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State v. Brown

Decided: December 21, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
BOBBY LEE BROWN, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.



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

Chief Justice Wilentz and Justices Clifford and Pollock join in this opinion. Justice Handler has filed a separate opinion Concurring in part and Dissenting in part. Justice O'Hern has filed a separate Dissenting opinion in which Justice Garibaldi joins.

Stein

The opinion of the Court was delivered by STEIN, J.

In January 1993, a Warren County jury convicted defendant, Bobby Lee Brown, of two counts of purposeful or knowing murder in the deaths of Alice Skov and her brother John Bell. It also convicted Brown on felony-murder, robbery, weapon-possession, and conspiracy charges. Because the jury found that Brown had committed the homicides "by his own conduct," N.J.S.A. 2C:11-3c, a penalty-phase hearing followed the jury's verdict in the guilt phase of the trial. At the penalty phase, the same jury unanimously found in respect of the murder of Alice Skov that the

aggravating factors outweighed the mitigating factors beyond a reasonable doubt and that defendant should be sentenced to death. Concerning the murder of John Bell, the jury could not unanimously agree on the punishment. The trial court sentenced defendant to death for the murder of Alice Skov and imposed a consecutive sentence of life imprisonment with a mandatory thirty-year term for the murder of John Bell. All other counts were merged into those murder convictions.

In July 1992, co-defendant Coleen Alexander had pled guilty to felony-murder, robbery, and conspiracy charges in return for dismissal of murder charges and for her agreement to testify for the State at defendant's trial. The court sentenced Coleen Alexander to a life term with a thirty-year parole disqualifier on those charges.

Defendant appealed his convictions and sentence. We now affirm defendant's convictions but vacate his death sentence because of errors in the trial court's instructions concerning the jury's duty to find unanimously that defendant had committed the homicides by his own conduct. Our Disposition does not affect defendant's life sentence with thirty-years parole ineligibility for the murder of John Bell. If the State elects not to seek the death sentence on remand, defendant's conviction for the murder of Alice Skov will stand undisturbed and the trial court shall impose sentence in accordance with N.J.S.A. 2C:11-3b. If the State elects again to seek the death penalty for that offense, defendant's murder conviction will be vacated and defendant will be retried on the murder charges.

I

We base our narrative of the facts primarily on the State's version as presented at the trial and reflected in the jury's guilt-phase verdict. We include references to conflicts in the testimony only to the extent that they are relevant to our resolution of the issues.

A. Events Leading Up to the Murders

Defendant, Bobby Lee Brown, met co-defendant, Coleen Alexander, at a picnic in Pennsylvania on July 4, 1990. At that time, Alexander had been married for several years and had two small children. Since September 1989, Alexander, her husband, and children had been living in an apartment in Bangor, Pennsylvania, although during their marriage Alexander and her husband lived primarily with Alexander's adoptive parents, Violet and Stephen Krouch, at the Krouch's home in Pen Argyl, Pennsylvania. Alexander and her husband had a turbulent and at times abusive relationship.

Defendant and Alexander became romantically involved. Defendant moved into Alexander's apartment on the day of the picnic and Alexander's husband moved out three days later. Neither defendant nor Alexander appeared to be employed during the first few months of their relationship. The couple experienced continuous financial problems, described by Alexander as "bounced checks all over[,] bills, [and] loan payments." As a result of their financial straits, Alexander had nine bad-check charges and a theft charge outstanding against her in Pennsylvania by the time defendant's trial commenced. The theft charge concerned $5,000 that was stolen from the house of Alexander's grandmother on September 4, 1990. The theft occurred when defendant, Alexander, and defendant's sister visited the grandmother's house. Alexander testified that she learned about the theft only when she saw defendant counting the money after the visit. At trial, defendant's sister refuted Alexander's version of the incident, testifying that only she and Alexander had gone into the grandmother's house, and that Alexander had taken the money from her grandmother's bedroom while defendant's sister unwittingly distracted Alexander's grandmother with conversation in the living room. Defendant and Alexander used $1800 of the proceeds from the theft to purchase a used red Pontiac Fiero for defendant.

On September 24, 1990, defendant and Alexander visited Alexander's great aunt, Alice Skov, at her home in Oxford Township.

Skov, eighty-two years old, had suffered a stroke in the winter of 1989, and had set up a makeshift bedroom on the first floor in the front of the house. The visit was purportedly urged by Alexander's parents because Skov had just injured herself in a fall. Also at the house was John Bell, Skov's sixty-four-year-old brother and Alexander's great uncle. Since Skov's stroke, Bell had been sleeping at Skov's house to look after her. The visit on September 24 lasted less than an hour, during which defendant and Alexander chatted with Skov and defendant played religious music on an organ in the house.

Defendant and Alexander visited the Skov residence again one day later, ostensibly to ask John Bell directions to Hackettstown, New Jersey, where defendant intended to apply for a job. However, when they arrived, Bell's pick-up truck was not in the driveway. They knocked on the door, and Alice Skov let them in and told them that Bell had gone for a haircut. Alexander explained why they had come and asked to use the bathroom. While defendant continued to speak to Skov, Alexander used the bathroom, and while returning, noticed a change purse on top of a television set. Recalling that defendant had stated that the car was low on gas, Alexander stole ten to fifteen dollars from the purse. According to a version of the visit that defendant gave to police after his arrest for murder, Alexander actually took around $350.

Alexander testified that defendant had overheard a telephone conversation between Alexander and her cousin after the second visit to the Skov home, during which Alexander had discussed a safe in Skov's house that contained a large amount of cash. Alexander further testified that she subsequently had overheard defendant having a conversation with three other friends in the kitchen of Alexander's Bangor apartment regarding "getting money in New Jersey." Alexander also related that defendant made efforts at that time to acquire a gun. Specifically, she stated that she and defendant had stopped at a gas station in East Bangor that also operated as a bar and gun shop. Once inside, defendant

began pointing out guns on display and asked Alexander to get a price on a particular model.

Two other witnesses testified regarding defendant's interest at that time in "money in New Jersey" and in obtaining a gun. One witness, Robert Lohman, whom defendant later falsely implicated in the murders, testified that he had had a conversation with defendant in the kitchen of the Bangor apartment during which defendant stated that "he needed a gun to do a job in Jersey with easy money." When Lohman replied that he was not interested, the conversation ended. Another witness, Jeffrey Lambert, testified that he had overheard defendant and Alexander talking about a safe in New Jersey, containing approximately $40,000, while Lambert, Lohman, and another man were in the process of helping defendant, Alexander, and Alexander's children move to the home of Alexander's parents, Violet and Stephen Krouch.

Defendant and Alexander moved in with the Krouches on October 4, 1990. On October 9, the day before the murders, defendant traveled to a Pontiac automobile dealership in Wind Gap, Pennsylvania. A salesperson from the dealership testified that defendant had shown interest in a new car on the lot and had taken the car for a test drive. Defendant had stated that his Pontiac Fiero was available as a trade-in. The salesperson informed defendant that the cost of the new vehicle would be approximately $17,800. Defendant and the salesperson filled out a loan application, which the salesperson then forwarded for approval. Defendant returned to the dealership with Alexander late in the afternoon and learned that the lender had rejected defendant's loan application. After discussing other loan alternatives with the salesperson, defendant stated that he either would make alternative loan arrangements or simply come back the next day and pay for the car in cash.

