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State v. Harris

July 12, 1995

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH HARRIS, DEFENDANT-APPELLANT.



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

Chief Justice Wilentz and Justices Pollock, Garibaldi, and Stein join in Justice O'Hern's opinion. Justice Handler filed a separate opinion Concurring in part and Dissenting in part. Justce Coleman did not participate. The opinion of the Court was delivered by O'hern, J.

The opinion of the court was delivered by: O'hern

(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. JOSEPH HARRIS (A-3-94)

Argued October 25, 1994 - Decided July 12, 1995

O"HERN, J., writing for the Court.

A jury convicted Joseph Harris of murdering Ron Ellison and of committing other offenses against Ellison, his wife Irene Ellison, and their two minor daughters. (Because the case involves the sexual assault of juveniles, fictional names are used to identify the victims.) During the penalty phase, the jury determined that Harris should be sentenced to death.

In 1984, Harris invested $10,000 with Ellison's firm, an investment company specializing in precious metals and coins. Harris was paid dividends for a short period. The payments eventually stopped, and the company went out of business in 1985. Harris wanted his $10,000 back. Harris unsuccessfully sought to talk to Ellison on several occasions.

Harris wrought his frightful revenge on November 15, 1988. He went to the Ellison residence dressed in black and with his face covered by a mask. He handcuffed and blindfolded Ellison and his family in the master bedroom. He repeatedly asked for money, and was given $700 from Mrs. Ellison's purse. Harris was not appeased. He raped Mrs. Ellison and her two children.

Mrs. Ellison heard what sounded like a gun being loaded. Harris took Ellison from the room. Mrs. Ellison then heard her husband outside screaming "He's going to kill me." Mrs. Ellison managed to break a window and scream to a neighbor who was walking a dog. The neighbor called police.

Police found Ellison's body in the backyard, lying face down on his stomach. He had died from a bullet that entered the back of his neck on the left side and which cut his spinal cord. The State's pathologist testified that Ellison probably was shot while he was on the ground. A black hood with openings for the eyes was found on the floor of the den. Also found were a pistol (not the murder weapon), ammunition, a flashlight, and syringe.

In October 1991, Harris was arrested in connection with the unrelated killings of four postal workers in Bergen County. His home was searched. The search disclosed handcuffs, a flashlight, and syringes like those found in Ellison's home. Also found were newspaper articles on the Ellison homicide and a letter from Harris to Ellison, which concludes with a postscript warning that if Harris died "in combat," he might return as a "ghost."

In the face of this evidence, Harris could not realistically deny that he had killed Ellison. His principal defenses were insanity and diminished capacity.

HELD: None of the errors claimed by defendant constitute reversible error, and the cumulative effect of the claimed errors did not deny defendant a fair trial. Defendant's convictions and death sentence are affirmed.

1. Harris argues that the State's offer of a plea to a life sentence demonstrated that the death penalty was inappropriate and excessive in this case, and the State's determination to seek the death penalty after he rejected the plea was arbitrary and unconstitutional. The State's original decision to proceed with the matter as a capital case continued to be appropriate when defendant chose not to plead guilty. (pp. 7-10)

2. The trial court did not err in refusing to dismiss certain jurors for cause. One juror's expression of skepticism about psychiatric evidence and another's statement regarding convicted murderers "rotting" in jail were troublesome. Nonetheless, on the whole, defendant had a fair opportunity to select jurors. (pp. 10-15)

3. It was not reversible error for the trial court to fail to instruct the jury on the difference between intent-to-kill murder and serious-bodily-injury murder, and that the jury could return a non-unanimous verdict in respect of defendant's intent which would result in a life sentence. The jury returned a separate verdict sheet that found defendant guilty of knowingly and intentionally causing death, and no rational jury could have found that one who shoots a handcuffed victim in the back of the neck would not have been practically certain that death would result. Any error in respect of the jury charge on this issue was therefore harmless. (pp. 15-24)

