991); State v. Hunt, 115 N.J. 330, 363 (1989); State v. Ramseur, 106 N.J. 123, 324 n.84 (1987). The "voir dire in a capital cause should probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially." State v. Erazo, 126 N.J. 112, 129 (1991).

Accordingly, any juror whose position on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath" is disqualified from serving on a penalty-phase jury. Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581, 589 (1980); Ramseur, supra, 106 N.J. at 255-56.

Because the sentencing authority "'has a constitutional obligation to evaluate the unique circumstances of the individual defendant,'" State v. Biegenwald, 106 N.J. 13, 48 (1987) (Biegenwald II) (quoting Spaziano v. Florida, 468 U.S. 447, 459, 104 S. Ct. 3154, 3161, 82 L. Ed. 2d 340, 351 (1984)), prospective jurors should, in certain circumstances, be questioned about the effect that relevant aggravating factors will have on their penalty-phase deliberations.

In Williams II, supra, we found that the trial court had abused its discretion when it denied defense counsel's request to ask prospective jurors whether they automatically would impose the death penalty on defendants who had committed murder during a rape. 113 N.J. at 417. We concluded that "the failure to inquire into whether any juror could consider the mitigation evidence if it was established that defendant was guilty of rape and murder denied counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role * * * ." Ibid.

The trial court's refusal to question jurors was a "serious error" and "a significant component of the deficiencies," which resulted in reversal of that defendant's sentence and conviction. Ibid. However, because of the poor quality of the overall voir dire we did not decide whether the error with respect to the alleged aggravating factors, standing alone, warranted reversal. Ibid.

Likewise, in Biegenwald IV, we determined that a trial court that refused to allow defense counsel to question potential jurors during voir dire about their ability to consider mitigating evidence should the State establish aggravating factor c(4)(a), that the defendant had two prior murder convictions, had committed serious error. As in Williams II, we did not hold that such an error standing alone automatically warranted reversal. Nor did we establish a per se rule that prospective jurors had to be questioned about the potential effect of each alleged aggravating factor on their penalty-phase deliberations. As we explained:

In Williams II, we recognized that the brutality of a rape and murder could blind venirepersons in the performance of their duties as jurors. Similarly, we are convinced that knowing a defendant had killed before could cause an otherwise fair-minded person to disregard evidence offered in support of mitigating factors.

[Biegenwald IV, supra, 126 N.J. at 31.]

Therefore, we concluded that voir dire "should include questioning about evidence of aggravating factors that will be presented [and that] may with reasonable likelihood" have the effect of rendering that juror substantially impaired in his or her ability to deliberate fairly during the penalty phase. Id. at 32. We conclude that such a likelihood exists with respect to murders committed during the course of a kidnapping.

A kidnap/murder is often a sensational crime, partly because of its infrequency. Unlike the situation with other murders, the FBI is often involved, especially when, as in the present case, the kidnapping was conducted for ransom. More importantly, the victimization in a kidnap/murder can endure for an extended period of time and, by design, involves terrorization of the victim's family. Thus, the kidnap/murder aggravating factor can cause "excessive, and deserved, sympathy for the victim," and should be delved into during voir dire. See Biegenwald IV, supra, 126 N.J. at 93 (Garibaldi, J., Dissenting). Thus, the pool of prospective jurors should have been questioned on the effect that the "kidnapping" aggravating factor would have on their deliberations.

The same cannot be said of murders committed to escape detection. Although such circumstances undoubtedly aggravate the criminal conduct, see State v. Hightower, 120 N.J. 378 (1990), that statutory factor simply does not have the capacity to enflame otherwise reasonable jurors. Although it may be better practice for trial courts to question jurors about all the aggravating factors at issue, subject to possible defense-counsel strategic objections, the trial court's failure to question the jurors about the "escaping detection" factor did not constitute error.

Nonetheless, even assuming that the trial court should have questioned the potential jurors about both factors, "such error * * * is not irremediable. [A] defendant's sentence may be upheld if the voir dire was otherwise so thorough and probing as to ensure that the jurors empaneled had the 'capacity to credit the evidence in mitigation.'" Biegenwald IV, supra, 126 N.J. at 34 (quoting State v. Bey, 112 N.J. 123, 154 (1988) (Bey II)). After reviewing the jury-selection process as a whole, we conclude that it was not constitutionally flawed. The voir dire of defendant's potential jurors was sufficiently probing to uncover potential biases and overcome any error associated with the failure to question prospective jurors about both of the aggravating factors.

Defendant also alleges that defense counsel's failure to question the potential jurors about the aggravating factors constitutes ineffective assistance of counsel. Defendant's claim is discussed with his other allegations concerning his counsel's alleged ineffective assistance, infra at (slip op at 176-79).

B. Adequacy of Overall Voir Dire

Jury selection took place over a seventeen-day period. The trial court and counsel individually questioned two-hundred and nine venirepersons. The voir dire resulted in fifty-five qualified jurors being selected. Neither side exhausted its peremptory challenges.

We have previously outlined what we consider to be effective means of carrying out a capital-cause voir dire. In State v. Erazo, supra, 126 N.J. at 128-29, we summarized that voir dire in a capital cause should be open-ended, thorough and searching, sensitive to attorney participation, and designed to elicit a potential juror's views, biases, and inclinations. Here, the trial court fulfilled all those requirements. It asked open-ended, thorough and searching questions designed to elicit a juror's biases and allowed defense counsel to participate extensively.

"An important ingredient in voir dire inquiry is the use of open-ended questions, which in our opinion are most likely to provide counsel and the court with insight into jurors' opinions and biases." Williams II, supra, 113 N.J. at 413. The trial court employed that technique extensively during voir dire. Typical of the court's approach is the following colloquy the court engaged in with prospective juror Robert J. Salerno, using open-ended questions to elicit his thoughts on the death penalty.

Q. Would you tell me if you have any personal opinions, beliefs or feelings about the death penalty?

A. I have a lot of conflicting personal opinions.

Q. Why don't you tell us about them. We want you to be free.

A. On the one hand I think it's a very cruel issue but on the other hand -- and I guess at the same time people who are proponents of it often refer to it as a deterrent. I don't necessarily view it as a deterrent but I can accept it as a law. I can accept the implementation of it as a law for those crimes for which it is a law.

Q. And do you believe there are appropriate -- as a result do you believe there are appropriate crimes that are appropriate for the death penalty?

A. Yes, I do.

Q. Can you tell us what they are?

A. I think that crimes of major violence, particularly where there may be a situation of repeated history of convictions of some sort. I think that major problems perhaps in drug related cases would be appropriate. I think those are really the only ones that immediately come to mind where I think it would be appropriate.

Q. You mean other than murder?

A. Well, I think that there would have to be a certain set of circumstances that at least from where I sit, that would make you feel that capital punishment would be appropriate in the case. I think there are perhaps some cases where a murder would be committed where I wouldn't necessarily think the circumstances warranted capital punishment but there would be others where I would think it would be.

