On appeal from the Superior Court, Law Division, Monmouth County.
The opinion of the court was delivered by Pollock, J., Chief Justice Wilentz and Justices O'Hern, Garibaldi and Stein join in Justice Pollock's opinion. Justice Handler filed a separate opinion Concurring. Justice Coleman did not participate.
The opinion of the court was delivered by: Pollock
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
STATE V. RIGOBERTO MEJIA a/k/a MARTIN GAMEZ (A-4-94)
Argued October 24, 1994 -- Decided July 12, 1995
POLLOCK, J., writing for the Court.
A jury convicted Rigoberto Mejia of murder, robbery, and related offenses in the death of Balbino Garcia, a co-worker. During the penalty phase, the jury unanimously found the aggravating factor of murder committed during a felony to outweigh the mitigating factors, and sentenced Mejia to death.
Mejia and Garcia were undocumented workers at the Breakers Hotel in Spring Lake. Mejia gave a statement to authorities indicating that he had entrusted Garcia with $750 for safekeeping. When Mejia learned that Garcia was planning to leave the country, Mejia confronted him with a handgun and demanded the money. Garcia denied possession of the money.
Mejia stated that he intended to use the handgun only to scare Garcia. He struck Garcia in the head with the gun when Garcia tried to disarm him. Garcia then fled, and Mejia pursued him. Garcia was shot at close range in the back and died a short time later. Mejia stated that the gun went off accidentally while he was pursuing Garcia.
The Trial court failed to instruct the jury at the guilt phase that it need not be unanimous on whether Mejia intended to kill Garcia or to cause serious bodily injury, and that if the jury was not unanimous on Mejia's intent, then Mejia would not be subject to the death penalty. This omission was critical. At the time of the offense, a defendant who intended to cause serious bodily injury, but not death, was not subject to the death penalty. The erroneous charge constitutes reversible error.
HELD : Where the evidence provides a rational basis for a jury to find that a defendant intended only to cause serious bodily injury, the jury must be given the option of convicting the defendant of murder without unanimously agreeing on whether defendant's intent was to kill. Should the jury not be unanimous on a defendant's intent, the defendant is not eligible for the death sentence. The claim of right defense is not available to a defendant charged with robbery.
1. Recent constitutional and statutory amendments provide that murderers who intend to commit serious bodily injury, like those who intend to kill, are death-eligible. At the time of Mejia's offense, however, only a defendant who intended to kill would be subject to a death sentence. State v. Gerald, 113 N.J. 40 (1988). The trial court's charge essentially required the jury to deliberate sequentially and to acquit Mejia of "intent to kill" murder before reaching the issue of "serious bodily injury" murder. The instruction was defective in several respects: it exercised a potentially coercive effect; it did not adequately inform the jury that the determination of Mejia's intent could also determine whether Mejia would live or die; and, most significantly, it did not provide the jury with the option of convicting Mejia of murder without unanimously agreeing on Mejia's intent. (pp. 6-15)
2. The Court rejects the State's argument that the error in the jury instruction as to Mejia's intent was harmless. The failure to give a Gerald charge constitutes reversible error whenever the evidence is minimally adequate to provide a rational basis for the jury to have a reasonable doubt whether a defendant intended to cause death. On the facts of the instant case, a jury reasonably could have found either that the killing was accidental, that Mejia intended to kill, or that he intended to cause serious bodily injury. (pp. 15-19)
3. Mejia was not entitled to an instruction that if the jury found he had sought to recover his money under a claim of right, it could find him not guilty of robbery. The defense of claim of right is not available to a defendant charged with robbery. The Criminal Code evinces a legislative intent to preclude recourse to such a defense for thefts accompanied by violence. This interpretation comports with public policy, which eschews self-help through violence. By contrast, a claim of right instruction should have been given in the penalty phase, since such a claim could lend weight to the "catch-all" mitigating factor and could reduce the weight placed on the aggravating factor of murder committed during a felony. (pp. 20-35).