4. The trial court's instruction that the jury not consider the evidence of mental disease or defect until after it had rejected the insanity defense did not create a risk that the jury would not consider whether defendant's mental condition prevented him from forming the requisite mental state. The trial court went to great lengths to fashion a fair and correct charge in the face of the difficult task of assuring that the jury not be confused by the constitutionally-driven burden shifting between insanity (the defendant bears the burden) and diminished capacity (the State bears the burden). When considered as a whole, especially in light of the correct written instructions provided to the jury, the charge correctly stated the law. (pp. 25-33)

5. There was no need for an instruction that the jury must be unanimous on the felony underlying the aggravating factor of murder committed during a felony where defendant was convicted of every felony for which he was charged. (pp. 40-44)

Defendant's convictions and death sentence are AFFIRMED.

JUSTICE HANDLER, Dissenting in part and Concurring In part, is of the view that defendant's convictions should stand but that his death sentence should be reversed. He considers the instructions of the trial court in the penalty phase to be fatally deficient in two areas: the failure to expressly require that the jury agree unanimously on the felonies that served as the basis for the aggravating factor of murder committed during a felony; and the failure to advise that the jury could consider evidence of defendant's mental impairment under the catch-all mitigating factor even if the jury found such evidence insufficient to establish the statutory mitigating factors that expressly implicate such evidence.

CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, GARIBALDI, and STEIN join in JUSTICE O'HERN'S opinion. JUSTICE HANDLER filed a separate opinion Concurring in part and Dissenting in part. JUSTICE COLEMAN did not participate.

O'HERN, J.

A Morris County jury convicted defendant, Joseph Harris, of the murder of R.E., and of other offenses against R.E., his wife, I.E., and their two daughters. (Because this case involves sexual assault of juveniles, we do not use actual names. N.J.S.A. 2A:82-46a. To avoid dehumanizing the issues, we will use the assumed names of Ron and Ilene Ellison for the adult victims.) In a sentencing proceeding, the jury also found the presence of statutory aggravating factors that established death-eligibility. After considering the statutory aggravating and mitigating factors, the jury determined that defendant should be sentenced to death. For the non-capital convictions, the court imposed two consecutive life sentences and eighty years of consecutive sentences with a ninety-year period of parole ineligibility.

The principal claims raised in defendant's appeal are: (1) a selective capital prosecution of this case occurred after defendant rejected a plea offer with a non-capital sentence; (2) the trial Judge incorrectly charged the jury on the form of murder that is death-eligible under the principles of State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988); (3) the trial Judge failed to inform the jury that it could unanimously find defendant guilty of murder even if it did not agree on the form of murder (intentional or serious-bodily-injury (551) murder); (4) the trial Judge incorrectly charged the jury that it should not consider the diminished-capacity defense based on mental disease or defect until after it had rejected defendant's evidence of insanity; and (5) the trial Judge improperly denied an affirmative defense to robbery based on a claim of right to funds in the possession of the murder victim. We find that those and other claimed errors did not taint the trial. The convictions are affirmed.

I.

For purposes of this appeal we draw generally upon defendant's statement of facts. In 1984, defendant invested $10,000 with Ron Ellison's firm, an investment company specializing in precious metals and coins. Defendant received dividend checks for the first few months thereafter. Eventually, however, the monthly checks became smaller and payments finally stopped. The company went out of business in 1985. Defendant wanted his $10,000 investment back. He visited the company offices and telephoned several times, attempting to talk to Ellison about the return of his money. Defendant thought that Ellison was avoiding his obligations to him.

Ellison and his wife lived with their two daughters, ages seven and nine. On November 15, 1988, Harris wrought his frightful revenge. On that date, it was after 8:00 p.m. when Ilene Ellison returned home from work to a night of horror. The front door was locked but it was opened by a man dressed in black, his face covered by a mask. He struck her and told her, that her family was upstairs and that if she did what he told her to do nobody would get hurt.