Unlike the deficient voir dire in Biegenwald IV, in the voir dire here the trial court did not "suggest[] * * * that there is a 'correct' answer to the open-ended question 'what are your views on the death penalty?'" See 126 N.J. at 39. Instead, the court allowed prospective jurors to elaborate on their beliefs without prodding or suggestive comments. Here,

the trial court did not employ a rigid slot-defining format such as that described in [Williams II, supra, 113 N.J. at 414] (automatic life, automatic death, all others), but very often asked a completely open-ended, question of jurors focusing on whether they had any attitudes or opinions at all concerning the imposition of the death penalty. It did not attempt to force the jurors into any mode.

[State v. Dixon, supra, 125 N.J. at 246.]

Furthermore, unlike the voir dire in Biegenwald IV, not only did the trial court here "assure itself that the potential jurors would remain open to the option of life imprisonment," 126 N.J. at 40, defense counsel also stressed that issue during his examination of the prospective jurors. The voir dire also adequately "educated the potential jurors concerning the laws of New Jersey relative to murder and capital punishment." Id. at 42.

Moreover, "in capital cases trial courts should be especially sensitive to permitting attorneys to conduct some voir dire." Biegenwald II, supra, 106 N.J. at 30; accord Erazo, supra, 126 N.J. at 129 ["as long as counsel acts reasonably and responsibly, as counsel did here, voir dire should proceed uninhibited by" artificial time limits on questioning). Defense counsel was given ample opportunity to question prospective jurors in an unrestricted manner. Defense counsel explored several relevant areas of inquiry including reactions to drug abuse and psychiatric testimony, the latter of which constituted defendant's major defense in both the guilt and penalty phase of his trial. He engaged prospective juror Romilda Bryden in the following dialogue about drug use, the essential component of the defense theory:

Q. Can I ask you in general your feelings about illegal drug usage? I'm talking about cocaine basically. Do you think people who have a cocaine problem should be punished or should be helped?

A. I think they should be put in a place where they can be helped because punishing, I don't think, really helps them get rid of their problems. If they have to be institutionalized to be helped, I agree with that.

Similarly, defense counsel was able to elicit information on prospective juror Doris Fisher's opinion on drug use.

Q. Mrs. Fisher, I do have a question for you. It deals with your basic thinking on people who take illicit drugs, whether it be heroin or cocaine which are basically illegal drugs. Do you think people who take those should be assisted and counseled or should be punished?

A. If they're only taking them themselves, then they should be assisted and counseled.

Q. You'd have difficult with people who deal in drugs, I guess?

A. Right.

As previously mentioned, counsel also questioned some jurors about the kidnapping aspect of the crime. Prospective juror Paul Edson and defense counsel engaged in the following dialogue:

Q. * * * The first is to determine whether or not John Martini did anything at all illegal, you understand that?

A. Right.

Q. The State hopes to prove the content of the indictment, do you understand that?

A. Right.

Q. All right. You know from the indictment at least * * * you heard there was a kidnap situation and a murder, do you understand that?

A. From what I understand from Tuesday, yes.

Q. Okay. Now, you know that before you get to the penalty stage, Mr. Edson, you have to decide John did this thing, do you understand that?

A. Right.

Q. You have to determine among your fellow jurors that John did murder this kidnapped victim, do you understand that?

A. Yes.

Defense counsel asked similar questions of prospective juror Loretta Olsommer.

Q. That this is a kidnap-murder case. Do you remember that?

A. Right.

Q. Had you read anything about the case at all?

A. No, not at all, no.

Q. Does the fact that it's a kidnap-murder case, and that's pretty much all you know about because I think Judge Gaeta read the indictment to you --

A. I know what he said.

Q. All right. Now, let's assume that that exactly has happened, that I think the Judge told you this is a kidnap-murder case, right?

A. Right.

Q. So let's assume the jury comes back with a guilty verdict that Mr. Martini did it.

A. Right.

Q. Would you be swayed toward death before you thought any further about it?

A. No, not really.

The overall quality of the voir dire of Martini's prospective jurors suffered from none of the shortcomings that were resent in Biegenwald IV and Williams II. The similarities between the deficiencies in the overall voir dire in those two cases were "plentiful, obvious and disturbing." Biegenwald IV, supra, 126 N.J. at 30. We are convinced that, as a whole, the voir dire in this case was sufficiently probing "to weed out any prospective jurors who indicated through their answers that the facts of this case might impair their ability" to determine the proper sentence. No voir dire is perfect, but we are satisfied that defendant had sufficient opportunity to explore the biases of the potential jurors. Dixon, supra, 125 N.J. at 244. In view of the sufficiently-probing nature of the voir dire, any potential harm caused by the failure of the trial court and counsel to question prospective jurors on their views of kidnap-murders and murder to escape detection was harmless.

C. Exclusion of Three Jurors for Cause

Defendant also contends that the voir dire was inadequate because the trial court incorrectly excluded three members of the prospective-juror pool. Defendant contends that those jurors did not express views about the death penalty that "would prevent or substantially impair the performance of [their] duties as [jurors] in accordance with [their] instructions and oath" as described in Adams, supra, 448 U.S. at 45, 100 S. Ct. at 2526, 65 L. Ed. 2d at 589.

1. Timothy Wedeen

Defendant contends that the court incorrectly excused prospective juror Timothy Wedeen from the jury pool. According to defendant, Mr. Wedeen did not articulate personal opinions that would prevent him from carrying out his oath as a juror. We disagree.

Mr. Wedeen expressed significant doubts about his ability to impose a death sentence under any circumstances.

Q. What are your feelings about the death penalty?

A. I don't agree with it. Capital punishment is barbaric.

Q. Are there any crimes that you think it is appropriate to impose the death penalty?

A. No, I do not.

Q. None at all?

A. Not really, no. I feel life without parole is a more appropriate measure.

Q. Well, you understand that you'd be placed under oath and you would have a duty to perform, that would be to listen to the evidence, accept the legal principles as the Court explains them to you. Do you understand that?

A. Yes, I do.

Q. And once having taken such an oath, if the facts warrant it and the principles warrant it, those combined, they warranted the imposition of the death penalty, would you be able to impose the death penalty?

A. I would find it difficult. My judgment would be affected by my personal feelings. I could not say that it wouldn't.

We recognize that Mr. Wedeen stated in response to questions from defense counsel that he could follow his oath as a juror and vote for a death sentence if the evidence warranted such a finding. However, the prospective juror immediately expressed reluctance in response to questions from the prosecutor.

Q. * * * What we're trying to find out is whether or not you would be able to follow what the Court is going to be asking you to do should this matter reach the penalty phase. Now, do you understand what I'm talking about.

A. * * * The answer to your question, if I'm picked for jury duty and the law says I have to make a fair decision, I will.

Q. Would you be able to make that decision based on the facts in the case putting aside your personal feelings?

A. I don't know. I honestly do not know. I feel very strongly about this issue.

Finally, in response to an inquiry from the trial court, Mr. Wedeen related that his judgment would be impaired by his beliefs regarding capital punishment.

Q. * * * We're just trying to find out your honest views so that we have a jury who will listen to the evidence and make the decision based on the evidence and the proofs posed. I know it's difficult when you have strong feelings one way or another about a certain case.

A. My judgment would be impaired by my feelings, yes. I have to be honest and say yes, it would when it comes to that issue. I wish I could say otherwise but that's how I feel.

