On appeal from the Superior Court, Law Division, Atlantic County.
Before Judges Pressler, Dreier and Kleiner.
KLEINER, J.S.C. (temporarily assigned).
The body of Jessie Rice, age seventeen, was discovered in Cardiff on December 22, 1988. Rice had been shot seven times in the head. The ensuing homicide investigation led to the arrest and indictment of defendant, Shawn Jackson, for eleven criminal acts.*fn1 Thereafter, a one-count superseding indictment replaced the eleventh count of the original indictment. The superseding indictment charged defendant with purposely or knowingly causing death by his own conduct contrary to N.J.S.A. 2C:11-3a(1) or (2), commonly known as capital murder.
Defendant, represented by counsel, waived his right to a jury trial. After an Evid. R. 8 (now N.J.R.E. 104) hearing at which defendant's pretrial statement was deemed admissible, defendant proceeded to trial and was convicted by the trial Judge on all counts.
At the ensuing penalty phase proceedings, the court determined there was insufficient evidence to support the two aggravating factors specifically alleged by the State, and that even if those two aggravating factors were supportable, those factors did not outweigh the mitigating factors beyond a reasonable doubt. The death sentence was rejected. Defendant was sentenced on the count of knowing or purposeful murder to life imprisonment with a thirty year period of parole ineligibility. On count six of the indictment, charging kidnapping, in violation of N.J.S.A. 2C:13-1b(1) and (2), defendant was sentenced to a custodial term of fifteen years, with a five year period of parole ineligibility, to be served consecutively to the sentence imposed for murder. All other counts of the indictment either merged or resulted in concurrent sentences. Defendant's aggregate sentence was life plus fifteen years, with a thirty-five year parole disqualification.
On appeal, defendant raises three points of error:
DEFENDANT DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO A JURY TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 9. (Not Raised Below).
SHAWN JACKSON'S CONFESSION WAS NOT VOLUNTARILY MADE AND ITS ADMISSION INTO EVIDENCE VIOLATED DUE PROCESS.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant also filed an additional brief, pro se, and raises two points of error:
DEFENDANT'S STATEMENT TAKEN IN VIOLATION OF DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION AND FUNDAMENTAL FAIRNESS DOCTRINE AND FAILURE TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT ONCE INVOKED AND VIOLATION OF FOURTH AMENDMENT MANDATE REVERSAL OF CONVICTION. (Not raised below).
TRIAL COURT'S CONSIDERATION OF TESTIMONY OF HEARSAY STATEMENTS OF NON-TESTIFYING CO-DEFENDANT WAS AN ABUSE OF DISCRETION AND A VIOLATION OF SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES. (Partially raised).
On December 21, 1988, defendant, Darryl Welsh and Terry Bailey, agreed to rob the victim, Jessie Rice, to obtain money for the Christmas season. On December 22, 1988, defendant was armed with a nine millimeter handgun and gave Bailey a .22 caliber weapon. Welsh was armed with a .357 magnum. They waited for Rice to arrive at the home of his girlfriend on Illinois Avenue in Atlantic City. After Rice arrived, he began to walk towards his girlfriend's home. Defendant and his accomplices approached Rice from the rear. After forcing Rice to walk around the block, the group returned to Rice's automobile and Welsh ripped a gold chain from Rice's neck and removed $50 from his person. Rice was forced to enter the front passenger seat of his vehicle. Defendant and Welsh sat in the rear seats, and Bailey drove. The group attempted to force Rice to reveal the specific location of his residence in Pleasantville but Rice refused to respond. Bailey drove to a wooded area near Pleasantville where defendant forced Rice to exit the vehicle and to lie on the ground. Defendant switched weapons with Bailey and, using the .22 caliber pistol, defendant shot Rice seven times in the head. The trio then Proceeded in Rice's automobile to a convenience store, purchased gasoline in a container, and proceeded to another secluded area where, after vandalizing the vehicle, they set the vehicle on fire and left the area. During the guilt phase of the proceedings, Welsh and Bailey, who testified for the State, indicated they urged defendant not to shoot Rice. However, he ignored these pleas.
On July 11, 1989, at 6:30 a.m., the trio was brought to police headquarters for questioning. Each man denied any involvement in the homicide and sometime after 1:00 p.m. they were separately released. That afternoon, Bailey gave incriminating information to the police which was then confirmed by Welsh. At approximately 6:00 p.m., Jackson was brought back to police headquarters and during the ensuing interview, taped statements of Bailey and Welsh were played for defendant. Bailey and Welsh were also brought into the interview area. They talked and argued with defendant. Ultimately, defendant admitted he shot Rice. He then proceeded to provide a detailed confession.
On March 22, 1991, defendant, accompanied by two attorneys, Kevin Lewis and Charles Jurman, appeared in court in the presence of Assistant Prosecutor Rosenfeld. The following colloquy occurred:
THE COURT: Shawn Jackson. All right, Mr. Lewis.