Upstairs she found her husband and her two daughters handcuffed, blindfolded, and seated on the bed. He handcuffed and blindfolded Mrs. Ellison. Defendant repeatedly asked for money. Mrs. Ellison gave him $700 from her purse. He was not appeased. Defendant raped Mrs. Ellison and her two children.

Mrs. Ellison managed to loosen her blindfold and could see defendant walking around. She observed that he wore a mask and surgical gloves. After continuous demands for more money, he raped Mrs. Ellison again and warned her and the children that if he saw anything in the newspapers about what occurred he would come back to get them.

After defendant left the room, Mrs. Ellison heard a sound like a gun being loaded. She heard her husband say to defendant, "I'll take you downstairs. * * * I have coins downstairs." Mrs. Ellison saw a gun in the master bedroom on the floor, which she kicked under the bed. She then heard her husband outside screaming, "he's going to kill me." Unable to open the window because of her handcuffs, Mrs. Ellison broke a window with the back of her hand. She screamed to a neighbor walking his dog outside. The neighbor called the police. Defendant returned upstairs and tried to force his way back into the bedroom. Because Mrs. Ellison had barricaded the door with a dresser, he was unsuccessful.

Upon arrival, the police found Ellison's body in the backyard. He was lying face down on his stomach. He had blood on his neck and shoulders. A bullet fell from the wound when the medical examiner moved the body. An autopsy report showed that Ellison had died from a bullet that entered the back of his neck on the left side, cutting the spinal cord and disconnecting the brain from the rest of his body. The State's pathologist testified that the victim probably was shot while he was on the ground.

A black hood with an opening for the eyes was found on the floor of the den. In addition, the pistol that Mrs. Ellison had kicked under the bed in the master bedroom, two pistol magazines, a box of ammunition, a flashlight, and a syringe and its plastic wrapper were also found. Two days later, a .22-caliber bullet shell was found in the yard adjacent to the Ellisons' backyard.

In October 1991, almost three years later, defendant was arrested in connection with unrelated killings of four postal workers in Bergen County. His home was searched. That search disclosed handcuffs and a flashlight like the one found in the Ellisons' home. Syringes found in the search had markings similar to the one found at the Ellison house. Two newspaper articles on the Ellison homicide and two snapshots of defendant in Ninja attire, armed with a martial-arts throwing star and a Ninja sword were discovered. The search produced two undated letters written by defendant. In both letters defendant calls himself a "warrior" likely to die "in combat" and "with great honor." One note, which is fairly brief and concerns Ron Ellison, has a postscript warning that after defendant died in combat he "might return as a ghost." In the face of that evidence defendant could not realistically deny that he killed Ron Ellison. His principal defenses were insanity and diminished capacity.

Defendant's life was troubled. He was born in 1956 to an inmate of the State Women's Prison in Clinton, New Jersey. He was taken from his mother at the age of two months and given to his aunt and uncle. Defendant had hardly any contact with his mother and did not meet his father until he was eleven years old. He began to believe that he was cursed because he was born in prison and rejected by his parents. He did graduate from high school and served in the United States Navy. He attended classes for one semester at a local community college.

During his childhood, defendant began to fantasize. He had an imaginary friend and drew guillotines, swords, and guns. At the age of nine or ten he began to hear the voice of an Indian Chief. Eventually, however, the dominant voice defendant began to hear was that of a Ninja spirit, a fierce warrior whom defendant believed had been with him throughout his life. "Ninja" describes a member of a class of feudal Japanese warriors who were highly trained in the art of stealth. Commonwealth v. Hudgens, 400 Pa. Super. 79, 582 A.2d 1352, 1355 n.9 (Pa. Super. Ct. 1990). Daimyos, the Japanese feudal lords, frequently employed Ninjas as spies and assassins because of their specialized training. Ibid. The Ninja costume is black and similar in style to a karate outfit, but it includes a black hood. Id. at 1355 n.7. Defendant claimed that this Ninja spirit directed him to go to Asia to fulfill his prophecy. He enlisted in the Navy with the understanding that he would be stationed in Asia. After serving two years on an aircraft carrier in the Navy, he received a general discharge for failure to attend to his duties.