Over the objection of defense counsel, the trial court excused Mr. Weeden. Concerning Mr. Weeden's responses the court concluded: "If he is not telling us that his ability to impose the death penalty may be impaired by his beliefs, he's at least telling us, 'I don't know.'" Mr. Weeden's response was like that of the prospective juror in State v. Pennington, 119 N.J. 547 (1990), who stated that if the law conflicted with her conscience, she would follow conscience. Id. at 589. We found no error in her excusal. Ibid. The trial court is afforded substantial deference in its determinations concerning the qualification of prospective jurors. State v. Hunt, supra, 115 N.J. at 362. Because Mr. Weeden indicated that his emotions would control his penalty-phase deliberations, his excusal for cause was well within the trial court's discretion.

2. Ronald Vladyka

Defendant similarly challenges the exclusion of prospective juror Ronald Vladyka. Mr. Vladyka expressed ambivalence about the possibility of voting for a death sentence.

Q. Do you have any feelings or beliefs about the death penalty?

A. I don't believe in it.

Q. Under any circumstances?

A. Well, I just -- I don't know. I just don't believe in it. I really can't give a reason why.

Q. Do you think there are any crimes where the death penalty is an appropriate penalty?

A. Well -- no.

Q. None at all?

A. No, not really.

In response to rehabilitating questions from defense counsel, Mr. Vladyka indicated, with significant reluctance, that he could follow his oath as a juror and vote for a death sentence: "I guess if everything was in place and I believed in it, I mean, you know it is hard to say yes or no." The court excused Mr. Vladyka after the following question and answer in which he expressed his inability to announce a sentence of death in open court:

Q. If maybe you are the Foreperson, would you be able to announce that verdict in open Court?

A. No.

Again, the trial court was within its discretion to excuse Mr. Vladyka. "[A] juror's bias for or against capital punishment need not be shown with 'unmistakable clarity.'" Pennington, supra, 119 N.J. at 588 (quoting Ramseur, supra, 106 N.J. at 256). The prospective juror in this instance indicated an inability to fairly weigh the mitigating and aggravating factors prior to reaching a decision on sentence.

3. Florence Zappala

Defendant also challenges the exclusion of prospective juror Florence Zappala, arguing that she was excluded because of her stated reticence about voting for a death sentence. However, Mrs. Zappala also indicated her inability properly to evaluate the testimony of police officers.

Q. You were asked if you would believe the testimony of a police officer just because the party testifying was a police officer, and you said yes. Why is that?

A. I think I would. I mean, I would be inclined to.

Q. Do you think you would give more weight to the testimony of a police officer just because it's a police officer and you had a civilian telling you one thing and a police officer telling you something else?

A. I think I would have to think about that a while. It's all according to the person, I think, too.

Q. You can't have jurors who come in and say, "Well, anything a police officer tells me I'm going to believe." We want jurors who will listen to the evidence and fairly evaluate the evidence?

A. Balance.

Q. Now, based on your answer to the question, we don't know if you can do that. Only you can tell us.

A. I don't know. I mean, it would be a question I would think about, I'd be inclined to believe a police officer, but I don't know. You know, I should think he'd be telling the truth.

The trial court stated its reasons for excusing prospective juror Zappala:

"The reason for excusing the juror is basically based upon her answers concerning the police officer. At several times she was asked and still in the final analysis she may just give a little more weight to that testimony of a police officer only because it was a police officer, and the reason I didn't look up to you for your objection earlier is because people spend as much time as they have here, I don't want to ask them one question and send them on their way.

The trial court was certainly within its discretion in excusing Mrs. Zappala based on her remarks concerning the veracity of police officers.

To summarize our findings about the adequacy of the voir dire, the trial court should have questioned the potential jurors about the effect that aggravating factor c(4)(g) (murder committed in the course of a kidnapping) would have had on their ability to impose the death penalty. However, given the otherwise adequate scope of voir dire, we are satisfied that the trial court conducted a sufficiently-thorough questioning to probe into the potential biases of the prospective jurors. The trial court's questioning of the jurors was "sufficiently calculated to produce a fair and unbiased jury." Dixon, supra, 125 N.J. at 247. We further conclude that the trial court properly exercised its discretion in excusing the three prospective jurors for cause.

III

Guilt Phase

A. Constitutionality of the Act

Defendant argues that the death-penalty statute violates the prohibition against cruel and unusual punishment contained in the Eighth Amendment of the federal constitution by failing adequately to narrow the class of defendants eligible for death and by failing to provide for sufficient appellate review. We have repeatedly rejected similar arguments, see, e.g., State v. Purnell, 126 N.J. 518, 546 (1992); Marshall I, supra, 123 N.J. at 169; State v. Moore, 122 N.J. 420, 486 (1991); Ramseur, supra, 106 N.J. at 182-90, and continue to reject them today.

B. Necessity of Including Alleged Aggravating Factors in Indictment

For the first time defendant contends on appeal that N.J.S.A. 2C:11-3c(2)(e), that portion of the Act that requires the prosecuting attorney to give notice of the statutory aggravating factors he or she intends to prove at the penalty-phase proceeding violates the New Jersey Constitution. Defendant contends that the aggravating factors established in c(2)(e) amount to elements of the crime of "capital murder" and, as such, must be presented to a grand jury and included in the murder indictment before a defendant may face a death-penalty trial. We disagree.

Capital-murder prosecutions begin with a grand-jury indictment for knowing and purposeful murder. Subsequently, the prosecutor, acting under guidelines in effect throughout the State, determines if the State has sufficient evidence to establish any of the statutory aggravating factors that make a murder eligible for a capital sentence. See State v. Koedatich, 112 N.J. 225 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). If that determination is made in the affirmative, a Notice of Aggravating Factors, indicating the State's intention to seek a capital sentence, is served on the defendant pursuant to N.J.S.A. 2C:11-c(2)(e). That provision states:

Prior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor, the prosecuting attorney shall give notice to the defendant of the aggravating factors which he intends to prove in the proceeding.

Defendant contends that that process is defective. He argues that the death-penalty statute actually creates two separate crimes: murder and capital murder. Under defendant's theory, the aggravating factors are the functional equivalent of elements of the crime of capital murder, thereby necessitating their presentment to a grand jury and inclusion in an indictment. The State asserts that the statutory aggravating factors affect only the sentence for knowing and purposeful murder and need not be included in the indictment.

Defendant's argument rests on two separate but interrelated provisions of the Constitution. Article I, Paragraph 8 provides:

No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases now prosecuted without indictment, or arising in the army or navy or in the militia, when in actual service in time of war or public danger.

Paragraph 10 of Article I provides:

In all criminal prosecutions the accused shall have the right * * * to be informed of the nature and cause of the accusation * * *.

To satisfy constitutional mandates, an indictment must first "'inform the defendant of the offense charged against him, so that he may adequately prepare his defense * * *.'" State v. LeFurge, 101 N.J. 404, 415 (1986) (quoting State v. LeFante, 12 N.J. 505, 509 (1953)). "Second, the indictment must be sufficiently specific to enable the defendant to avoid a subsequent prosecution for the same offense. Finally, the indictment must be sufficiently specific 'to preclude the substitution by a trial jury of an offense which the grand jury did not in fact consider or charge.'" LeFurge, supra, 101 N.J. at 415 (quoting State v. Boratto, 80 N.J. 506, 519 (1979) (citations omitted)).