4. The Court rejects Mejia's argument that his statement cannot be introduced as evidence because he had not knowingly and intelligently waived his Miranda rights. Although the bilingual Miranda cards used by authorities here contained some confusing language regarding Mejia's right to have a lawyer appointed to represent him, the record is devoid of any suggestion that Mejia was confused or did not fully appreciate his rights. (pp. 35-39)
5. There was no error in the trial court's failure to charge passion/provocation manslaughter, since the record does not support such a charge. In addition, the trial court did not abuse its discretion in imposing a twenty-year sentence for the robbery consecutive to Mejia's Sentence for murder. Mejia's arguments in respect of the penalty phase are rendered moot by the Court's Disposition. (pp. 39-42)
Defendant's convictions are AFFIRMED. A question exists concerning the sentence for armed robbery, and the trial court should clarify on remand the specific term and the period of parole ineligibility on the armed robbery conviction. The imposition of the death penalty is REVERSED. If the State elects to retry Mejia for capital murder, all convictions will be vacated. The matter is REMANDED for further proceedings.
JUSTICE HANDLER, Concurring in part and Dissenting in part, concurs in the majority's opinion that the death sentence should be reversed, but Dissents to cite the following additional grounds warranting reversal: the refusal of the trial court to allow particularized questioning of jurors in respect of publicity generated by a recently-concluded capital trial in Monmouth County in which the defendant had received a life sentence; and the State's use of evidence in the penalty phase to rebut Mejia's mitigation evidence that he was abused as a child because the State's evidence was not truly rebuttal and it served to undermine the jury's opportunity to properly measure Mejia's culpability for purposes of imposing the death penalty.
CHIEF JUSTICE WILENTZ and JUSTICES O'HERN, GARIBALDI and STEIN join in JUSTICE POLLOCK'S opinion. JUSTICE HANDLER filed a separate opinion Concurring in part and Dissenting in part. JUSTICE COLEMAN did not participate.
Defendant, Rigoberto Mejia, also known as Martin Gamez, and the victim, Balbino Garcia, were undocumented workers employed at the Breakers Hotel in Spring Lake. Mejia had entrusted Garcia with $750 from Mejia's earnings. When Mejia learned that Garcia was about to leave the United States, Mejia demanded the return of the money. Although Garcia had placed $1,201 in his eye-glass case, he denied possession of Mejia's money. After a dispute, Garcia fled down a basement hallway. Mejia fired a single shot, which struck Garcia in the back. A short time later, Garcia died. The State claimed the shot was purposeful; Mejia claimed it was accidental.
At trial, the critical issue was whether Mejia had intended to kill Garcia. The trial court instructed the jury that to find defendant guilty of capital murder, it must unanimously find that he had so intended. The court, however, failed to charge that to find Mejia had intended to cause only serious bodily injury resulting in death, the jury need not be unanimous. That omission was critical. At the time of the offense, a defendant who intended to cause serious bodily injury, but not death, was not subject to the death penalty. State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). On the facts, the erroneous charge constitutes reversible error.
The jury convicted Mejia of capital murder and related offenses. We affirm Mejia's conviction for murder, but reverse the imposition of the death penalty. On remand, if the State elects not to seek the death penalty, Mejia's murder conviction will stand, and the Law Division shall sentence him under N.J.S.A. 2C:11-3b. If the State elects to seek the death penalty, all convictions will be vacated and the State may re-try him for murder and all other offenses.
The record, which includes Mejia's statement to the police, reveals the following facts. Defendant did not testify at either the guilt- or penalty-phase hearings. In the summer of 1991, Mejia and Garcia were co-workers at the Breakers, sharing a room in the hotel basement until Mejia was fired. Before leaving, Mejia asked Garcia to safeguard his savings of $750 "in case of emergency so that it would he protected."
After moving to Brooklyn, Mejia called Garcia several times to recover his money. Garcia, however, did not return the money, and Mejia learned that Garcia intended to return to Mexico before Christmas. In fact, Garcia planned to return on December 8, 1991, on a 7:00 a.m. flight. Three hours before the flight, Mejia, armed with a .357 Magnum and accompanied by an accomplice armed with a knife, confronted Garcia in the hotel basement.
Garcia "spoke badly to [Mejia] and pushed his way out of the room and ran down the hall." Mejia pursued Garcia into a bedroom occupied by Garcia's brother-in-law and nephew and pointed his handgun at the three men. According to Mejia's statement, Mejia "didn't want to kill [Garcia]" and threatened Garcia with the pistol to scare him. Garcia tried to take the pistol from Mejia, who struck Garcia with the gun, fracturing Garcia's skull.
Garcia fled down the hallway with Mejia in pursuit. Mejia claims that he slipped while chasing Garcia and accidentally fired the gun. According to the State's ballistic expert, the gun was fired within one-half inch of the victim's back. As Garcia lay dying, he told his girlfriend that Mejia had shot him.