In November 1981, he began to work at the post office in Ridgewood, New Jersey, and remained there until May 1990. At this job he claimed to experience discrimination as an African-American. Believing that he needed to be able to defend himself, he took up karate. Defendant occasionally arrived at work dressed in black, an imitation of Ninja garb, or in a military camouflage outfit, and performed martial-arts maneuvers before fellow employees. His co-workers described his behavior as "irrational," "odd," and "weird."

II

1. Was the prosecutor's decision to seek the death penalty after offering a plea to a life sentence an abuse of discretion, resulting in the wanton and cruel imposition of the death penalty in violation of defendant's constitutional rights?

In April 1993, during jury selection, the prosecutor offered a plea agreement to defendant pursuant to which the prosecutor would seek only a life sentence. Defendant claims that the prosecutor thereby announced his view that the death penalty was inappropriate and excessive in his case. When defendant tore up the executed plea in an emotional outburst moments before he was scheduled to enter the plea, the State continued to trial with a capital case. Defendant contends that he was subjected to a sentence of death rather than life imprisonment because he is mentally ill. Defense counsel does not claim that the State's initial decision to make this a capital prosecution was based on unsupported aggravating factors. Instead, they claim that an error lies in the State's reversal of its decision to prosecute his case as a non-capital case solely because the mentally ill defendant did not enter the plea as negotiated.

We have recognized the potential for arbitrariness in prosecutorial decision-making with respect to capital cases. In State v. McCrary, 97 N.J. 132, 141, 478 A.2d 339 (1984), we acknowledged the significant consequences that flow from a decision to seek a death sentence and found ourselves persuaded "that some judicial scrutiny of prosecutorial charging [was] necessary." Our stated goal was "to effect only a minimal intrusion into this area of prosecutorial discretion" in light of the "broad discretionary powers" historically exercised by prosecutors in determining charges. Id. at 142. In State v. Koedatich, 112 N.J. 225, 252, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989), we noted that Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), holds that "the federal Constitution does not require limits on prosecutorial discretion beyond the aggravating factors outlined in the statute." We looked beyond that requirement, however, and found that "the New Jersey Constitution * * * mandates consistency and reliability in the administration of capital punishment." Id. at 251 (citing State v. Ramseur, 106 N.J. 123, 190, 524 A.2d 188 (1987)).

As we have stated:

The critical question in assessing prosecutorial discretion is what standards are applied to move a case from death possible to death-eligible status. * * *

[Id. at 256 (emphasis added).]

In applying those principles, we do not find that this prosecution evokes the type of cruel and unusual punishment or arbitrary misuse of prosecutorial power that concerns us. Defendant's mental impairments did not serve as the basis for his exposure to the death penalty. Rather, the prosecutor's original decision, to proceed with the trial of the matter as a capital case, continued to be appropriate when defendant chose not to plead. Obviously, defendant's mental capacity was to be a contested issue in the trial. Only a guilty plea could avert revisiting the catalog of horrors suffered by this family. (Ultimately, the two minor children were not forced to testify at the trial because defendant stipulated that they would testify that they had been sexually assaulted.) In addition, the guilty pleas in Morris County could have become aggravating factors in subsequent proceedings against defendant in Bergen County.

We cannot say that the prosecutor abused his discretion in continuing with the capital trial of this matter. This case is not like State v. Jackson, 128 N.J. 136, 607 A.2d 974 (1992) in which the prosecutor changed course in midstream. In this case it was defendant who caused the change in the course of the proceedings. Defendant had not been declared incompetent to stand trial. Defendant's claim of insanity did not compel the prosecutor to withdraw the notice of aggravating factors. Therefore, the prosecutor's decision to pursue a capital prosecution was not an abuse of discretion.

2. Did the trial court err in refusing to dismiss jurors for cause, thereby depriving defendant of his full allotment of peremptory challenges?