The Constitution insures, as a matter of fairness, that defendants will be adequately informed of the alleged elements of the crimes with which they are charged so that they may mount an informed defense. In addition, the indictment prevents the prosecution of unfounded charges of criminal behavior. Those concerns are not raised, however, by factors that affect only the severity of the sentence that a convicted defendant faces.

In State v. Washington, 47 N.J. 244 (1966), we held that the Constitution does not require a grand jury presentment before a convicted defendant may receive an enhanced sentence based on his status as a habitual offender. In Washington, the defendant was convicted of breaking, entry, and larceny. Id. at 246. A short time thereafter, the prosecutor, acting pursuant to statute, prepared an accusation charging the defendant with being a four-time offender. The defendant pleaded guilty to the accusation and, as a result, was sentenced to an extended term of imprisonment. Id. at 247.

The defendant challenged his sentence, arguing that his status as a repeat offender was an integral and inseparable part of the underlying criminal charge and should have been included in the original indictment as a matter of constitutional mandate. Ibid. We disagreed. The critical distinction in our analysis was that the statute in question did "not create a new substantive crime, but rather imposed a greater penalty for the particular crime for which the defendant [had been] convicted." Id. at 248. Thus, we concluded that the repetitive nature of defendant's convictions did not have to be included in the indictment. Ibid.; accord Buckley v. Butler, 825 F.2d 895, 902-03 (5th Cir. 1987), cert. denied, 486 U.S. 1009, 108 S. Ct. 1738, 100 L. Ed. 2d 201 (1988) (repeat-offender status "relates only to the sentence for the new crime of which defendant has been convicted").

The Act defines criminal homicide as having just two elements, a mental state of purposeful or knowing, and causation. Both of those elements must be presented to a grand jury and included in the murder indictment. The aggravating factors, on the other hand, merely enlarge the available sentencing options for certain defendants.

That distinction was recognized in State v. Price, 195 N.J. Super. 285, 300 (Law Div. 1984), in which the trial court in a capital-punishment proceeding found that the state constitutional provisions relied on by defendant here "relate[] to indictment by Grand Jury of the offense charged not the particular sentence or punishment," and held that the statutory aggravating factors were not indispensable components of a capital-cause indictment.

The United States Supreme Court reached a similar Conclusion in Poland v. Arizona, 476 U.S. 147, 106 S. Ct. 1749, 90 L. Ed. 2d 123 (1986), in which it examined the double-jeopardy implications of a trial court's erroneous Conclusion regarding the existence of aggravating factors during the penalty-phase proceeding. The Court stated that "aggravating circumstances are not separate penalties or offenses, but are 'standards to guide the making of [the] choice' between the alternative verdicts of death and life imprisonment." Id. 476 U.S. at 156, 106 S. Ct. at 1755, 90 L. Ed. at 132 (quoting Bullington v. Missouri, 451 U.S. 430, 438, 101 S. Ct. 1852, 1858, 68 L. Ed. 2d 270, (1981)).

In recent years, however, we have recognized "the functional similarity of aggravating factors * * * to the traditional proof of 'elements of an offense'" when determining the State's burden of proof with respect to the weighing of such elements. Biegenwald II, supra, 106 N.J. at 59. In Biegenwald II we stated:

Technically, of course, the death penalty is imposed as part of the sentencing proceeding, and under ordinary analysis, the State need not prove its contentions at the sentencing proceeding beyond a reasonable doubt, even those that are statutorily prescribed. Here, however, the sentencing proceeding calls for a different treatment because death is 'profoundly different,' Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973, 990 (1978) (plurality opinion), both in terms of its consequences and because it is a procedurally unique sentencing scheme * * *.

[Id. at 59-60 (citations omitted).]

In another context, in Ramseur, supra, we noted that

"it its clear to us, however, that functionally, the aggravating factors in the Act are indistinguishable, for this purpose, from the elements of the crime. For example, no more or less than premeditation under our prior law, proof of an aggravating factor could mark the difference between imprisonment and death. [106 N.J. at 201 n.27.]

Recently, in Purnell, supra, we held that when the State sought to establish, as an aggravating factor, that a murder was committed in the course of a felony, the defendant was entitled to have the jury consider the non-capital verdict of felony murder during the guilt-phase deliberations. 126 N.J. at 534. Thus, we concluded that in such circumstances, a charge of felony murder must be presented to the grand jury and included in the murder indictment. Ibid.

Martini, of course, was charged in the indictment with felony murder and the crime of kidnapping, the basis of aggravating factor c(4)(g) (killing while engaged in the commission of a kidnapping). With respect to the other asserted aggravating factor, c(4)(f) (killing to escape detection), we stated in Purnell that

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.

[126 N.J. at 533.]

We reaffirm that reasoning today. The Legislature clearly did not intend for each alleged aggravating factor to be included in the murder indictment. Unlike the statutes in other states, our Act does not expressly require that the State allege the aggravating factors in the indictment. For example, the Alabama and Indiana statutes create such a requirement. Ala. Code § 13A-5-40; Ind. Code § 35-50-2-9 (1985). Furthermore, in some instances, inclusion of alleged aggravating factors in the indictment would create the unwanted situation of having the factors read to the jury at the start of trial. For example, if the State were seeking to establish aggravating factor c(4)(a), that defendant had previously been convicted of murder, a reading of the indictment to the jury during the guilt phase could substantially prejudice the trial's outcome. See Washington, supra, 47 N.J. at 249.

The Act also adequately ensures that capital-cause defendants are afforded both of the protections contemplated by the Constitution: adequate notice and well-founded prosecutions. As previously stated, a defendant facing the death penalty is served with a Notice of Aggravating Factors during the initial stages of prosecution. The defense is put on notice of the State's intentions and is given ample opportunity to prepare a rebuttal of the aggravating factors alleged.

Furthermore, defendants have the opportunity to challenge the sufficiency of any alleged aggravating factors. We permitted judicial scrutiny of prosecutorial charging decisions at the pretrial level in State v. McCrary, 97 N.J. 132 (1984). In that opinion we held that defendants who had been served with a notice of an aggravating factors could, through summary proceedings before the trial court, challenge the sufficiency of the evidence to support those factors. Id. at 142. The review established in McCrary has resulted in the nullification of a defendant's exposure to capital sentencing in at least one case in which the prosecutor had originally sought a death sentence. See State v. Matulewicz, 115 N.J. 191 (1989).

Nor does our holding run afoul of the dictates of Mullaney v. Wilber, 421 U.S. 684, 698, 95 S. Ct. 1881, 1889, 44 L. Ed. 2d 508, 519 (1975). In Mullaney, the United States Supreme Court held that fundamental fairness prevented a State from requiring that a defendant prove by a preponderance that he or she killed in the heat of passion on sudden provocation in order to be convicted of manslaughter instead of murder. Ibid. The Court accepted the State's argument that murder and manslaughter were not distinct crimes but rather different degrees of the generic offense of felonious homicide, and that provocation, if established, concerned only the sentence that a defendant would receive. Id. at 688, 95 S. Ct. at 1884, 44 L. Ed. 2d at 513. However, the Court found that "the fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter, differ significantly." Id. at 698, 95 S. Ct. at 1889, 44 L. Ed. 2d at 519. Thus, applying reasoning that favors "substance rather than * * * formalism[,]" the Court concluded that the burden of proof could not be shifted to the defendant. Id. at 699, 95 S. Ct. at 1890, 44 L. Ed. 2d at 519-20. In so doing, the Court warned that States may not "redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment." Id. at 698, 95 S. Ct. at 1889, 44 L. Ed. 2d at 519.

