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State v. Pennington

Decided: May 19, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK PENNINGTON, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Before Judges Michels, Skillman and Kestin.

Skillman

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1),(2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); and possession of a weapon (a handgun) for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a. The State elected to prosecute the charge of purposeful or knowing murder as a capital offense. See N.J.S.A. 2C:11-3c. A jury found defendant guilty of all charges. After a sentencing hearing, the jury also found that the aggravating capital sentencing factors clearly outweighed the mitigating and imposed the death penalty. The trial court then sentenced defendant to death in accordance with the jury's verdict. The court merged defendant's convictions for felony murder and possession of a weapon for an unlawful purpose into his conviction for capital murder.

On appeal, the Supreme Court reversed defendant's conviction for capital murder because the trial court's instructions to the jury failed to distinguish between defendant purposely or knowingly causing death, in which event the jury could impose the death penalty, and defendant purposely or knowingly causing serious bodily injury resulting in death, in which event the death penalty could not be imposed. State v. Pennington, 119 N.J. 547, 560-65, 575 A.2d 816 (1990); see State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). The Court concluded that in the absence of a jury determination as to which form of purposeful or knowing murder defendant had committed, "defendant may not be convicted of capital murder." State v. Pennington, supra, 119 N.J. at 560.

Although the Supreme Court reversed defendant's conviction for capital murder solely on the ground that the trial court's instructions failed to distinguish between capital and non-capital murder, the Court extensively reviewed "numerous instances of prosecutorial misconduct . . . to avoid problems on remand." Id. at 565; see id. at 565-84. The Court concluded that "the prosecutor, if he did not cross the line of impropriety, came perilously close to committing reversible error." Id. at 565. The Court, however, rejected all of defendant's other claims of error relating to the conduct of the trial's guilt-phase. Id. at 584-95. Accordingly, the Court reversed defendant's conviction for capital murder and remanded the matter to the Law Division.

After the remand, the State filed a motion with the Court seeking "clarification on the status of defendant's convictions for felony-murder and possession of a weapon for [an] unlawful purpose." In a letter brief submitted in support of this motion, the Attorney General stated:

As the State understands it, a reversal under State v. Gerald, supra, would not vitiate defendant's other convictions. This Court found no other basis for reversal which would warrant a retrial on the felony-murder count and [the] possession of a weapon for [an] unlawful purpose count. Therefore, defendant's felony-murder conviction and his weapon conviction still stand. These two convictions, previously vacated, should be reinstated and a sentence imposed thereunder. The remand ordered by this Court in its opinion would only relate to the purposeful or knowing murder count.

The Court denied the State's motion for clarification, "without prejudice to a further appropriate application to this Court, within 10 days of the entry of the trial court's Disposition of any application made to it in respect of the jury verdicts in this matter."

At the urging of the victim's family, which did not want to go through the ordeal of a second trial, the prosecutor determined not to retry defendant for capital murder. Consequently, the State entered into a plea bargain under which defendant agreed to plead guilty to purposeful or knowing murder in exchange for the State agreeing not to seek the death penalty but to instead recommend that defendant receive a sentence of thirty years to life imprisonment, with thirty years of parole ineligibility, to be served consecutively to a fifty year sentence, with twenty-five years of parole ineligibility, which defendant was then serving for another murder. However, when the defendant became disruptive during the court's consideration of the plea, the court granted the prosecutor's motion to withdraw the plea agreement.

The State subsequently filed a motion with the trial court to reinstate defendant's convictions for felony murder and possession of a weapon for an unlawful purpose, which had previously been merged into his conviction for capital murder. The State indicated that it would not retry defendant for purposeful or knowing murder if its motion were granted. The State acknowledged that the Supreme Court had not decided whether there were any trial errors which would require a reversal of defendant's convictions for felony murder and possession of a weapon for an unlawful purpose, and that consequently the trial court had to determine whether there was any such error before reinstating defendant's convictions.

The trial court granted the State's motion. The court agreed with the State's contention that the Supreme Court had rejected all of defendant's claims of error relating to the trial's guilt phase, except for those relating to alleged instances of prosecutorial misconduct. In concluding that the prosecutor's misconduct did not prejudice defendant in regard to his convictions for felony murder and possession of a weapon for an unlawful purpose, the court stated:

In a case such as this one, with felony murder and possession of a firearm for an unlawful purpose conceded by the defense, all of the prosecutor's energies, and consequently his alleged excesses, were ...


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