Before us, defendant focused his appeal on two jurors, Arlene P. and Laura J. The test that we have adopted for juror disqualification in State v. Ramseur, supra, 106 N.J. at 255-56, is whether the jurors' views on the death penalty would have substantially interfered with the performance of their duties in accordance with the court's instructions and the law.

Defense counsel initially requested that the court remove juror Arlene P. from the panel on the ground that she was an "automatic death penalty" person. Counsel also sought dismissal for cause based on the juror's skepticism about psychiatric testimony. When asked if she could think of any case in which the death penalty would not be appropriate for an individual convicted of murder, she responded, "I can't. No." Later, in response to rehabilitative questions posed by the prosecutor asking if she were the kind of person who would vote for the death penalty automatically, she replied, "I would have to weigh and measure."

Defendant argues that this kind of forced rehabilitation encouraged the juror to shield her natural views. We have reviewed the colloquy between the prosecutor and the witness and the court's questions. We are satisfied that the court correctly held that the witness' views would not have substantially interfered with her ability to decide a capital case. The court concluded that her inability to give an example of a case in which the death penalty was inappropriate occurred simply because "she couldn't think of a situation at this time."

The court did not rigidly force jurors' responses into a series of "yes" or "no" answers. It gave great leeway to counsel in the voir dire process. The court and counsel posed various hypotheticals to assess the jurors' attitudes.

More troubling were Arlene P.'s answers to questions about psychiatric testimony. When asked her opinion of such testimony, she said: "I don't think it's fair. I--, I--." She explained that she thought the use of such testimony was fair "if the psychiatrist was honest * * * ." The most that she said was "I guess it wouldn't be a problem. It's an -- it probably wouldn't be a problem." The court asked her if she would be able to make a determination "as to that particular witness's testimony automatically." Defense counsel characterizes that as asking whether you believe in apple pie, the flag, and motherhood. Even the prosecutor was concerned that the court's questions could not "necessarily cure all the concerns that [defense] counsel raised," but the court refused to dismiss Arlene P. for cause because of her candor in expressing skepticism about psychiatric evidence.

We have required that trial courts permit a full opportunity to ask prospective jurors about their attitudes toward insanity and mental-health defenses. State v. Moore, 122 N.J. 420, 453-54, 585 A.2d 864 (1991). Here, as in Moore, the concept of mental disease was critical to defendant's case. "Anyone moderately familiar with criminal trials and the public's reaction where juries acquit on murder charges by reason of defendant's insanity knows the strength of these concerns and the vulnerability of the Justice system to extreme erosion of confidence. Sociological studies confirm this." In re Edward S., 118 N.J. 118, 139, 570 A.2d 917 (1990) (citing Valerie P. Hans, An Analysis of Public Attitudes Towards the Insanity Defense, 24 Crim. 393, 396, 404 (1986) (89.2% of those polled believed that insanity defense allowed guilty persons to go free)).

Whether those figures are accurate is not the issue. Many people have a great deal of difficulty in accepting insanity as a meritorious defense. See State v. Jasuilewicz, 205 N.J. Super. 558, 567, 501 A.2d 583 (App. Div. 1985) (requiring, in circumstances of case, "searching" judicial inquiry on juror attitudes toward insanity defense), certif. denied, 103 N.J. 467 (1986). Through questionnaires, its own questions, and with the assistance of counsel, a court should decide whether a juror can evaluate the testimony of psychiatric witnesses by the same standard that he or she would apply to the testimony of any other witness.

That is the approach that was followed here. The prosecutor explained to Arlene P. that "we want[] to put a jury in a position of to be, more or less, a blank slate and then hear all the circumstances and evidence," and that court and counsel were concerned about her willingness to deal with psychiatric testimony. She responded: "I guess I should have answered in a more direct way, which I didn't. I'm sure I don't have any -- I guess I could, you know, evaluate [a case] with a psychiatric evaluation." (Emphasis added). On balance, the court did not err in assessing her ability to serve. The entire colloquy shows a frank exchange of the juror's views and a willingness to evaluate psychiatric evidence.