No such concerns are raised by our statute. Section c(2) expressly provides that the State has "the burden of establishing beyond a reasonable doubt the existence of any aggravating factors." Thus, the burden of proof does not switch to the defendant at any time, and the prohibition articulated in Mullaney is not circumvented.

We conclude that Section c(2)(e) is constitutional; that defendant was properly charged with kidnapping (the underlying felony supporting aggravating factor c(4)(g)) in the indictment; and that to charge aggravating factor c(4)(f), (murder to escape detection) in the indictment was not necessary.

C. Admissibility of Defendant's Confessions

Defendant argues that his oral and written confessions should have been suppressed by the trial court because they were obtained in violation of his federal-constitutional and New Jersey common-law right to remain silent. Defendant contends that his request to speak to Afdahl before giving a statement to police amounted to an invocation of his right to remain silent as recognized in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thereafter, defendant asserts, investigating officers failed scrupulously to honor his right by initiating interrogation without reciting a fresh set of Miranda warnings. Defendant also argues that all of the items seized from his apartment and hotel rooms should also have been suppressed as fruits of the illegally-obtained statement. We reject defendant's arguments.

Martini was first informed of his Miranda rights by Detective Thomas Dalton of the Fort Lee Police Department when he was first arrested, at about 8:00 p.m. on January 25, 1989. Dalton asked defendant if he wished to talk. After declining to make a statement, defendant said "you're the FBI. I know you're the FBI. I'm John Martini. You got me, but you already know that." He was next read Miranda warnings at 10 o'clock that evening in Fort Lee Police Headquarters. He was read rights again at 11:34 p.m., signing a form produced by the Fort Lee police. The same type of form was used at 11:39 p.m. by Sergeant Michael Carlino of the Bergen County Prosecutor's office. When defendant was asked to read and sign the form, however, he said that he could not "see a * * * thing without my eyeglasses." Defendant signed the form after his glasses were given to him.

At least two law-enforcement officers were present at each reading of the Miranda rights. Although Martini refused to make a statement to Detective Dalton, he signed waiver forms after each subsequent issuance of the Miranda warnings indicating that he was willing to make a statement.

At 12:35 a.m. on January 26, 1989, Sergeant Michael Trahey of the Bergen County Prosecutor's Office and FBI special Agent Edwin Petersen gave defendant his fifth set of Miranda warnings that night. Defendant again indicated that he understood his rights and that he would speak to them. The interview began with Martini asking Trahey and Peterson what they "had against him." Trahey responded that it was a "two-way street" and that he would not lay out the entire case unless Martini agreed to talk. Martini agreed to describe his complete involvement in the case but asked to speak first with Afdahl, who apparently wished to speak to defendant at that time as well. At the pretrial hearing, Trahey testified that defendant had stated that "once he was allowed to speak with Therese * * * he would freely talk with us about the entire matter." He further testified that Martini had stated that he wanted to tell Afdahl "that he was going to cooperate with us and that he was going to tell us what had happened and that he wanted her to be aware of that fact." At the pretrial hearing Peterson testified that Martini had said he wanted to tell Afdahl that he was going to tell the truth and that she should tell "the whole truth" to the officers. The investigators agreed to let Martini speak with Afdahl, and the two met for three minutes. Trahey, the only law-enforcement officer at the meeting, testified at the pretrial hearing that Martini had told Afdahl, "Theresa, I'm now going to cooperate with them and I'm going to tell them what happened."

After that meeting, Martini was not given any further Miranda warnings that evening. Subsequent to the meeting, he signed two forms giving his consent to search his apartment and hotel rooms. He then was questioned by Trahey and Petersen, from approximately 1:30 to 4:15 a.m., about the specifics of the kidnapping and murder of Irving Flax. At 4:15 a.m. defendant signed a form consenting to the telephone company's release of telephone toll information with respect to the telephone in his apartment. He then agreed to make a sworn statement, which was transcribed from 5:02 a.m. to 5:42 a.m. At 6:15 a.m., he signed a form consenting to the telephone company's release of telephone toll information with respect to the telephones in the hotel rooms that he and Afdahl had occupied.

In State v. Hartley, 103 N.J. 252 (1986), we adopted the prevailing federal standard that once a defendant asserts the right to remain silent, "law-enforcement authorities must, at a minimum, readminister the Miranda warnings" before initiating interrogations. Id. at 256. The defendant in Hartley was given Miranda warnings at the time of his arrest and immediately "asserted in clear and unequivocal terms his right to remain silent." Id. at 255. At that time, no questions were asked of the defendant. Approximately one hour later, police approached Hartley and, without issuing a new set of Miranda warnings, reinitiated interrogation. Id. at 258-59. We concluded that the investigator's failure scrupulously to honor the defendant's invocation of the right to remain silent violated both Miranda's prophylactic rules and the accused's privilege against self-incrimination. Id. at 256.

In State v. Harvey, 121 N.J. 407 (1990), cert. denied, U.S., 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991), we applied the holding in Hartley to circumstances in which a defendant's invocation of the right to remain silent was less clear than in the previous case. The defendant in Harvey had been in custody for several days during which he expressed his repeated reluctance to talk to police. After receiving a set of Miranda warnings the defendant told officers that he would talk to them but that he first wanted to speak to his father. Id. at 417. Questioning ceased. More than three hours later, Harvey's father was brought to the jail where his son was being held. After a fifteen-minute meeting, Harvey was returned to the officers. Ibid. Interrogation resumed without a new set of Miranda warnings and the defendant confessed to murder. When the defendant subsequently was taken to the prosecutor's office to prepare a formal confession, he was issued a new set of Miranda warnings. He demanded an attorney and questioning ceased. Ibid.

We found that the defendant had invoked his right to remain silent by asking to speak to his father. We began our analysis by noting that the defendant's request precipitated "a significant break in the interrogation," amounting to approximately three-and-one-half hours. Id. at 418-19. However, we also declared that "what makes the interruption significant is not its length so much as its nature" because the defendant, "after three days in custody, [asked] for the chance to consult with a close family member." Id. at 419. In addition, we noted that "defendant's conduct during three days of interrogation and his refusal to answer questions" were expressions of his unwillingness to talk with police. Finally, we found important "what happened when police finally did give" Harvey a new set of Miranda warnings after his oral confession. "Defendant immediately demanded an attorney be fore any statement could be reduced to writing. It is no stretch to imagine that defendant would have requested an attorney had the police given him warnings when they first interrogated him after he had met with his father." Id. at 420.