According to the State's evidence, defendant and Alexander returned to the Krouches' home after leaving the dealership. Violet and Stephen Krouch went to the store with Alexander's daughter, and Alexander went down to the basement to do laundry.

According to Alexander, defendant came down to the basement, pointed a "long gun" at her, and said "stick 'em up." Alexander recognized the gun as her father's rifle and told defendant to put the rifle back. The rifle was kept in the closet in Stephen and Violet Krouch's room. Stephen Krouch testified that he had told defendant about the rifle after Krouch had been informed that defendant was beating Alexander.

Later that evening, defendant and Alexander went to the neighborhood in Bangor in which they previously had lived to visit a former neighbor. Defendant encountered Jeffrey Lambert in the street and stated that he wanted to visit David Bittner, a mutual friend in the neighborhood. On reaching Bittner's apartment, defendant told Bittner that he wanted to talk to him privately, whereupon defendant and Bittner went into Bittner's bedroom. Defendant asked Bittner where defendant could get a gun because he wanted to commit a burglary "in the country" in New Jersey involving "a lot" of money. According to his testimony, Bittner told defendant that "he was crazy" and believed that he had defendant "talked out of it."

Defendant and Alexander next went to the Sportsman's bar, a pub that they frequented in Bangor. Inside, they encountered a friend of Alexander, Tina Meixsell, and her boyfriend, David Runyon. According to Runyon, defendant asked him if they could step outside and talk. Defendant then inquired whether Runyon could get defendant a gun, and said that he would be willing to pay Runyon $2,000 for it. Defendant stated that he wanted the gun that night for use the following day, and would be able to pay Runyon the following day "after he pulled off the * * * scam." When asked to describe the so-called "scam," Runyon testified that defendant had said "there was a large amount of cash in a safe that was left open" at the home of a relative of Coleen Alexander "down in New Jersey somewhere." Defendant stated that he needed the gun "for protection in case, just in case of an emergency, in case something happened." Enticed by the offer, Runyon took defendant's phone number and called defendant at

approximately 7:30 the next morning, asking if the offer was still good. Defendant told Runyon that he would call him back. Runyon asked if defendant needed a ride or other assistance, and defendant replied that he did not.

B. The Events Surrounding the Murders

The murders occurred on October 10. After getting Alexander's children up and off to school, Violet Krouch told defendant that he had a phone call. Both Krouch and Alexander testified that defendant had stated that the call was from "Dave" (presumably David Runyon), and that Dave wanted to meet defendant and Alexander for breakfast, but that defendant declined because he did not have the money. Defendant then told Alexander, who had gone back to bed, to get up and get ready. Violet Krouch testified that the couple left at 10:15 a.m., purportedly to go to Bethlehem, Pennsylvania, so that defendant could get a drug test for prospective employment at Grand Central Sanitation, a carting company.

Alexander's testimony changed three times at trial concerning when she had become aware of the criminal purpose of the trip and that defendant had taken her father's rifle. At first, she testified that she too had thought that the couple was going to Bethlehem for a drug test, and had learned of the real purpose and the rifle only after she and defendant were in defendant's car on the way to the Skov home in Oxford. However, when Alexander resumed her direct testimony the following day, she stated that she had learned that the couple was "going to Oxford for money" after defendant took the early-morning phone call from David Runyon. However, Alexander maintained that she had learned about the rifle's presence in the car only after the couple was on the way to Oxford, when she discovered it behind the driver's seat of defendant's car wrapped in a gray and black striped dress shirt that belonged to defendant. Finally, after Alexander had finished her testimony, the State recalled her to the stand because she had informed the prosecutor that she remembered additional details. She then testified that defendant

told her of the true purpose of the trip on the morning of the crime, after which he had directed her to get her father's rifle from her bedroom closet, where Alexander found it wrapped in the striped shirt. She handed defendant the rifle before they left the house.

On reaching the Skov home, the couple saw John Bell's truck in the driveway. Alexander testified that she had implored defendant to "just turn around and go home," but he had refused. They pulled in behind Bell's truck and knocked at the back door. John Bell was in the kitchen making breakfast, and told Alexander and defendant to come in. They proceeded into the day room to visit with Alice Skov. After going back to the kitchen to make instant coffee, they resumed their conversation with Skov in the day room. Approximately ten minutes later, defendant stated that he felt sick and that he needed to step outside. Alexander followed defendant out of the house through the kitchen entrance, passing John Bell who was sitting in a chair in the dining room reading a book. Once outside, the couple sat by defendant's car and smoked cigarettes. Alexander again pleaded for defendant to leave. He responded, "You ruined it for me," apparently referring to her having followed him outside. Defendant instructed Alexander to "shut up and get back in there before I leave you lay alongside the road."

The pair then went back into the house, through the kitchen and past Bell, who was still reading in the dining room. They again entered the day room and talked to Alice Skov. Alexander went into the living room, adjacent to the day room, and began playing the organ. When defendant joined her, she again asked that they leave. Defendant replied, "no," and the pair went back into the day room to talk with Skov. Again, defendant stated that he did not feel well and needed to get some air. Alexander shook her head at him, but defendant returned that gesture with "a nasty look" and proceeded outside.

According to Alexander, after ten minutes had passed, she heard a gunshot. Alice Skov stated, "oh, my goodness, Uncle

John must have killed a squirrel." Defendant then entered the day room and stated, "it's dead all right." He left the room for a few minutes and then returned, telling Alexander that she could go outside for a few minutes and smoke a cigarette while he continued to talk with Alice Skov. Apparently, that direction was intended to give Alexander an opportunity to search for cash in the Skov house, which she knew well.

Alexander testified that when she walked into the dining room, she saw John Bell lying in a pool of blood on the kitchen floor. Alexander stated that she had been scared and unsure of what to do, and had sat on the steps leading to the upstairs portion of the house for several minutes. Alexander then returned to the day room where Skov and defendant were located. Defendant left the room and Alexander sat on the floor. Skov was in her rocking chair. According to Alexander, defendant returned with the rifle, stated, "this is the gun Uncle John used to kill the squirrel," and pointed the rifle at Skov, who told him to put it down. Defendant fired a shot that grazed the top of Skov's head, causing a fracture, and then lodged in a wall behind Skov. Alexander got up to leave, but defendant came over to her and pulled her to his side with his left hand around her shoulder. Defendant then fired the rifle a second time from approximately the same position that he had fired the first shot. The second bullet entered the top rear portion of Skov's head and exited through her mouth, knocking out a tooth that landed in Skov's lap.

Alexander testified that she then broke away from defendant and went through the kitchen and out the door, with defendant instructing her to make sure that she stepped over the blood. Initially, Alexander testified that defendant had come out a few minutes later carrying the rifle wrapped in the striped shirt. However, when Alexander later returned to the witness stand, she testified that defendant had handed her the rifle as she headed out the door and that she had taken the rifle out to the car.

Alexander recalled that after defendant started the car, he said "oh, my gosh," and then explained that he had left behind the

scissors with which he had stabbed John Bell. Defendant stated that Bell had been "hard to kill[]." Alexander testified that she said to defendant, "Why?" apparently referring to the reason for the whole episode, and that defendant had replied that he had killed Alice Skov because she would have been able to identify who had killed John Bell. He then warned Alexander that if she persisted in asking questions, he would leave her "alongside of the road and go after [her] kids and [her] family."