The other challenged juror, Laura J., was asked to describe her attitude toward the death penalty, and responded: "Sometimes it would be advisable. Rather than have somebody rot in prison if they're never going to make anything of themselves." She explained her answer by saying: "What I meant by that was if there's no hope of rehabilitation or if it's just simply not going to do any good because the crime was too horrible the circumstances were too horrible, I don't know what they are but I could--I really could go either way."

Defendant argues that she should have been dismissed for cause because the view that execution is preferable to rotting in prison has no place in deciding the fate of an individual who wishes to live rather than die. Defense counsel argues that Laura J.'s position, though it might be altruistic, would substantially impair her application of the death-penalty statute. However, those were isolated exchanges in the complete questioning. Immediately after volunteering her first remarks about a death-sentenced prisoner not having to rot in jail, she explained that she did not feel that in all instances a murderer should receive the death penalty. The trial court's reaction was that "She is very thoughtful. She's trying to consider her answers before she responds." Laura J. agreed that she would weigh the aggravating and mitigating circumstances.

These were close questions. Arlene P.'s views on psychiatric evidence were troublesome, as was Laura J.'s view regarding convicted murders "rotting" in jail.

Even if the trial court erred in seating those two jurors, we do not find that the loss of two peremptory challenges produced an unfair trial. In State v. Bey, 112 N.J. 123, 154, 548 A.2d 887 (1988), we explained that an improper denial of a for-cause challenge does not always require a new trial. Among the factors to be considered are whether the jurors were eventually removed from the jury, the stage at which they were removed, the effect on counsel's strategy, any apparent unfairness to the defendant, and whether additional peremptory challenges were required. Court and counsel were well aware of those standards. Defendant requested additional challenges. The court granted defendant an additional peremptory challenge to remove one juror as to whom a challenge for cause had been denied. The State exercised about one-half of its allotted peremptory challenges. Defendant had a fair opportunity to select jurors. Both defense counsel and the prosecutor were given great leeway in posing voir dire questions to the jurors. The court was receptive to almost all of counsels' requests in framing questions. The jury was fairly selected.

3. Did the trial court commit Gerald error by failing to define the difference between intent-to-kill murder and SHI murder in its jury charge?

The Legislature amended the New Jersey Code of Criminal Justice in 1979, c. 178, to include two forms of purposeful or knowing murder. N.J.S.A. 2C:11-3a(1) and (2) (criminal homicide constitutes murder when the actor purposely or knowingly causes death or serious bodily injury resulting in death). (Felony murder is a third form of murder. N.J.S.A. 2C:11-3a(3).) As we explained in State v. Gerald, supra, 113 N.J. at 77-78, when the death penalty was superimposed on the Code of Criminal Justice in 1982, no specific reference was made to which form of knowing and purposeful murder under N.J.S.A. 2C:11-3 would be death-eligible. However, the legislative history of the act helped us determine that it was only the intentional killing that was to be subject to the death penalty. Id. at 89-90.

We thus ruled in Gerald that if required by the evidence a jury must consider, in the alternative, whether defendant purposely or knowingly caused death, or purposely or knowingly caused serious bodily injury that resulted in death. Only the former offense renders a defendant death-eligible. Id. at 69-70. In State v. Dixon, 125 N.J. 223, 253, 593 A.2d 266 (1991), we said: "Under our system of Justice only a jury that knows the difference between the two forms of murder and the question that it must [answer]" may decide who shall be sentenced to death.

Defendant contends that the jury charge did not meet those standards. The charge joined together the two forms of murder without clearly distinguishing them. For example, in its charge the court said:

Now, a person is guilty of murder if he purposely causes death or serious bodily injury resulting in death or knowingly causes death or serious bodily injury resulting in death. In order for you to find the defendant guilty of murder, the State is required to prove each of the following elements beyond a reasonable doubt, one, that the defendant caused [Ron Ellison's] death or serious bodily injury resulting in [Ron Ellison's] death and two, that the defendant did so purposely or knowingly.