Defendant's request to speak to Afdahl prior to talking to officers is materially different from the request made in Harvey in several respects. Prior to his request, defendant did not show a continued reluctance to talk to police. To the contrary, Martini signed forms indicating that he waived his right to remain silent. Defendant did not state, "'I don't believe I want to make a statement at this time[,]'" Hartley, supra, 103 N.J. at 258, nor did he "'indicate[ that] he did not want to talk about it * * * .'" State v. Bey, 112 N.J. 45 (1988) (Bey I). Instead, he voluntarily told Trahey and Petersen that if he could speak to Afdahl, he would tell them about his "complete involvement" in the kidnapping and murder of Flax.

Moreover, although defendant argues that his relationship with Afdahl was that of two close family members, we find her status as a participant in the then-alleged crimes to be more significant. This is not a situation in which a defendant created a lengthy gap in an interrogation to seek advice from someone outside of the relevant criminal activity. Afdahl was a major participant in the kidnapping and murder about which defendant was to be questioned. She was not an outside advisor but a likely co-defendant, potential informant, and possible alibi witness. In their two-to-three-minute conversation overheard by Officer Trahey, Afdahl did not consult with defendant. Indeed, defendant argues that he met with Afdahl not to seek advice but to inform her of his impending confession.

In State v. Bey, 112 N.J. 123 (1988) (Bey II), in which the defendant asked to lie down so that he could think about what had happened prior to resuming interrogation, we found that that request did not constitute an invocation of the right to remain silent. Id. at 136. "Law enforcement officials * * * are not obliged to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning." Id. at 136-37. Like the defendant in Bey II, Martini "did not ask for an attorney or refuse to sign a waiver of his rights. Similarly, he did not refuse to continue the questioning, and did not indicate in any manner that he wanted to end the interrogation." Id. at 138.

Defendant's request to speak with Afdahl did not amount to an invocation of his right to remain silent. The record does not indicate that defendant, as the defendants in Hartley or Harvey, was unwilling to make a statement before talking with Afdahl, and wished her advice. Rather, he merely wished to inform Afdahl of the decision he had already made to give a statement to law-enforcement officers. Nor is there anything in the record, such as a demand for an attorney by defendant before his statement was transcribed, to suggest that "defendant would have requested an attorney had the police given him warnings when they first interrogated him after he had met with" Afdahl. Harvey, supra, 121 N.J. at 420. We conclude, therefore, that defendant's statements and the fruits thereof, including his consents to the searches conducted by police, were properly obtained and admitted into evidence.

D. The Trial Court's Comments Concerning Defendant's Incarceration

Defendant argues that he was deprived of his state- and federal-constitutional rights to a fair trial and the presumption of innocence because the trial court informed prospective jurors that he was incarcerated. We do not agree.

On the first day of jury selection, the trial court informed prospective jurors that defendant was incarcerated in the county jail. The court stated:

Now, there's one other thing that I must address. On occasion you will see Mr. Martini in the company of Sheriff's Officers. The reason for that, in a capital case such as this where the charge is murder, our law does not provide for bail. The law does not provide for bail, so Mr. Martini is being held in the County jail. That is the only reason he's being held in the County jail. The jurors are not to infer that because he is being held, that he is guilty. He is presumed innocent until he's proven guilty beyond a reasonable doubt. You should draw no adverse inference from the fact that he is in custody. He's only in custody at this point because of the law. The Legislature has made it such. They do not allow for bail in a capital case, and that's not to be held against him. No adverse inferences are to be drawn. That's just the way it is.

There was no defense objection to the instruction. A similar instruction was given to the second panel of prospective jurors:

You may notice during the course of the proceeding that Mr. Martini's accompanied by a Sheriff's officer. The reason for that is because the law in this State states that bail shall not be set where someone is charged with murder where the State is seeking the death penalty. The fact that that is the law and that he is incarcerated should not in any way influence your thinking about his guilt or innocence. No inferences are to be drawn because of that. That is simply the law, and please keep that in mind. I'll address that again later.

Defense counsel objected a short time after the second set of instructions had been given:

While we're waiting, Judge, I would like to enter an objection for the record about my client being arrested by guards or being surrounded by guards earlier, and I think it would prejudice the entire panel against my client knowing that he is being patrolled by guards and not subject to bail and, consequently, I think that the burden has shifted to the defense to prove his innocence.

The prosecutor responded by suggesting that defense counsel had agreed previously to the charge. The trial court answered:

Well, I don't know if it was agreed, but I'm sure the argument, if I hadn't instructed the jury and he was seen in the company of the Sheriff's officers, would be that the jury's now going to speculate, and I think the instruction was clear. It was a proper instruction. We'll repeat that and make sure the jury is not to draw any inferences, and that its only because of the Legislature and the law passed that he is in custody and for no other reason.

Defendant argues that the instructions denied him his rights to due process, equal protection, and a fair trial under both the federal and state constitutions.

Defendant makes an analogy to instances in which a defendant is compelled to appear for trial in a prison uniform or handcuffs. The United States Supreme Court condemned that practice in Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). In Estelle, the defendant appeared at trial in prison garb after his request for civilian clothes had been denied. The Supreme Court noted that "courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption [of innocence] so basic to the adversary system." id. at 504, 96 S. Ct. at 1693, 48 L. Ed. 2d at 130.

The Court held, however, that the error could be harmless. Where a defendant was being tried for an offense committed while in confinement or for an escape, compelled prison attire would be harmless because "'no prejudice can result from seeing that which is already known'" or that would become known in any event. Id. at 507, 96 S. Ct. at 1694, 48 L. Ed. 2d at 132 (quoting United States v. Henderson, 472 F.2d 556, 557 (5th Cir.), cert. denied, 411 U.S. 971, 93 S. Ct. 2166, 36 L. Ed. 2d 694 (1973)).

The policy of compelling defendants to appear in prison garb was also condemned in State v. Carrion-Collazo, 221 N.J. Super. 103, 112-13 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988). As in the case of the federal rule, the court held that such an error could be harmless. "We are satisfied that the due process rights of a defendant can be sufficiently safeguarded, * * * even when a defendant's incarceration is apparent to the jury, by a proper voir dire of the jurors and a cautionary instruction * * *." Id. at 112. In Carrion-Collazo, defense counsel requested an instruction warning potential jurors not to draw any inferences from the defendant's clothing, and the matter was discussed during voir dire. Id. at 106-07.

In Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986), a defendant seeking reversal of his conviction invoked Estelle after he had been compelled to go through trial with four uniformed state troopers sitting in the front row of the spectators' section. The Supreme Court unanimously rejected his claim, holding that not "every practice tending to single out the accused from everyone else in the courtroom must be struck down." Id. at 567, 106 S. Ct. at , 89 L. Ed. 2d at 533. The Court recognized "that jurors are quite aware that the defendant appearing before them did not arrive there by choice or happenstance." Ibid. "We have never tried," the Court continued, "and could never hope, to eliminate from trial procedures every reminder that the State has chosen to marshal its resources against a defendant to punish him for alleged criminal activity." Id. at 567, 106 S. Ct. at , 89 L. Ed. 2d at 533-34.