During the ride back to Pen Argyl, Pennsylvania, defendant handed Bell's truck keys and wallet to Alexander, who threw them out the car window into a wooded area. Defendant netted approximately $300 from the crime.

C. The Aftermath of the Murders

Defendant and Alexander returned to the Krouches' home around noon. Violet Krouch informed defendant that an employee of the car dealership had called and wanted defendant to call back when he returned home. Defendant stated that he was going out to McDonald's and would stop by the dealership on his way. Violet Krouch testified that defendant had later returned with a bag of food from McDonald's and spent the afternoon installing a radio in his car. Defendant informed Krouch that he had gone to a Radio Shack in Bangor because he was having trouble with the installation.

The State produced witnesses who corroborated that account. An assistant manager from McDonald's testified that Brown, who had just started working for the restaurant, had come there that afternoon and had seemed depressed, a departure from his usually upbeat personality. He mumbled that "a family tragedy" had occurred. In addition, the State produced an employee from the Radio Shack store who testified that defendant had purchased a $170 car stereo that afternoon and had returned later because he was having difficulty with the installation. Finally, the salesperson from the car dealership testified that he had called the Krouch

residence that morning and had left a message for defendant to call back the dealership.

The following night, October 11, defendant went out with Robert Lohman and another acquaintance. According to Lohman, defendant appeared to be uneasy while the three were outdoors drinking beer, at one point peering into the surrounding woods with a flashlight. Defendant then showed Lohman a passport and asked him if he wanted to go to Canada to look for "a new atmosphere." Lohman declined the offer.

Police discovered the bodies of Alice Skov and John Bell on October 11. Their first contact with defendant, Coleen Alexander, and the Krouches occurred the following evening, on October 12, when officers from the Warren County Prosecutor's Office went to the Krouch home and informed them of the murders. The officers briefly questioned the group and were told by defendant and Alexander that they had visited the Skov home approximately two weeks before. The police asked if defendant and Alexander would submit to fingerprinting so that police could eliminate their prints if they were found at the scene. Defendant and Alexander agreed and were fingerprinted at the local police station. The police also requested that they go to the Warren County Prosecutor's Office to make statements. Defendant and Alexander asked to go in the following morning because Violet Krouch had seemed too upset to put Alexander's children to bed.

The following morning, October 13, Stephen Krouch drove his wife, defendant, Alexander, and her two children to the Warren County Prosecutor's Office. Alexander gave police a statement claiming that on October 10, the day of the murders, she and defendant had gone to Bethlehem for defendant's drug test. Alexander testified at trial that that was the alibi that defendant had instructed her to offer. Alexander also told police that she and defendant had been to the Skov house together on only one occasion. She left the Prosecutor's office at approximately 3:00 that afternoon.

In the meantime, defendant had given police a statement offering the same alibi. He subsequently agreed to take a polygraph test administered by officers from the State Police. The test involved a sequence of interviews, during which one of the detectives took copious notes. The detective testified about the contents of the interviews, although the jury was not informed that the interviews had occurred during a polygraph test. In the course of those interviews defendant revised his claim that he had been at the Skov home only once before, and admitted to a subsequent visit during which Alexander had stolen money. The detective informed defendant that he had been seen at the Skov home in the past week. He then suggested a scenario in which defendant and Alexander had gone to the house and a struggle had ensued with John Bell, perhaps even after Bell had threatened defendant with a BB gun that Bell owned. Defendant neither denied nor agreed with the detectives suggestions.

In the early evening, after the interview had been proceeding for approximately five to six hours, both detectives were out of the room discussing whether Alexander should be brought back to the office for further questioning. When one of the detectives reentered the room, defendant was crying "pretty hard." Defendant then "confessed" to the detectives that he had in fact been involved in the crime along with Robert Lohman, his acquaintance from Bangor, Pennsylvania. Defendant's general version of the crime, as told to detectives in that interview, a subsequent videotaped statement to police, and a tape-recorded conversation with the Krouches at the Prosecutor's office, was that Lohman had overheard defendant and Coleen Alexander at the Sportsman's bar discussing the money in the Skov house. Lohman allegedly approached defendant and demanded that defendant help him steal the money or Lohman would harm the Krouches, Alexander, and her children. Defendant claimed that that threat had compelled him to help Lohman. Defendant's version of the crime was that he drove Lohman to the Skov house, but that Lohman did the shooting and stealing. Although defendant's original account placed him outside the house while Lohman committed the murders

inside, defendant eventually admitted to having witnessed the shooting of John Bell. Indeed, the State used defendant's detailed description of Lohman's purported shooting of Bell as evidence that defendant was personally familiar with the circumstances of that shooting, including the manner in which Bell fell and the gunshot wound that he suffered.

Following defendant's confession, the police resumed the questioning of Coleen Alexander. Realizing that her original alibi no longer was credible, Alexander told police that she had left the house with defendant on the morning of the murder but that he had dropped her off at the home of Sheri Manger, a friend in the Bangor area. Alexander testified at trial that she had tendered that alibi because she knew from the Krouches that it was consistent with statements defendant had made concerning her whereabouts. While police were at the Krouch home, they asked whether the Krouches owned a gun. Stephen Krouch showed them the .22 caliber rifle that he kept in his bedroom closet. Officers briefly examined it and returned it to Krouch. They did, however, retain .22 caliber bullets that they found in the bedroom that Alexander and defendant shared.

Robert Lohman, the man implicated by defendant, was arrested in the early morning hours of Sunday, October 14. Police confiscated a holstered .22 caliber handgun, which defendant had described as the murder weapon. The following day, however, when officers visited defendant at the Warren County Jail to interview him further, defendant told the officers that the statement he had given was not true and that he wanted a lawyer before he would speak to them.

Apparently, defendant had decided to pursue other strategies. From defendant's arrest on October 13, defendant and Alexander were in constant communication by telephone as Alexander attempted to establish different alibis. On or about Wednesday, October 17, one week after the murders, Coleen Alexander travelled to the drug-test laboratory in Bethlehem and unsuccessfully attempted to obtain documentation stating that she and defendant

had been to the laboratory on the day of the murders. In addition, she forged a letter purporting to be from an acquaintance of David Runyon that implied that Runyon had been involved in the Skov and Bell murders; she told an acquaintance that Robert Lohman had committed the murders; and she maintained defendant's innocence in repeated conversations with his mother.

Police received the ballistics report on Robert Lohman's gun on November 1 and learned that it was not the murder weapon. They immediately went to the Krouch home and retrieved Stephen Krouch's .22 caliber rifle, as well as the T-shirt and stone-washed jeans that defendant had worn on the day of the murders. Alexander had already washed the shirt.

On November 8, members of the State Police interviewed Alexander at the Prosecutor's Office regarding her activities on the day of the murder. She "started out" with the alibi regarding the drug-test visit in Bethlehem, and then offered "numerous" alternative alibis. According to Alexander, "then after I couldn't deal with any more lies I came forth and told the truth. Bits and pieces of the truth in which I had at that time wanted them to know. * * * That [defendant] is the one who shot and killed both my aunt and uncle and stabbed my uncle." She also told the police that she had been at the scene. Following the interview, the police arrested Alexander.

After her incarceration, Alexander continued to communicate with defendant by letter through the in-house prison mail system. Because defendant and Alexander knew that such letters were read by prison officials, the pair used code words to communicate. From the witness stand, Alexander read several of the letters that defendant had written to her and explained their meaning. A main theme of the letters, besides protestations of love and devotion, was that defendant wanted Alexander to assume responsibility for the murders so that defendant could gain his release, obtain Alexander's release with bail money from loan sharks that

he knew in Trenton, and then flee with Alexander and her children.