Three days later, Garcia's nephew called the police after observing Mejia walking along the boardwalk in Belmar. When the police arrested Mejia, he was carrying a .357 Magnum with five cartridges in its six-cartridge chamber. A State Police ballistics expert determined that the bullet taken from Garcia's body had been fired from Mejia's gun.
A Monmouth County Grand Jury charged Mejia with murder, in violation of N.J.S.A. 2C:11-3; felony murder, in violation of N.J.S.A. 2C:11-3a(3); armed robbery, in violation of N.J.S.A. 2C:15-1; aggravated assault, in violation of N.J.S.A. 2C:12-1b; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b. The prosecutor served a notice of aggravating factors specifying that Mejia had committed the murder during a felony, N.J.S.A. 11-3c(4)(g) ("the c(4)(g) factor").
The jury convicted Mejia on all counts. At the penalty phase, the jury found that defendant had committed the murder during a felony. Mejia relied on N.J.S.A. 2C:11-3c(5)(h), which lists as a mitigating factor "any other factor which is relevant to the defendant's character or record or to the circumstances of the offense" ("the catch-all factor"). Of the eight mitigating factors specified by Mejia, the jury unanimously found two factors because Mejia's father had physically and mentally abused him as a child. Five jurors found that Mejia had suffered emotional deprivation during his childhood. Three found a non-specific catch-all factor. The jury unanimously found that the single aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Consequently, the jury sentenced Mejia to death.
On the non-capital offenses, the court sentenced Mejia: for armed robbery, twenty years without parole eligibility to run consecutively to the death sentence; for aggravated assault, ten years with a five-year period of parole ineligibility; for possession of a weapon for an unlawful purpose, ten years with a five-year period of parole ineligibility; and for unlawful possession of a weapon, a concurrent five-year term with two and one-half years of parole ineligibility.
Defendant urges as plain error the trial court's failure to instruct the jury that it could return a non-unanimous verdict that he intended only to cause serious bodily injury. Gerald, supra, 113 N.J. at 89. We agree. We also find that the evidence provides a rational basis for a jury to find that defendant intended only to cause serious bodily injury. Accordingly, we reverse defendant's death sentence and remand for imposition of a non-capital-murder sentence. On remand, if the State should seek the death sentence, the murder conviction must be vacated and the murder count retried. See State v. Purnell, 126 N.J. 518, 543, 601 A.2d 175 (1992) (vacating capital sentence but permitting State to re-try murder count on remand); State v. Dixon, 125 N.J. 223, 229, 593 A.2d 266 (1991) (vacating death sentence and remanding for imposition of non-capital murder sentence); State v. Long, 119 N.J. 439, 504-05, 575 A.2d 435 (1990) (discussing effect of partial criminal reversal and whether reversal of capital-murder count requires reversal of any other related count).
The intent to cause serious bodily injury, like the intent to kill, can establish the requirement that a murder is "knowing" or "purposeful" under N.J.S.A. 2C:11-3a. Because of recent constitutional and statutory amendments, P.L. 1993, c. 111 (signed May 5, 1993), murderers who intend to commit serious bodily injury, like those who intend to kill, are death-eligible. At the time of defendant's offense, however, only a defendant who intended to kill would be subject to a death sentence. Gerald, supra, 113 N.J. at 89. Accordingly, the trial court should have instructed the jury to distinguish between finding that defendant intended to kill and that he intended to inflict serious bodily injury.
After defining "purposeful" and "knowing," the trial court instructed the jury:
And so your inquiry as to this form of murder will be has the State proved, beyond a reasonable doubt, that the defendant knowingly caused the death of the victim, Mr. Garcia. If you are unanimously so satisfied, then you will indicate that on the verdict sheet and return a verdict of guilty to purposely or knowingly causing the death of the victim.
If you're not satisfied, you will so indicate on the verdict sheet and return a verdict of not guilty to purposely or knowingly causing the death of the victim.
The trial court then proceeded to define "the other form of murder":
The next inquiry is with regard to the other form of murder under the statute. If you're satisfied, beyond a reasonable doubt, that the defendant either purposely or knowingly caused the death of the victim, then you don't have to answer the other question as to that second form of murder. But if your decision is that he's not guilty of purposely or knowingly causing the death of the victim, then you must consider now whether the defendant purposely or knowingly caused serious bodily injury to the victim which resulted in the death.