The Court held that the presence of security officers was not inherently prejudicial because of "the wider range of inferences that a juror might reasonably draw from the officers' presence." Id. at 569, 106 S. Ct. at 1346, 89 L. Ed. 2d at 534. Although the presence of guards may be taken as a sign that a defendant is dangerous or culpable, it need not be. "Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence." Id. at 569, 106 S. Ct. at 1346, 89 L. Ed. 2d at 534-35.

Courts have not been as sensitive to references to a defendant's incarceration as they have been to the forced wearing of prison garb. In State v. Childs, 204 N.J. Super. 639, 651-52 (App. Div. 1985), the court found no error as a result of a passing reference to a defendant's incarcerated status. On direct examination, the defendant in Childs indicated that she kept money hidden in her bra because she had been robbed since "I have been here." On cross-examination, the prosecutor asked, "you stated that you started keeping money in your bra because money has been taken since you have been here. You mean in custody?" Id. at 651. The trial court refused to grant a mistrial, finding the error "too insignificant" to warrant a mistrial. Ibid.

The Appellate Division affirmed. The court noted that the "reference to custody was fleeting and inadvertent." Id. at 651-52. The court continued, "It cannot have surprised the jury to hear about [the defendant] being in custody because they knew she had been stopped on the road, taken to the police station and searched." Id. at 652. Significantly, the court also noted that the prejudicial effect of the remark must not have been too great, as the defendant was acquitted of the most serious of the charges that she faced. Ibid.

Defendant argues that if the courts actively discourage the mere suggestion that a defendant is incarcerated, then specifically telling the jurors that defendant is in jail can never be countenanced, at least not without a waiver from defendant. In addition, defendant asserts that the range of possible inferences that a jury could draw from the presence of Sheriff's officers was negated by the court's instructions, leaving jurors with only one possible inference: that he is both dangerous and guilty. We disagree for several reasons.

The trial court did more than merely alert the potential jurors that defendant was incarcerated. The reason that the court addressed the jurors was to instruct them not to draw any negative inferences from defendant's status. That the trial court concluded that the presence of officers could have undermined the fairness of the trial is clear. Steps were then taken to ensure that no unfairness would ensue. The trial court's instructions were not only permissible, they were the preferable course of action.

We also note that defendant's objection is curious in light of subsequent developments at trial. During direct examination, defense counsel elicited from Dr. Greenfield, one of defendant's expert witnesses, that Martini had been incarcerated since his arrest. Dr. Greenfield testified that he had given defendant three psychological screening tests at the county jail. In addition, during cross-examination of Alice Martini she made an unsolicited reference to her husband's incarceration. Defense counsel did not object.

At any rate, the trial court's instructions did not harm defendant. To the extent that his incarceration was brought to the attention of prospective jurors, it was done for the purpose of ensuring that defendant would not be prejudiced.

E. Inclusion of Threats by Defendant Toward Mrs. Flax in Recording of Telephone Conversation

At trial, the State moved into evidence the tape of the telephone conversation between defendant and Marilyn Flax. That conversation had been taped on January 23, 1989, the day of the kidnapping. In the conversation defendant repeated his demand for ransom for the safe return of her husband and arranged for the delivery of the money. A transcript of the conversation was given to the jurors, who also listened to an audiotape of the conversation.

Prior to trial, defendant moved to excise the portions of the conversation from the transcript and tape in which he had threatened the lives of Mr. and Mrs. Flax, stating that he would have them killed by a third party if the police were notified. Defendant identified himself as "Tony."

[Martini:] I have to emphasize this. When I pick up that money --

[Mrs. Flax:]-- What?

[Martini:] And I leave.

[Mrs. Flax:] Yeah.

[Martini:] Okay.

[Mrs. Flax:] Yeah.

[Martini:] I will release your husband.

[Mrs. Flax:] Right.

[Martini:] But I'm going to tell you right now.

[Mrs. Flax:] Yeah.

[Martini:] If there are people watching me pick up that money --

[Mrs. Flax:] -- Tony --

[Martini:] -- I'm going to tell you right now.

[Mrs. Flax:] What?

([Martini:] I'm going to tell you right now. You let the police pick me up even later, I'm going to tell you now, someone else will come; maybe in two days, kill the two of ya's.*fn1

[Mrs. Flax:] -- Tony --

[Martini:] -- I'm telling you right now.

[Mrs. Flax:] I told you I'm not calling the cops. You told me it was just you, now you have a whole --

[Martini:] I'll have somebody take care of you. I can't -- I can't take a chance that you're going to do this to me.)

[Mrs. Flax:] All right. So I'll see you at 7:30. All right.

[Martini:] 7:30 back of the Forum.

[Mrs. Flax:] Dark jacket, the back of the Forum, in Paramus, and you'll wave to me.

The portion in parenthesis, commencing with the underlined word "Martini" and concluding with the underlined word "me," is the specific portion of the tape defendant requested be excised.

Defendant contends that the admission of the unredacted transcript violated his federal and state rights to due process and a fair trial. At pretrial, defendant argued that the threat against Mrs. Flax amounted to an incident of uncharged misconduct that was too prejudicial to be admitted into evidence. The State took the position that the threat was admissible either under Evidence Rule 55 as evidence of defendant's "intent and * * * state of mind" or independently as part of the res gestae -- a component of the kidnapping for which defendant was standing trial. The trial court ruled in favor of the State, although it is unclear which argument it adopted:

That will remain. It's not an admission or evidence of a crime that this defendant may have committed. It's part of the res gestae. It goes to show his motive, his intent and will remain.

Defendant now contends that the trial court improperly admitted the evidence under Rule 55 as proof of defendant's motive and intent. Defendant also argues that even if the evidence was properly admitted under Rule 55, its potential for prejudice substantially outweighed its probative value. Hence, he contends that the evidence was inadmissible under Evidence Rule 4. In addition, defendant argues that the evidence should have been accompanied by a limiting instruction.

The State repeats its argument that the threat was admitted as part of the res gestae, thereby making the Rule 4 weighing process and any limiting instructions unnecessary.

We agree with the State. As evidenced by the statements that defendant made immediately preceding and following the disputed language, the threats defendant made to Mrs. Flax were part and parcel of the crimes for which he was standing trial. As such, Rule 55 was inapplicable and the evidentiary admission was entirely proper.

Rule 55 states:

Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his Disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident. (Emphasis added).

The Rule prohibits the introduction of evidence of past acts of misconduct as a basis for an inference that defendant committed the acts for which he or she is then standing trial. State v. Stevens, 115 N.J. 289, 299-300 (1989). The purpose of the Rule is "'to protect defendants from the potentially great prejudice inherent in 'other like crimes' evidence, since the average jury will much more readily accept the belief that one is guilty of the crime charged where it is demonstrated that he has committed a similar crime.'" State v. Ortiz, 253 N.J. Super. 239, 242-43 (App. Div.) (quoting State v. Peltack, 172 N.J. Super. 287, 292 (App. Div.), certif. denied, 84 N.J. 474, 475 (1980)), certif. denied, N.J. (1992).

However, the Rule does not apply to uncharged acts of misconduct that are components of the crime that is the subject of the trial. "Conduct which is the subject matter of the action being tried cannot be excluded under Rule 55 because the rule is only a consideration with respect to conduct that occurred on other occasions." Vincent J. Biunno, Current N.J. Rules of Evidence, Comment 1 to Evid. R. 55, p.532.