In addition, the State introduced statements made to police by two inmates, Michael Merlo and Peter Lesando, which recounted conversations that each had had with defendant around the time of Alexander's arrest. In those conversations, defendant allegedly stated that he had shot John Bell because the situation in the house had become "agitated" when defendant learned that the safe had been plastered over. Defendant purportedly told Merlo and Lesando that he had shot Alice Skov as she sat in her rocking chair, missing with the first shot and hitting her in the head with the second. Defendant allegedly stated that Coleen Alexander had stabbed John Bell, and noted as well that she had once stabbed her husband. Defendant also explained that because he did not know the location of the bullets for Alexander's father's rifle, she had obtained them from her parent's bedroom. Merlo reported that defendant had a notebook with information written in it, but the police found no such notebook in a search of defendant's cell. At trial, both Lesando and Merlo claimed that they could not recall having made such statements or having had such conversations with defendant. Following evidentiary hearings, the trial court determined that both were feigning their lack of recall, and permitted the State to introduce the statements as substantive evidence under the hearsay exception for prior inconsistent statements.

On May 16, 1991, a Warren County grand jury returned a seventeen-count indictment charging both defendant and Coleen Alexander with murder in the deaths of John Bell and Alice Skov, alleging that both had purposely or knowingly killed Bell and Skov by their own conduct. The indictment also charged the pair with purposeful or knowing murder in the deaths of Bell and Skov, based on allegations that defendant "and/or" Alexander had purposely or knowingly killed or inflicted serious bodily injury on Bell and Skov while acting in the capacity of an accomplice or co-conspirator. Other counts charged defendant and Alexander with

felony murder, two types of first-degree armed robbery, possession of the rifle for an unlawful purpose, possession of the scissors for an unlawful purpose, third-degree unlawful possession of the rifle, fourth-degree unlawful possession of the scissors, and conspiracy to commit first-degree murder and first-degree robbery.

The Warren County Prosecutor's Office supplied defendant's attorneys with a notice of aggravating factors on June 14, 1991. The notice set forth two factors that the State intended to prove with regard to the murder charges in the indictment: (1) that the murder had been committed to escape detection for another "robbery and/or murder," N.J.S.A. 2C:11-3c(4)(f), and (2) that the murder had been committed in the course of the commission of another felony, N.J.S.A. 2C:11-3c(4)(g).

In the summer of 1992 Coleen Alexander entered into a plea agreement with the Warren County Prosecutor's Office. She agreed to plead guilty to two counts of felony murder, two counts of robbery, and one count of conspiracy to commit robbery. She also agreed to give interviews to the Prosecutor's office and to testify truthfully against defendant at trial. In return, the State agree to recommend a sentence of thirty years without parole and to dismiss the remaining charges. Alexander entered a plea in accordance with the agreement on July 2, 1992, and the court sentenced her to the recommended term on August 14, 1992.

Jury selection for defendant's trial began on November 2, 1992, and ended on November 18, encompassing nine days during that period. The nineteen- day guilt-phase trial began on December 1, 1992, and concluded on January 8, 1993, with the State presenting thirty-three witnesses and defendant presenting eight. After deliberating approximately eleven hours, the jury convicted defendant of the purposeful and knowing murders of Alice Skov and John Bell, and unanimously determined beyond a reasonable doubt that defendant had purposely and knowingly caused the deaths of Skov and Bell by his own conduct. In addition, the jury convicted defendant on the felony-murder, conspiracy, armed-robbery counts, and the weapons-possession counts concerning the

.22 caliber rifle. It acquitted defendant of the weapons-possession counts regarding the scissors.

Defendant presented three motions prior to the penalty-phase trial. First, he requested that the court set aside the jury's finding that he had committed the murders by his own conduct. The court denied the motion, determining that sufficient evidence existed to support the jury's determination that defendant had killed by his own conduct. Defendant next requested that the court empanel a new jury for the penalty phase, pursuant to N.J.S.A. 2C:11-3c(1), claiming that certain evidence presented at the guilt phase would be inadmissible and prejudicial in the penalty phase, including testimony that defendant had threatened and assaulted Alexander, photographs of the victims' bodies, testimony regarding the age and physical frailties of Skov, and testimony that defendant and Alexander had referred to themselves as "Bonnie and Clyde." The court denied defendant's motion, determining that the evidence either was admissible to prove the aggravating factors alleged or that its admission in the guilt phase did not compel the empaneling of a new penalty-phase jury. Finally, defendant made several arguments regarding the aggravating factors. Generally, those arguments were based on the failure of the notice of aggravating factors to specify the murder to which each factor applied or the underlying felony on which each factor was based. Defendant also claimed that the factors constituted improper double-counting of the evidence. The court determined that the notice was not misleading regarding the murders and underlying offenses to which the factors applied, and that basing both factors on the same events was permissible provided the jury received an appropriate instruction regarding the weighing of the evidence in accordance with State v. Bey, 112 N.J. 123, 174-77 (1988) (Bey II).

The penalty-phase proceeding spanned three days, January 12 through January 14. The State moved to admit its evidence from the guilt phase into the penalty phase and presented no new evidence. Defendant presented five witnesses and gave a brief

statement in allocution. Jury deliberations took place primarily during the entire second day of the proceeding. On the morning of January 14, the jury returned a verdict in which it unanimously found beyond a reasonable doubt that in regard to the murder of Alice Skov the State had proved the existence of both aggravating factors, that each factor outweighed the mitigating factors, and that both factors outweighed the mitigating factors. Regarding the murder of John Bell, the jury unanimously found beyond a reasonable doubt the existence of only the c(4)(g) aggravating factor, that the murder had been committed while defendant was committing another offense. The jury decided that after due deliberation it could not agree on punishment, an option offered on the verdict sheet.

In accordance with the jury's verdict, the court sentenced defendant to death for the murder of Alice Skov. After conducting a separate sentencing proceeding on April 13, 1993, concerning defendant's other convictions, the court sentenced defendant to a consecutive term of life imprisonment with a thirty-year period of parole ineligibility for the purposeful or knowing murder of John Bell. On the remaining counts, the court merged the felony-murder counts into the respective murder convictions, merged the armed-robbery counts into the felony-murder counts, and merged the weapons-possession offenses into the armed-robbery counts.

Defendant appealed his conviction and death sentence to this Court, pursuant to N.J.S.A. 2C:11-3e. Defendant advances numerous contentions on appeal, some of which relate solely to his death sentence, others of which relate to his convictions as well, and one focussing on his sentence of imprisonment. The State cross-appeals, contending that merger of certain convictions was improper. Defendant concedes the State's claim.

We affirm defendant's convictions, concluding that the alleged errors either did not constitute error or were harmless. We vacate defendant's death sentence because the trial court did not instruct the jury that it had the option of returning a non-unanimous verdict on the question whether defendant had committed

the murders by his own conduct. Although we affirm defendant's prison sentence for the murder of John Bell, we remand the matter for resentencing in view of our decision vacating the death sentence and the court's improper merger of defendant's other convictions. We note that the State may again seek the death penalty for the murder of Alice Skov by retrying defendant on that charge.