That charge separates the mental states of knowledge and purpose, not the mental intents to kill or seriously injure. Later, the court charged the jury: "If you determine that the State has proven beyond a reasonable doubt that the defendant purposely or knowingly caused death or serious bodily injury resulting in death you must find the defendant guilty of murder."

Conscious of the Gerald issue, the court in reviewing the jury's verdict sheet at the Conclusion of the charge, explained that there were two verdicts of murder: "Guilty of murder for purposely or knowingly causing death by his own conduct or guilty of murder for purposely or knowingly causing serious bodily injury resulting in death. Check off one of those." However, neither the instructions nor the verdict sheet explained that only the first form of murder was death-eligible.

Defendant contends that this reference to the verdict sheet, unaccompanied by a reinstruction that the jury must so find unanimously and beyond a reasonable doubt, diluted the State's burden of proof. We are satisfied that, taken in its entirety, the court's charge always emphasized the State's burden to prove those elements (that trigger death-eligibility) unanimously and beyond a reasonable doubt. It stated that "the burden of proving the defendant guilty of the offenses charged here beyond a reasonable doubt is always on the State and that burden never shifts." The jury understood its role in choosing the murder verdict. Among the first comments made in general instructions to the jury panels were these:

Under our law, only certain murders are punishable by death. * * * A defendant convicted of murder is subject to the death penalty only if he purposely or knowingly caused the death of the victim by his own conduct or as an accomplice procured the commission of the offense by paying or promising to pay anything of a pecuniary value.

A defendant who is convicted of knowingly causing serious bodily injury resulting in death is not subject to the death penalty. Stated differently, a defendant who intended to inflict only serious bodily injury and death unintentionally results is guilty of murder, but is not subject to the death penalty, and, similarly, a person convicted of felony murder is not subject to a death penalty.

Every juror was asked if he or she understood the concept of a presumption of innocence and accepted that the State bore the burden of proof on every element of the charge. Defense counsel did ask the trial court to indicate in its instructions that the purposeful or knowing murder verdict was the capital-murder verdict. Counsel could, however, point to no language in Gerald that required that instruction. The prosecutor agreed that some reference in the verdict sheet might be warranted. The court seemed hesitant to do so because it might appear to the jury that it was thereby making a decision on the penalty, although it recognized that it could give the jury a cautionary instruction. In the end, the court was satisfied that 'we would be able to tell from the verdict that the jury checks off whether it's capital or non-capital." The point could have been more clearly stated in our Dixon decision.

In future cases, whether required by constitutional compulsion or not, courts should explain to juries the difference between the forms of murder submitted for their verdict (e.g., where appropriate, murder as principal or accomplice, or as accomplice who has given value to procure the killing), that some are capital and others are not, and that they must agree unanimously and beyond a reasonable doubt on those elements of their verdict that trigger death eligibility. Under the principles of State v. Mejia, N.J. (1995) (also decided today), and State v. Brown, 138 N.J. 481, 651 A.2d 19 (1994), courts must instruct juries that to convict one of murder that is not deatheligible they need not unanimously agree on the form of murder, provided that they agree unanimously and beyond a reasonable doubt that the defendant is guilty of murder.

But this is not a case of a reviewing court with an uncertainty about the basis for the jury's verdict. Nor is this a case in which the jury convicted defendant of murder without specifying on which of the two distinguishable bases he was convicted. See State v. Gerald, supra, 113 N.J. at 92. We have a separate, unanimous verdict that the defendant by his own conduct knowingly or purposely caused the death of Ron Ellison.