MR. LEWIS: Thank you, Your Honor. This is Shawn Jackson, Your Honor, who is on your list for trial now scheduled for May 14th of 1991. I have discussed with Mr. Jackson his options with regard to trial, whether it be by jury or by a bench trial before the Judge alone. After having gone over this matter with Mr. Jackson, we have executed a request to be tried by the Judge and hereby waive the jury application.
THE COURT: Mr. Rosenfeld.
MR. ROSENFELD: Yes, as Your Honor knows, we do consent to this waiver.
THE COURT: You concur in the waiver of jury trial?
MR. ROSENFELD: I do, sir.
Q. How old are you, Mr. Jackson?
Q. Your lawyer has told me that you want to waive a trial by jury in the murder charges which is a capital case, as you know, and that you want to be tried by the Court without a jury both as to the guilt phase and the penalty phase if you're found guilty. Is it true that you want to waive a jury trial?
Q. And have you signed this form here? Is this your signature?
Q. You signed this in court today?
THE COURT: The Court is satisfied that Mr. Jackson represented by competent counsel in the person of Kevin Lewis and Charles Jurman. He understands his rights. He understands his rights to be tried by a jury. He waives that right, has executed a waiver in writing.
Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and his opportunity to be heard, waives a jury trial. In sentencing proceedings conducted pursuant to N.J.S.A. 2C:11-3(c)(1), the consent of prosecutor shall be required for such waiver.
It is clear from the colloquy between the court and counsel that defendant's waiver of a jury trial was in writing and was consented to by the State as is required by N.J.S.A. 2C:11-3c(1). The transcript is devoid of any Discussion between the court and defendant other than the court's inquiry as to the execution of the waiver form and the court's final inquiry as to whether defendant had any questions which he desired to direct to the court.
In State v. Wyman, 232 N.J. Super. 565, 557 A.2d 1043 (App. Div. 1989), we reversed a judgment of conviction under similar circumstances, although in Wyman the waiver was oral and not written as in the case sub judice. In Wyman, as here, there was no express and understanding waiver by defendant of his right to trial by jury in open court. It was our clear determination that a "defendant's mere acquiescence in proceeding without a jury" is not sufficient to constitute a waiver of the constitutional right to a jury trial. Id. at 568. We specifically provided:
We deem it important to emphasize that trial courts and prosecutors should make certain that a waiver of a jury trial be in writing and signed by the defendant as required by R. 1:8-1(a), or that defendant personally place on the record in open court an express and understanding waiver of his or her right to such a trial.
[Ibid. (emphasis added).]
Clearly our statement in Wyman implies that in requiring verbalization by a defendant, an "express and understanding waiver" is required where the waiver is not in writing. Confirmatory verbalization of a defendant's written waiver is not specifically mandated by R. 1:8-1(a).
It is well-settled that to be constitutionally valid a defendant's waiver of a jury trial must be knowing and intelligent. Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S. Ct. 2041, 2053, 36 L. Ed. 2d 854, 868-69 (1973) (citing Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268 (1942)) (defendant's waiver of jury trial must be express, intelligent and competent); Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 263, 74 L. Ed. 854, 870 (1930) (defendant's consent to waiver of jury trial must be "express and intelligent"). Whether a waiver is given knowingly "depends upon whether the totality of the circumstances supports that Conclusion." State v. Koedatich, 112 N.J. 225, 328, 548 A.2d 939 (1988) (citations omitted), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); see also Adams, supra, 317 U.S. at 278, 63 S. Ct. at 241, 87 L. Ed. at 274. That a defendant was represented by counsel is relevant in determining whether his waiver of a jury trial was knowing. United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1182 (7th Cir. 1983), cert. denied, 464 U.S. 1072, 104 S. Ct. 982, 79 L. Ed. 2d 219 (1984).
Under Federal Rule of Criminal Procedure 23(a), a defendant may "waive a jury trial in writing with the approval of the court and the consent of the government." Compliance with this rule's writing requirement "'creates a presumption that the waiver is a voluntary, knowing and intelligent one.'" United States v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990) (quoting United States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985)). Additionally, under federal authority, defendant who has waived his right to a jury trial bears the burden of "plainly showing that such waiver was not freely and intelligently made." Adams, supra, 317 U.S. at 281, 63 S. Ct. at 242, 87 L. Ed. at 275-76.
Defendant has failed to present any evidence to support his argument that his jury trial waiver was other than a knowing and intelligent decision made by him with advice of counsel. Defendant has also not buttressed his argument with an affidavit or certification alleging facts to support his contention.
As noted, defendant's written waiver was executed and presented to the court on March 22, 1991. Defendant's next court appearance was on May 14, 1991 on the day scheduled for trial. The following colloquy occurred:
THE COURT: Good morning, ladies and gentlemen.
Ladies and gentlemen, today is the scheduled date for the trial, non jury, of the matter of State versus Shawn Jackson. This is a capital murder case, and the defendant previously waived a jury in writing and ...