II

Defendant contends that the court's charge and verdict sheet incorrectly instructed the jury that if it convicted defendant of purposeful or knowing murder, it then had to reach a unanimous decision that defendant had committed the murders by his own conduct or a unanimous decision that defendant had committed the murders as an accomplice or co-conspirator. Defendant claims that the court should have instructed the jury instead to decide only whether it unanimously found beyond a reasonable doubt that defendant had committed the murders by his own conduct, informing the jury that a non-unanimous verdict on that issue was acceptable and would not affect the murder conviction. Defendant asserts that an affirmative determination of that question would result in a penalty-phase hearing, and a negative determination, which encompasses a non-unanimous verdict, would result in the imposition of a sentence of thirty years to life imprisonment with a mandatory thirty-year term for each murder.

A

In 1982, the Legislature enacted the New Jersey Death Penalty Act (Act), L. 1982, c. 111, and "resurrected the distinction between a principal and an accomplice" for the purpose of determining a defendant's eligibility for the death penalty. State v. Gerald, 113 N.J. 40, 93 (1988). More precisely, the Act makes death-eligible only those defendants who are convicted of purposeful or knowing murder and either "committed the homicidal

act by [their] own conduct" or procured its commission through payment. N.J.S.A. 2C:11-3c.

In Gerald, supra, we adopted the view that the "by his own conduct" (own-conduct) requirement "'is not an element of the offense of murder . . . [but] is merely a triggering device for the death penalty phase of the trial.'" 113 N.J. at 99 (quoting State v. Moore, 207 N.J. Super. 561, 576 (Law Div. 1985)). See also State v. Biegenwald, 126 N.J. 1, 18 (1991) (recognizing own-conduct as triggering device for death-eligibility rather than element of crime); accord State v. Moore, 113 N.J. 239, 300 (1988) (Moore (Marie)); State v. Koedatich, 112 N.J. 225, 338-40 (1988) (distinguishing between own-conduct finding and elements of purposeful or knowing murder in concluding that failure of jury to make own-conduct finding was harmless error), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 803 (1989). We described the requirements of the own-conduct finding as follows: "The relevant inquiry is whether or not the defendant actively and directly participated in the homicidal act, i.e., in the infliction of the injuries from which the victim died. The critical elements are that [the] defendant in fact acted, and the immediacy of his conduct to the victim's demise." Gerald, supra, 113 N.J. at 97.

In Moore (Marie), supra, we explained that "to satisfy the 'own conduct' requirement, the State had to prove beyond a reasonable doubt that defendant's conduct was the direct and immediate cause of death." 113 N.J. at 299 (emphasis added) (emphasis omitted). We perceive the requirement of proof beyond a reasonable doubt as practically, if not theoretically, synonymous with the requirement of unanimity. In the context of the State's burden to prove aggravating factors beyond a reasonable doubt, see N.J.S.A. 2C:11-3c(2)(a), we observed in Bey II, supra : "Although the Act does not expressly require the jury to be unanimous in finding the existence of an aggravating factor or factors, the lack of unanimity suggests that the factor has not been established beyond a reasonable doubt * * *." 112 N.J. at 159.

See also R. 1:8-9 ("The verdict shall be unanimous in all criminal actions * * *.") Thus, we now conclude that inherent in the requirement that the State prove the own-conduct criterion beyond a reasonable doubt is the reciprocal requirement that a jury unanimously agree that the State has met that burden.

B

Although a jury verdict that a defendant committed a murder by his own conduct must be unanimous, unanimity is not required to support a verdict that a defendant guilty of murder did not commit the murder by his own conduct. Rather, the inability of the jury to reach a unanimous decision on the own-conduct determination constitutes a final verdict that results in the imposition of a sentence of imprisonment of at least a thirty-year mandatory term, pursuant to N.J.S.A. 2C:11-3b.

In Bey II, supra, we expressed our "awareness of the qualitative difference between the death penalty and other penalties, a difference that makes it unthinkable for jurors to impose the death penalty when they harbor a 'reasonable doubt as to its justness.'" 112 N.J. at 156 (quoting State v. Biegenwald, 106 N.J. 13, 60 (1987)). See Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to Senate Bill No. 112, at 2 (May 20, 1982) (noting that "to aid a defendant facing the possibility of a death sentence" amendments to death-penalty bill increased State's burden of proof on aggravating factors to beyond reasonable doubt and lowered defendant's burden on mitigating factors to burden of production). That difference is apparent throughout death-penalty legislation and jurisprudence, and perhaps is most clearly reflected in the recognition that non-unanimous findings should be given legal effect when those findings weigh in favor of the imposition of a life sentence. "The unanimity requirement extends only to verdicts adverse to the defendant, and the Legislature may provide for the return of a verdict favorable to the defendant on less than unanimity." Bey II, supra, 112 N.J. at 159.

Indeed, in some circumstances, recognition of the principle of nonunanimity is constitutionally required. The United States Supreme Court has determined that unanimity requirements concerning findings of mitigating factors in death-penalty proceedings violate the Eighth Amendment of the United States Constitution. See McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990); Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988). Justice Blackmun, Concurring in McKoy, supra, noted that the requirement in federal cases of jury unanimity on certain preliminary factual issues supported the requirement in capital cases of jury unanimity on findings that weighed against the defendant, such as findings of aggravating factors. 494 U.S. at 449 n.5, 110 S. Ct. at 1237 n.5, 108 L. Ed. 2d at 385 n.5 (Blackmun, J., Concurring). However, as Justice Blackmun pointed out, the principle advanced in those federal cases did not apply to support a requirement of unanimity in regard to jury findings favoring a defendant:

[That] principle is a protection for the defendant * * *; its premise is that "requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant's course of action is also required." [United States v. Gipson, 553 F.2d 453, 458 (5th Cir. 1977)]. There is no analogous principle requiring that jurors voting to acquit must agree upon the basis for their reasonable doubt.

[Ibid. (second alteration in original).]

In addition to the constitutional requirement that jurors be permitted to consider mitigating factors even when those factors are not unanimously found by the jury, numerous state death-penalty statutes, including our own, require the trial court to impose a life sentence if the jury is unable to render a unanimous final verdict at the penalty phase. See, e.g., Ark. Code Ann. § 5-4-603(c) (Michie 1993); Colo. Rev. Stat. Ann. § 16-11-802(2)(d) (West Supp. 1994); Ga. Code Ann. § 17-10-31.1(c) (Michie Supp. 1994); N.H. Rev. Stat. Ann. § 630:5.IX (Supp. 1993); N.J.S.A. 2C:11-3c(3)(c); N.M. Rev. Stat. Ann. § 31-20A-3 (Michie 1994); N.C. Gen. Stat. § 15A-2000(b) (Supp. 1994); Ohio Rev. Code Ann. § 2929.03(D)(2) (Anderson 1993); Okla. Stat. tit. 21, § 701.11

(Supp. 1995); 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(v) (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co-op. Supp. 1993); Tenn. Code Ann. § 39-13-204(h) (Supp. 1994); Tex. Crim. Proc. Code Ann. art. 37.071, sec. 2(g) (West Supp. 1995); Utah Code Ann. § 76-3-207(4) (Supp. 1994); Va. Code Ann. § 19.2-264.4E (Michie 1990); Wash. Rev. Code Ann. § 10.95.080(2) (West 1990); Wyo. Stat. § 6-2-102(e) (Supp. 1994). That procedure departs from the customary practice in criminal trials that a hung jury results in a mistrial, after which the State has the option of instituting new proceedings against the defendant. See N.J.S.A. 2A:80-3; McKoy, supra, 494 U.S. at 449 n.4, 110 S. Ct. at 1237 n.4, 108 L. Ed. 2d at 385 n.4; State v. Hunt, 115 N.J. 330, 382-83) 1989).