Essentially, the court required the jury to deliberate sequentially and to acquit defendant of "intent to kill" murder before reaching the issue of "serious bodily injury" murder. The court later emphasized:
And so you make the following determination with regard to [the murder count] of the indictment: One, how do you find the defendant on the charge that on or about December 8, 1991 he purposely or knowingly caused the death of the victim, Balbino Garcia. If your verdict is guilty to that particular question, then you don't have to consider any of the other issues that are involved in count one that are on the verdict sheet, and I'll go over that with you shortly.
But if you determine that the State has failed to prove that, beyond a reasonable doubt, and then you consider the following question: How do you find the defendant on the charge that on or about 12/8/91, he purposely or knowingly caused serious bodily injury resulting in the death of Balbino Garcia. And if your answer to that question is guilty, then you don't have to consider aggravated manslaughter or reckless manslaughter.
Reflecting the sequential charge, the verdict sheet provided in relevant part:
1. How do you find the defendant Rigoberto Mejia on the charge that on or about December 8, 1991 he did purposely or knowingly cause the death of Balbino Garcia?
If your verdict is GUILTY to the above question, you need not answer any of the following questions with regard to Count One, and you may now go on to consider Count Two.
2. How do you find the defendant Rigoberto Mejia on the charge that on or about December 8, 1991 he did purposely or knowingly cause serious bodily injury resulting in the death of Balbino Garcia?
If your verdict is GUILTY to the above question #2, you need not answer any of the following questions with regard to Count One, and you may now go on to consider Count Two.
While reading the verdict sheet, the trial court reemphasized that the jury need not consider any other possible verdicts on the murder count unless it first acquitted defendant of "intent to kill" murder.
The instructions contain several crucial defects. First, the sequential charge exercised a potentially coercive effect on the jury. Second, the charge did not adequately inform the jury that its determination of defendant's mental state could also determine whether he would live or die. Most significantly, the jury charge did not provide the jury with the option of convicting defendant of purposeful or knowing murder without unanimously agreeing on defendant's mental state.
We recently addressed the issue of sequential charges in State v. Coyle, 119 N.J. 194, 574 A.2d 951 (1990). In Coyle, the trial court instructed the jury that it could not consider the offense of passion/provocation manslaughter without first acquitting the defendant of murder. We held that the trial court's "instruction had the potential to foreclose jury consideration of whether passion/provocation should reduce an otherwise purposeful killing from murder to manslaughter." Id. at 222. We observed that "juries are consistently told not to consider the lesser-included offenses unless they first find the defendant not guilty of the greater offense." Id. at 223. Although sequential charges can provide an orderly framework for considering lesser-included offenses, such charges should not be used in cases involving passion/provocation manslaughter, which is not a lesser-included offense of knowing and purposeful murder. Ibid.
Likewise, serious-bodily-injury murder is an alternative form of homicide, not a lesser-included offense of "intent to kill" murder. See Long, supra, 119 N.J. at 450 (holding that murder statute created two forms of murder); Dixon, supra, 125 N.J. at 252 (1991) (same); John M. Cannel, New Jersey Criminal Code, Annotated, comment 13 to N.J.S.A. 2C:1-8(e) (1994) ("Though no form of murder is, technically, a lesser-included of any other, in a capital case, where there is support in the evidence for a non-capital murder conviction, the jury must be given every opportunity to convict of the charge not carrying the death penalty."). Under N.J.S.A. 2C:11-3a, murder is defined as a criminal homicide committed by an actor who knowingly or purposely intends to cause death or serious bodily injury resulting in death. Thus, one who kills with either intent is a murderer. At the time of the homicide in question, however, only an actor who killed with the intent to cause death would be subject to the death penalty.
Our assessment of the prejudicial capacity of a sequential charge is grounded in the "circumstances of the case." State v. Zola, 112 N.J. 384, 406, 548 A.2d 1022 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). One problem with a sequential charge is that it may cause a jury that believes a defendant guilty of something to convict on the first and most serious charge. See United States v. Tsanas, 572 F.2d 340, 345 (2d Cir.), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978) (stating when one element of offense is doubtful, but defendant is plainly guilty of some offense, jury likely to resolve doubts in favor of conviction). By treating serious-bodily-injury murder as a lesser-included offense, the subject charge reduced the likelihood that the jury would consider whether defendant intended to cause only serious bodily injury. Thus, by not informing the jury about the effect of its determination of defendant's mental state, the charge enhanced the likelihood that the jury would find that defendant had intended to cause death.