For example, in State v. Sease, 138 N.J. Super. 80, (App. Div. 1975), the defendant was charged with participating in the armed robbery of six tavern patrons, all of whom were named in the indictment. At trial, the State introduced evidence that the defendant had also reached into the pocket of another patron at the tavern who had not been named in the indictment. Id. at 85. Defendant protested, arguing that the evidence was inadmissible as it related to misconduct for which she had not been charged. Finding that the evidence "was part of the total criminal event on the same occasion" as the crimes charged, the Appellate Division approved of its admission. Ibid.; see also State v. Sinnott, 24 N.J. 408, 413 (1957) ("defendant's declarations and acts are admissible when they are part of the res gestae "). The same reasoning applies to the threats made by Martini against Mrs. Flax.

Count four of the indictment charged defendant with kidnapping contrary to N.J.S.A. 2C:13-1a. That provision states that "[a] person is guilty of kidnapping if he unlawfully removes another from the place where he is found or if he unlawfully confines another with the purpose of holding that person for ransom or reward * * *." The State's theory of the case was that defendant had intended to ensure receipt of his ransom as well as his escape from detection through threats on the lives of both Irving Flax and his wife. The contested passage, as part of a conversation in which defendant demanded to know if the ransom had been assembled, supports that theory. Defendant's threats were made to coerce Mrs. Flax into providing the ransom without police interference.

This is not a case in which the State deliberately informed the jury of past criminal acts committed by defendant. See State v. Pennington, supra, 119 N.J. at 571. Instead, the disputed evidence relates directly to the crimes for which defendant was then standing trial and its admission serves to paint a complete picture of the relevant criminal transaction. See United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980) (holding other-acts evidence admissible if it "'furnishes part of the context of the crime'" or "is necessary to a 'full presentation' of the case * * *.").

A defendant may not break apart each component of a criminal act that itself could constitute an offense and prevent it from being admitted at trial. Defendant was not independently charged with stealing Flax's car, but to say that the State could not show that he had driven it to the Forum Diner to pick up his ransom would be ridiculous. The same is true of his threats against Mrs. Flax.

Insofar as the evidence related to the res gestae, no limiting instruction was necessary. Admission of the evidence was proper.

F. Evidence Concerning Impact of Crime on Victim's Spouse

Defendant argues that both the guilt and penalty phases of his trial were tainted by irrelevant and highly prejudicial statements concerning the impact of his crimes on Marilyn Flax. Defendant asserts that throughout the trial, the prosecutor made emotionally-charged comments regarding Mrs. Flax's reaction to the kidnapping and murder of her husband. In addition, defendant argues that during her testimony Mrs. Flax compounded the effect of prosecutor's remarks with statements focusing on her terrorization. As a result, defendant argues, jury deliberations in both phases of the trial were improperly influenced by the effect of defendant's crime on his victim's family.

In support of his argument, defendant points to several instances during the trial.

In her opening statement, the prosecutor stated:

When Marilyn Flax comes in here and tells you what happens [sic] to her, she doesn't leave this courtroom and leave the role behind because you're going to be hearing about what John Martini did to the life of Marilyn Flax and what he did to her husband, Irving Flax, on January 23rd, 1989.

Her statement continued with a description of the home life of the Flaxes:

I'm sure most of you don't even remember what most of you were doing on January 23rd, 1989. It was a Monday. For the Flax family, it started out like any other Monday except that Marilyn Flax, who is known professionally as Marilyn Winters - she runs an employment agency in Fort Lee, New Jersey - she wasn't going to work that day. She normally goes to work on a Monday but her son, Brian, was home sick from school so she stayed home with him. Her husband, Irving, a man in his fifties, was a supervisor of a factory in Secaucus. He left for work that morning and she kissed him goodbye and that was the last time she saw him alive because 10 o'clock that morning things began to change drastically in the life of Marilyn Flax * * *.

The jury was also told that it could not imagine what Mrs. Flax felt like during the kidnapping but that it would hear "her testify as to what she did, how she tried to get her thoughts together, how she wasn't even able to bring herself to the reality of this happening." The prosecutor further remarked:

While she goes to the bank and comes back from the bank, all along terrified because she doesn't know how many people are involved in this, who's watching her, where they are * * * .

You will also, and you can draw this Conclusion, see the tremendous strain [sic] this woman was able to summon up to keep him in conversation * * * .

Now, of course, she's terrified * * * .

She's terrified on the phone * * * .

The next morning she gets the phone call that she's been dreading * * * .

During her guilt-phase summation, the prosecutor referred to "the chain of events that forever changed the lives of Irving and Marilyn Flax." The prosecutor returned to that theme during her penalty-phase summation when she pointed out that a defense expert's report had not mentioned any regret defendant may have felt for "what happened to Irving Flax or what happened to his family."

During her testimony Marilyn Flax mode several references to the fear she had experienced during the kidnapping as well as defendant's threats against the lives of herself and her husband.

And he said, I'm warning you, call the cops you, [sic] better get the money, and you better try to get the money or both of you are dead.

I was terrified out of my mind. He told me he was gonna kill me if I called the police. He kept saying it over and over again to me, I was very frightened * * * .

From there I called my partner, Barbara Rose, and I told her the call that I got, that a man threatened that he had kidnaped my husband, and he was gonna kill me if I called the police and if I didn't get the money and I said I'm terrified * * * .

Over and over and over again he kept threatening my life and my husband's * * * .

I also knew that I needed to see him badly, I needed to see the man who threatened me and my husband.

Mrs. Flax also volunteered information concerning her husband's state of mind during his ordeal. During his third telephone call with Mrs. Flax, she testified, "he was screaming and crying."

Finally, when asked to identify the man she saw in the parking lot of the Forum Diner, she said, "One, two, the third man there looking at me right now was the man who killed my husband." The court sustained defense counsel's objection to that remark and gave a curative instruction.

Other than at the time of Mrs. Flax's identification of defendant, defense counsel did not object to any of the disputed testimony. He now argues, however, that Mrs. Flax's state of terror was irrelevant and that the prosecutor's remarks were an attempt to divert the jury from the material facts to the worthiness of the victim and his family. Although defendant admits that some reference to Mrs. Flax had to be made, is she was a prosecution witness who testified to incontestably relevant facts, he contends that the prosecutor's remarks took Mrs. Flax's testimony beyond the point of relevancy.

We are satisfied that the disputed statements are not impermissible victim-impact comments. Mrs. Flax was a key player in the kidnapping. Her testimony and the prosecutor's summation of that testimony reflect the fears and terrors that Mrs. Flax had continually expressed from the inception of the kidnapping. Fears she had expressed, prior to meeting the prosecutor, in her taped telephone conversation of January 23rd with Martini:

[Mrs. Flax:] Why, can I talk to him? You don't know what you put me through, today --

[Martini:] I didn't ask you that.

[Mrs. Flax:] Tony, I'm going through such hell, you don't know.

[Mrs. Flax:] Tony, you don't know what I went through. I got some of the money.

[Martini:] What?

[Mrs. Flax:] I got some of the money, Tony, but I'm going crazy. I'm so nervous. I'm sick.

[Martini:] Well, how much -- well, where's ...


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