Furthermore, in 1985 the Legislature amended the death-penalty statute to require the court in a penalty-phase proceeding expressly to inform the jury that its failure to reach a unanimous verdict will result in the imposition of a life sentence. See L. 1985, c. 178 (codified at N.J.S.A. 2C:11-3f). In State v. Ramseur, 106 N.J. 123 (1987), we discussed that statutory requirement in the context of supplemental instructions that the trial court had given to the jury after the jury had indicated it could not reach a unanimous verdict on the penalty. We concluded that the court's supplemental instructions had coerced the jury, as prohibited by our decision in State v. Czachor, 82 N.J. 392 (1980), and improperly had stressed the need to reach a unanimous verdict rather than the need to deliberate with a view toward reaching a verdict. Ramseur, supra, 106 N.J. at 306 n.74; see also Hunt, supra, 115 N.J. at 384 ("The purpose of deliberations in the penalty phase is not to reach agreement but to deliberate."). Most significantly, we determined that constitutional considerations, the mandate of N.J.S.A. 2C:11-3f, and our decision in Czachor required the court to remind jurors in supplemental instructions that they are "free to exercise[] their statutory option to return a final, non-unanimous verdict resulting in imprisonment if, after a reasonable period of deliberations, they are unable to agree." Ramseur, supra, 106 N.J. at 312.

We note that other state courts have recognized the propriety of such an instruction even in the absence of an express statutory authorization. See, e.g., Whalen v. State, 492 A.2d 552, 562 (Del. 1985) (concluding that instructions that failed clearly to inform jury of effect of non-unanimous option prejudiced defendant); State v. Loyd, 459 So. 2d 498, 502-03 (La. 1984) (holding that failure to instruct jury at its request about consequences of nonunanimity was reversible error); Commonwealth v. Baker, 511 A.2d 777, 789 n.8 (Pa. 1986) (noting potential for defense counsel to request special instruction to deadlocked jury informing them of option of non-unanimous verdict); State v. Jeffries, 717 P.2d 722, 736 (Wash.) (upholding instruction that informed jury that inability to agree on death sentence or unanimous agreement against death sentence would result in life sentence), cert. denied, 479 U.S. 922, 107 S. Ct. 328, 93 L. Ed. 2d 301 (1986).

C

Applying those principles to defendant's claim, we conclude that the court's charge to the jury on the own-conduct determination was flawed for two related reasons. First, the court failed to convey to the jury that its inability to reach a unanimous decision that defendant had committed the homicides "by his own conduct" was a permissible final verdict that would result in the imposition of at least a thirty-year mandatory prison term on each murder. Second, the court's instruction suggested to the jury that if it could not unanimously agree beyond a reasonable doubt that defendant had committed the murder by his own conduct, it instead had to find unanimously and beyond a reasonable doubt that defendant had committed the murder as an accomplice or co-conspirator.

At an early stage in the trial court's original charge on the murder counts, the court informed the jury that "the only type of murder eligible for the death penalty is purposeful or knowing murder by his own conduct as is alleged in counts one and two of the indictment." The court also informed the jury that "an

accomplice who does not take part in the infliction of fatal wounds is not subject to the death penalty." In addition, at that stage of the original instruction, the court referred to the verdict sheet and informed the jury that it would have to determine whether defendant had committed the murder by his own conduct or as an accomplice:

There will be a verdict sheet that you'll have, all of you, when you deliberate and the verdict sheet will have places for you to answer one or both of these questions.

With respect to the first question, before you may conclude that the defendant committed the murder by his own conduct, you must be convinced of this fact beyond a reasonable doubt. If you have a reasonable doubt as to whether the killing was by his own conduct but you're satisfied beyond a reasonable doubt that he was an accomplice, then you should indicate that he was an accomplice.

The trial court made no additional references to death eligibility in its original charge.

After completing its instructions on the substantive offenses, the trial court instructed the jury concerning certain general principles, including the significance of expert opinion and defendant's constitutional right to remain silent. The trial court then instructed the jury on the requirement of unanimity: "Now since this is a criminal case, your verdict must be unanimous, all 12 jurors deliberating must agree."

Immediately following that instruction, the trial court, referring to the verdict sheet, instructed the jury about the possible verdicts it could return on the murder charges:

The possible verdicts are as follows: On the charge of murder of Alice Skov, your verdict can either be not guilty or guilty. On the charge of murder of John Donald Bell, your verdict can be either not guilty of murder or guilty of murder.

Now if you find Bobby Lee Brown guilty of murder of Alice Skov you are going to have to check a box, one box, you'll have to determine whether or not he purposely or knowingly caused her death or purposely or knowingly caused serious bodily injury resulting in her death. Same thing with John Donald Bell, if you found -- if you find Mr. Brown guilty of murder of John Donald Bell, you'll have to answer the question did he purposely or knowingly cause death, or purposely or knowingly cause serious bodily injury resulting in death.

Now if you find Bobby Lee Brown guilty of murder of Alice Skov, then you'll have to make the following determination, and check one of these boxes, by his own conduct or as an accomplice or co-conspirator. If you find the defendant Bobby Lee Brown guilty of murder of John Donald Bell, you have to make the determination

as to whether or not it was by his own conduct or as an accomplice or co-conspirator. There's boxes for that.

The trial court completed its original charge without further reference to the requirement of unanimity.

The following day the jury presented a note to the trial court seeking further guidance concerning the meaning of "by his own conduct" and "as an accomplice or co-conspirator." In response the trial court instructed the jury that it had three options: to find defendant guilty "by his own conduct, or as an accomplice or co-conspirator." The court did not redefine accomplice liability and instructed the jury on the substantive crime of conspiracy but did not inform the jury that defendant could be guilty of murder as a co-conspirator. The trial court did not discuss the unanimity requirement in its supplemental instruction, nor did it inform the jury that a non-unanimous verdict concerning the own-conduct issue would be acceptable. The court repeated its prior instruction that the jury would have to determine whether defendant had "committed the murder or is guilty of the murder by his own conduct or as an accomplice or co-conspirator."

Defendant maintains that the court should have instructed the jury that its failure to reach agreement on the own-conduct determination was a permissible verdict that would result in the imposition of at least a mandatory thirty-year term for each murder. As discussed, N.J.S.A. 2C:11-3f expressly provides for such an instruction to the jury regarding the final verdict in the penalty phase. In Ramseur, supra, we determined that such an instruction was also supported by constitutional requirements, because a jury could exercise its sentencing discretion in a rational and consistent manner only if it was informed of its deliberative options and the sentencing consequences of those options. 106 N.J. at 311.