As we have repeatedly stated, trial courts, particularly in capital cases, must inform juries of the legal effect of their findings. See State v. Bey II, 112 N.J. 123, 164-65, 548 A.2d 887 (1988) (Bey II) (finding that failure to instruct jury about death consequences of finding one or more aggravating factors and no mitigating factors constituted reversible error); State v. Ramseur, 106 N.J. 123, 316, 524 A.2d 188 (1987) (holding that trial court must "make absolutely certain the jury is aware, not simply of the consequences of its actions, but of its total responsibility for the judgment"); cf. Roman v. Mitchell, 82 N.J. 336, 345, 413 A.2d 322 (1980) (finding that where comparative negligence is applicable, court must inform jury about the ultimate outcome of its determination of parties' percentage comparative fault); Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518, 519, 485 A.2d 338 (Law Div. 1984) (same) In the guilt phase of the present case, the court should have told the jury that its determination of defendant's mental state would predetermine whether defendant was subject to the death penalty. Specifically, the court should have instructed the jury that if it found that defendant had intended to kill the victim, he would be subject to the death penalty. Conversely, the court should have told the jury that if it found that defendant had intended to cause serious bodily injury, he would be subject to life imprisonment with thirty-years parole ineligibility. The failure to inform the jury of the difference, which could have "diluted the jury's responsibility for the imposition of the death penalty," Bey II, (supra) , 112 N.J. at 164, constitutes reversible error.
The most serious error was that the instructions foreclosed the jury from reaching a guilty verdict on the murder count without unanimously agreeing on defendant's mental state. Contrary to the State's contention, if the jury unanimously found that defendant committed homicide with the intent either to cause death or to cause serious bodily injury, but could not unanimously decide which mental state defendant possessed, this finding would result in a non-capital conviction. The finding would not, as the State asserts, result in a hung jury.
The State argues that such a result would violate the "bedrock principles of jury unanimity and proof beyond a reasonable doubt." We disagree. A jury need not agree unanimously on a defendant's mental state when a finding on one of several alternative mental states will satisfy the relevant statutory requirement.
Our Conclusion that the court should inform the jury of the option to return a non-unanimous verdict on a defendant's mental state follows our recent holding that a trial court must provide the jury with the option of returning a non-unanimous verdict when determining whether the defendant had committed murder by his or her own conduct. State v. Bobby Lee Brown, 138 N.J. 481, 514, 651 A.2d 19 (1994). In Brown, we held "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." Id. at 518.
Like the "by your own conduct" requirement, the "intent to kill" requirement "'is not an element of the offense of murder [but is] merely a triggering device for the death-penalty phase of the trial.'" Gerald, supra, 113 N.J. at 99 (quoting State v. Moore, 207 N.J. Super. 561, 576, 504 A.2d 804 (Law Div. 1985)). For this reason,
although a jury verdict that a defendant committed murder [with the intent to kill] must be unanimous, unanimity is not required to support a verdict that a defendant guilty of murder [committed the murder with the intent to cause serious bodily injury] Rather, the inability of the jury to reach a unanimous decision of the [intent to kill] 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.
[Brown, supra, 138 N.J. at 511.]
Contrary to the State's argument, the unanimity requirement redounds to the benefit of the defendant, not the State. As we explained in Bey II, (supra) , 112 N.J. at 159, "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."
Here, at the end of the charge, the trial court instructed the jury: "Now this is a criminal case, your verdict has to be unanimous. All twelve of you deliberating must agree." The court also instructed the jury that they must decide, beyond a reasonable doubt, whether defendant intended to kill or to cause serious bodily injury. Consistent with the charge, the verdict sheet does not inform the jurors that they have an option to return a non-unanimous, or reasonably-doubtful, finding on the distinction between the intent to kill and to cause serious bodily injury. The court erred by instructing the jury that to avoid sentencing defendant to death, it must unanimously find that defendant intended only serious bodily injury.
The State argues alternatively that the error was harmless. It contends that the court need not have given a Gerald charge because the evidence does not provide a rational basis for the jury to find that defendant intended only serious bodily injury. Again, we disagree.
As we have previously stressed, jury instructions are "crucial in a capital case because of the jury's responsibility to decide whether a defendant shall live or die." Id. at 162. Moreover, a "trial court commit[s] prejudicial error by instructing the jurors to engage in further deliberations in terms that strongly impel them to ...