Even when we could not discern the basis for the jury's murder verdict (intent to kill or SHI), we have not reversed on Gerald grounds absent a rational basis for the jury to find an intent merely to cause serious bodily injury. See State v. Bey, 129 N.J. 557, 581, 610 A.2d 814 (1992) (finding failure to give Gerald charge harmless, even when aggravated manslaughter had been charged, because "evidence that defendant [who stomped and strangled victim] intended to cause death or knew that death was practically certain to occur [was] so compelling as to exclude the possibility that he possessed a less culpable state of mind"); State v. Rose, 120 N.J. 61, 63-64, 576 A.2d 235 (1990) (holding that one who fired shotgun into police officer's stomach at close range had to be practically certain the shot would cause death); State v. Hightower, 120 N.J. 378, 413-14, 577 A.2d 99 (1990) (holding that shooting victim in chest, neck, and head supports a finding of intent to kill). Compare State v. Clausell, 121 N.J. 298, 313-16, 580 A.2d 221 (1990) (finding evidence that defendant, aiming low, shot victim through door could rationally support finding that defendant intended only serious bodily injury); State v. Pennington, 119 N.J. 547, 560-65, 575 A.2d 816 (1990) (finding evidence that defendant reflexively fired gun when victim threw a glass at him was sufficient to warrant Gerald charge).

In this case, the jury returned a separate verdict sheet that found the defendant guilty of knowingly and intentionally causing death, the principal theme of the defense was insanity or diminished capacity, and no rational jury could have found that one who shoots a handcuffed victim in the back of the neck would not have been practically certain that death would result, Therefore, we find that any failure to describe more fully the difference between intent-to-kill murder and SBI murder was harmless.

The New Jersey Constitution was amended in 1992 to permit capital punishment of a defendant who intended only serious bodily injury resulting in death without offending the prohibition against cruel and unusual punishment contained in the New Jersey Constitution. N.J. Const. art. 1, P 12. The Legislature amended the Criminal Code to reflect that change. N.J.S.A. 2C:11-3i.

Because this homicide took place before those constitutional and statutory amendments, the Gerald distinction applied to this trial. A capital charge without distinction between the two forms of murder under our statute (intentional or SHI) would not offend the New Jersey Constitution. Courts and counsel formulating charges to juries in future cases, however, should clarify that the mental state required for a capital conviction based on SHI murder should be consonant with the federal constitutional mandate in Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987), that the actor be recklessly indifferent to whether the result of the conduct would be death. State v. Gerald, supra, 113 N.J. at 74-75.

4. Should the trial Judge have instructed the jury that if it agreed that defendant purposely or knowingly caused death or serious bodily injury resulting in death but was divided on the question of whether the defendant's intention was to kill or injure, it could return a verdict of guilty of noncapital murder on the basis of that non-unanimous finding?

This point is identical to one raised in State v. Mejia, supra, N.J. also decided today. In Mejia, N.J. at (slip op. at 13), following the principles set forth in State v. Brown, supra, 138 N.J. 481, the Court explains that a jury need not be unanimous on the various theories under which guilt for murder may be established. Thus, for example, one may be found guilty of murder even if jurors do not unanimously agree whether the actor's role was that of principal, accomplice, or co-conspirator. State v. Brown, supra, 138 N.J. at 520-22. So, too, in non-capital murder cases we have never required that a jury be instructed that it must be unanimous on whether the defendant knowingly or purposely intended to cause death, or knowingly or purposely intended to cause serious bodily injury resulting in death. In State v. Mejia, supra, N.J. at (slip op. at 13), the Court holds that in the circumstances of that case the jury should have been instructed that it could have returned a verdict of guilty of murder although they were not unanimous on the theory of murder, whether intentional or SBI.

If there were any possibility that this jury reached an incorrect verdict because of the omission of a Brown/Mejia charge, we would set aside the capital conviction. Given the overwhelming evidence of intent to kill and the absence of any evidence of an intent merely to injure, we are convinced that the omission of such a charge did not prejudice defendant. The inexorable focus of this case was the troubled mental state of defendant. In his opening statement, defense counsel acknowledged where his focus lay, saying "we do not suggest for a moment that you acquit Joseph ...


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