We acknowledge that the death-penalty statute does not expressly provide for a non-unanimous option in regard to the own-conduct determination, although it specifically authorizes a non-unanimous verdict with respect to the weighing of aggravating and

mitigating factors. N.J.S.A. 2C:11-3c(3)(c). Nevertheless, the considerations underlying the legislature's express recognition of non-unanimous verdicts in the penalty phase to determine whether a defendant receives a life or death sentence apply with equal force when a jury that has convicted a defendant of murder decides whether that defendant committed the murder by his own conduct. The jury's final verdict in the penalty phase results either in the imposition of a life sentence with a thirty-year minimum term or a sentence of death. Similarly, when a jury in a capital case decides whether a defendant committed the homicide "by his own conduct," its determination establishes whether that defendant will be eligible for the death penalty. Although the consequences of the own-conduct determination and the penalty-phase verdict are not identical, the analogy is compelling. In the context of determining whether a jury should be informed of its non-unanimous option, any distinction is inconsequential.

As demonstrated by this record, a capital-murder defendant may focus his or her efforts in the guilt phase on raising a reasonable doubt about issues that trigger the penalty phase, rather than vigorously contesting guilt or innocence on the murder charge. The State acknowledges that "the jury knew full well that the essential factual issue to be decided was who inflicted the fatal wounds -- defendant or Coleen." The jury also understood that when it decided that issue, it was taking a critical step toward imposition of a death sentence. We are convinced that, consistent with their statutory obligation in the penalty phase, the jurors should have been "'fully informed of the consequences of their votes and the penalties which could result in each eventuality.'" Ramseur, supra, 106 N.J. at 309 (quoting State v. Williams, 392 So. 2d 619, 634 (La. 1980)).

Furthermore, the procedural consequence of nonunanimity in the penalty phase is identical with the consequence of nonunanimity in the own-conduct determination: a verdict that defendant is guilty of murder and should be sentenced in accordance with N.J.S.A. 2C:11-3b to at least a mandatory term of thirty-years

imprisonment. Significantly, in neither instance does the inability of the jury to reach a verdict result in a hung jury and a mistrial, the jury's non-unanimous verdict in either instance resulting in a valid murder conviction.

Moreover, as we acknowledged in Ramseur, supra, in the absence of an instruction on the permissibility of a non-unanimous verdict, an erroneous belief that a failure to agree will result in a mistrial "'reasonably may [sway] a juror to join the majority, rather than [to] hold to his honest convictions, * * * to avoid forcing the parties, witnesses and court officials to undergo additional proceedings.'" 106 N.J. at 309 (quoting Williams, supra, 392 So. 2d at 635). Hence, we conclude that the proper approach is for trial courts to inform juries in capital cases of their option to return a non-unanimous verdict on whether the defendant committed the murder by his own conduct. Similar to the mandated procedure in the penalty phase of the death-penalty process, the significance of the own-conduct determination in triggering the penalty phase supports the Conclusion that jurors must be instructed on the nonunanimity option.

In addition to omitting an express instruction on the non-unanimous-verdict option, the trial court's instruction regarding the jury's options on the own-conduct determination clearly was incorrect. Because the trial court's instruction to the jury concerning the duty to return a unanimous verdict was followed almost immediately by the instruction requiring the jury to decide whether defendant had committed the murders either by his own conduct or as an accomplice or co-conspirator, the court effectively required the jury to choose between a unanimous verdict that defendant had committed the murder by his own conduct or a unanimous verdict that he had committed the murder as an accomplice or co-conspirator. However, the sole issue that the jury had to decide was whether it was unanimously convinced beyond a reasonable doubt that defendant had committed the murder by his own conduct. A negative answer to that question would have been sufficient to render defendant non-death-eligible. No alternative unanimous finding that defendant had committed the murder as an accomplice or co-conspirator was required.

D

We address the State's argument that the verdict of guilt on purposeful or knowing murder made an instruction on the non-unanimous option unnecessary. The State suggests that the non-unanimity option should not apply to the own-conduct determination, in part because to convict a defendant of murder, the jury must determine definitively whether that defendant committed the murder by his own conduct or as an accomplice. According to the State,

The jury had to decide if defendant acted as a principal by committing the acts himself which caused death or if [Alexander] committed those acts. An 'either . . . or . . ., but no surety on which theory' decision on defendant's liability for the substantive charge of purposeful or knowing murder would have resulted in a hung jury, not a non-capital murder verdict.

Accordingly, the State argues, the court's instruction and verdict sheet accurately presented to the jury the two available verdict options: unanimity on own conduct or unanimity on accomplice or co-conspirator liability. Furthermore, the State points out that jury uncertainty about which theory of liability applied was "a legal impossibility" because defendant's convictions on purposeful or knowing murder already entailed a unanimous jury decision on a particular theory of liability.

We do not accept the State's premise that to convict defendant of purposeful or knowing murder, the jury was required unanimously to agree that the State had proved a specific theory of liability beyond a reasonable doubt. In Gerald, supra, we recognized that "for purposes of determining an actor's guilt, both the [New Jersey Code of Criminal Justice] and the statutory and common law that preceded it abolished the distinction between principal and accomplice." 113 N.J. at 93. N.J.S.A. 2C:2-6 makes a defendant responsible for criminal conduct whether the defendant commits the crime by his own conduct, N.J.S.A. 2C:2-6a; aids another who commits the crime, N.J.S.A. 2C:2-6b(3), c; or conspires with another who commits the crime, N.J.S.A. 2C:2-6b(4). Those alternative theories of criminal-conduct responsibility impose the same criminal liability on a defendant

who is shown to have possessed the intent and to have acted to bring about the commission of the crime. N.J.S.A. 2C:2-6

affirms the basic principle that liability is based upon conduct, to which is added the equally important affirmation that one may be accountable for the conduct of another. When such accountability obtains, it is and should be immaterial whether the defendant's own conduct, that of another for which he is accountable, or both in combination, establish the elements of the crime charged.

[That] statement represents the legal situation in all jurisdictions and, indeed, all modern systems.

[1 American L. Inst., Model Penal Code and Commentaries § 2.06 cmt. 2 at 299 (1985).]

Although N.J.S.A. 2C:2-6 sets forth "the different modes of complicity in an offense * * * it does not * * * contemplate that such distinctions should have a procedural significance." 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:2-6, at 56 (1971) (hereinafter Final Report). Accordingly, the alternative theories of criminal-conduct responsibility do not constitute elements of a crime. See Gerald, supra, 113 N.J. at 99 (quoting Moore, supra, 207 N.J. Super. at 576). Ordinarily, indictments need not specify a theory of criminal-conduct responsibility. See State v. Schmidt, 110 N.J. 258, 263 (1988); 2 Final Report, supra, commentary to § 2C:2-6, at 56. Although murder indictments must specify whether the murder is alleged to have been committed by the defendant's own conduct, R. 3:7-3(b), the purpose of that requirement is only to indicate whether the alleged crime is one punishable by death.

Accordingly, the accepted view is that to return a criminal conviction, a jury need not be unanimous on the theory of criminal-conduct responsibility if the alternative theories apply to commission of the same criminal act and each of them supports conviction of the same offense:

In a criminal charge involving one incident and two people, the jury is regarded as being unanimous if, without specifically identifying who was the principal and who was the accomplice, they all agree that one of the two actors performed all of the elements of the offense charged as a principal and that both actors knowingly participated in the alleged criminal act.

[Probst v. State, 547 A.2d 114, 122-24 (Del. 1988) (rehearing en banc).]

See United States v. Peterson, 768 F.2d 64, 66-67 (2d Cir.) (noting that unanimity regarding defendant's role as either principal or aider and abettor is not required, but requiring unanimity on which of two acts charged in count of indictment was basis for verdict), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985); accord United States v. Horton, 921 F.2d 540, 544-46 (4th Cir. 1990), cert. denied, 501 U.S. 1234, 111 S. Ct. 2860, 115 L. Ed. 2d 1027 (1991); State v. McDonald, 872 P.2d 627, 655 (Alaska Ct. App. 1994); People v. Beardslee, 806 P.2d 1311, 1323-24 (Cal. 1991), cert. denied, U.S. , 112 S. Ct. 449, 116 L. Ed. 2d 467 (1991); State v. Smith, 563 A.2d 671, 676-78 (Conn. 1989); Bedell v. Commonwealth, 870 S.W.2d 779, 781 (Ky. 1994); Commonwealth v. Ramos, 577 N.E.2d 1012, 1014-15 (Mass. App. Ct.), review denied, 481 N.E.2d 481 (Mass. 1991); Fitzpatrick v. State, 638 P.2d 1002, 1011-12 (Mont. 1981); State v. Esker, 658 S.W.2d 49, 53-54 (Mo. Ct. App. 1983); State v. Hoffman, 804 P.2d 577, 605 (Wash. 1991); Holland v. State, 280 N.W.2d 288, 292-93 (Wis. 1979), cert. denied, 445 U.S. 931, 100 S. Ct. 1320, 63 L. Ed. 2d 764 (1980); see also Schad v. Arizona, 501 U.S. 624, 637-45, 111 S. Ct. 2491, 2500-04, 115 L. Ed. 2d 555, 569-74 (1991) (plurality) (holding that trial court's failure to require jury unanimity on whether first-degree murder conviction was based on theory of pre-meditated murder or felony-murder did not violate due-process protections).

We previously have acknowledged that view. See Bey II, supra, 113 N.J. at 99 (noting that trial court "properly concluded" that reversal on own-conduct finding was not fatal to murder conviction); see also State v. Parker, 124 N.J. 628, 633-34 (1991) (acknowledging that jury unanimity concerning theory of defendant's guilt is not required), cert. denied, U.S. , 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). We reject the contention that a jury convinced beyond a reasonable doubt that a defendant either committed a criminal act or aided another in committing the act, but that harbors a reasonable doubt

or is nonunanimous about which alternative is correct, should be precluded from returning a verdict of guilt on the criminal offense.

The jury's verdict that defendant was guilty of the purposeful and knowing murder of Alice Skov and John Bell required the jury to have determined that defendant was responsible for the murders beyond a reasonable doubt, either by his own conduct, as an accomplice, or as a co-conspirator, but did not require unanimity on the specific theory of liability. Thus, the possibility of a nonunanimous verdict on the own-conduct requirement remained a possibility after the jury decided defendant's guilt on the murder charges. We next consider whether that possibility was sufficiently great to warrant a Conclusion that the court's failure properly to charge the jury on the option of a nonunanimous verdict prejudiced defendant.

E

Our decisions have consistently emphasized that clear and correct jury instructions are essential for a fair trial. See, e.g., State v. Martini, 131 N.J. 176, 271 (1993) (citing State v. Collier, 90 N.J. 117, 122 (1982)); State v. Martin, 119 N.J. 2, 15 (1990) (citing Collier, supra, and State v. Green, 86 N.J. 281, 288 (1981)). As we stated in Martin, "A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." 119 N.J. at 15. Furthermore, "so critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error," ibid., and "are ordinarily considered 'poor candidates for rehabilitation under the harmless error philosophy.'" State v. Harmon, 104 N.J. 189, 213 (1986) (quoting State v. Simon, 79 N.J. 191, 206 (1979)).

In prior cases, we have dismissed as harmless error the failure of the court to give proper instructions on the own-conduct determination because the evidence presented at trial and the theory proposed by the defense simply did not support a Conclusion

that the jury might have harbored a doubt about whether defendant had committed the murder by his own conduct. In State v. McDougald, 120 N.J. 523 (1990), the defendant alleged error in the court's instructions on the distinction between own-conduct and accomplice liability, id. at 560-61. Additionally, the verdict sheet gave the jury a choice between own-conduct and accomplice liability after it had determined the defendant's guilt for murder. Id. at 561-62. The defendant's challenge concerned whether his actions or the actions of his accomplice had caused the victims' death. Id. at 561. We concluded in McDougald that because the defendant had "stabbed, cut and struck the victims until they died," the instruction on own-conduct and accomplice liability had been adequate. Id. at 562.

In Biegenwald, supra, 126 N.J. 1, the defendant alleged that he had not been convicted of "capital murder" because the court had failed to obtain a special finding regarding own-conduct. The State's case was that the defendant had fired four shots into the victim's head, and the defense theory was that another person who had originally been charged with the defendant for the murder had committed the murders himself. Id. at 18-19. The defendant argued on appeal that the jury could have found that he had aided the other person, thus raising an own-conduct issue. However, because "neither that theory nor the facts or arguments that might have supported it were ever put before the jury," we concluded that the verdict of guilt "unmistakably" indicated that defendant had committed the murder by his own conduct. Id. at 19. We note that in both McDougald and Biegenwald we vacated the defendant's death sentence on other grounds.

In examining the probable effect of the trial court's failure to instruct the jury that a non-unanimous verdict on the own-conduct determination was permissible and would not affect defendant's murder conviction, we focus on whether the testimony and arguments could have generated a reasonable doubt about whether

defendant or Coleen Alexander had shot John Bell and Alice Skov. We conclude that the evidence could have left the jury with a reasonable doubt on that question.

Defense counsel's summation emphasized that very issue. Among the points that defense counsel underscored were the following: Coleen Alexander's demonstrated need for money had impelled Alexander and defendant to engage in criminal conduct; inconsistencies existed in the accounts of defendant's alleged inquiries about obtaining a gun; a witness had seen defendant outside of the house standing alone by the passenger side of the car; Alexander's height more accurately fit the trajectory of the first shot at Alice Skov, and her account of the shooting was inconsistent with the trajectory of the second, fatal shot to Alice Skov; Alexander had changed her clothes immediately after returning home from the murders; no blood had been found on defendant's clothes, and Alexander's clothes had never been checked; the State's indictment, of which the jury received a copy, charged defendant and Alexander with murder by their own conduct; Alexander had pled guilty to avoid the death penalty, but was exposed to the death penalty only if she committed either murder by her own conduct. In addition, defense counsel pointed out that the only accounts of the shooting had been from uniquely untrustworthy sources -- Alexander and the two "jailhouse snitches," Lesando and Merlo. In the past, we have accorded due weight to the arguments advanced by defense counsel in assessing whether the evidence at trial could have supported a given result. See State v. Johnson, 120 N.J. 263, 300-01 (1990) (noting that defense counsel's argument during summation that defendant had not killed by his own conduct demonstrated need for appropriate own-conduct instruction on retrial).

In addition, we note the trial court's view that the record contained sufficient evidence on which the jury could have inferred that Alexander had killed the victims. Following closing arguments and prior to charging the jury, the court explained that it had included separate instructions on slayer and nonslayer-participant

liability in the felony-murder charge. In that context the court observed, "There's some testimony in the case from which the jury can infer that he wasn't the slayer, that he was there. There's testimony that he was the slayer. You have to give them both." When the court gave the felony-murder charge to the jury, it stated, "Now as I recall the evidence, there's some evidence pointing to the fact that Bobby Lee Brown committed the killing during the course of a robbery and there's some ...


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