The opinion of the court was delivered by: O'halloran
Defendant William Menter has made motions to strike two of the aggravating factors which the State intends to prove at the penalty phase of trial to support a sentence of death. See State v. McCrary, 97 N.J. 132, 478 A.2d 339 (1984). Specifically, defendant contends that there is insufficient evidence to support a finding by the jury that he murdered the victims while attempting to commit an aggravated sexual assault upon Joann Roberts. N.J.S.A. 2C:11-3c(4)(g).
Defendant also maintains that there is inadequate evidence to support a finding that the alleged murders "involved torture, depravity of mind, or an aggravated assault . . . ." N.J.S.A. 2C:11-3c(4)(c). The State charges this aggravating factor under two theories. First, the State asserts that defendant intended to, and did in fact, cause Latisha Roberts (who was not a victim) extreme mental suffering by killing her family. Second, the State submits that defendant intended to, and did in fact, cause extreme physical or mental suffering -- in addition to death -- when he killed Joann, Isabella and Shakia Roberts.
Defendant has also filed a motion to dismiss counts four through nine *fn1 of the indictment. He contends that there was inadequate evidence presented to the grand jury to support these counts. He further asserts that the evidence submitted was deficient in that it was hearsay. Finally, he argues that the prosecutor presented the charges to the grand jury in such a way that the panel unreasonably "deferred to the prosecutor's judgment." Defendant's Brief in Support of Motion to Dismiss Counts 4-9, at 2.
First, this court denies defendant's motion to strike aggravating factor three (attempted aggravated sexual assault). Specifically, this court finds that "a reasonable fact finder could . . . conclude that [the] aggravating factor exists." McCrary, supra, 97 N.J. at 144. "Defense motions to strike an aggravating factor should be brought only when the supporting evidence is so thin, so lacking, so weak as to leave no room in the minds of a reasonable fact-finder as to the existence of that aggravating factor." Id. at 147 (emphasis added). Clearly, that is not the case here. The State is ordered to provide defendant with a bill of particulars detailing the charge of attempted aggravated sexual assault. R. 3:7-5.
Defendant's motion to dismiss counts four through nine of the indictment is similarly denied. This court finds that the evidence submitted to the grand jury was sufficient to sustain the indictment. Furthermore, that evidence was not incompetent because much of it was based upon hearsay. Both the New Jersey and United States Supreme Court have long held that an indictment based on hearsay is valid. State v. Dayton, 23 N.J.L. 49, 56 (Sup. Ct. 1850); Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 408, 100 L. Ed. 397, 402-03, reh'g denied, 351 U.S. 904, 76 S. Ct. 692, 100 L. Ed. 1440 (1956) (an indictment may be returned on the basis of hearsay).
This court also finds that the challenged counts of the indictment were not the result of the prosecutor's exercise of undue influence over the grand jury. A prosecutor's conduct is granted a presumption of validity. In re Investigation Regarding Ringwood Fact Finding Comm., 65 N.J. 512, 516, 324 A.2d 1 (1974); State v. Laws, 51 N.J. 494, 242 A.2d 333, cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968). Defendant's allegation that the prosecutor improperly impelled the grand jury to return an indictment for attempted aggravated sexual assault is unfounded. This court finds that the prosecutor exercised his charging duty in good faith.
Finally, defendant's motion to strike aggravating factor two (N.J.S.A. 2C:11-3c(4)(c)) is denied in part and granted in part. The State is restricted to the theory that William Menter intended to, and did in fact, cause Latisha Roberts extreme mental suffering when he killed her family. The State is ordered to supply defendant with a bill of particulars clearly delineating that theory. R. 3:7-5.
However, this court rejects the State's second theory. There is no evidence that defendant "intended to inflict pain incremental to that attributable to the act of killing." State v. Erazo, 126 N.J. 112, 138 (1991). As such, the State is precluded from asserting at trial that defendant intended to cause Joann, Isabella and Shakia Roberts extreme physical or mental suffering -- in addition to death.
Evidence Submitted by the State
The facts as alleged before the grand jury, and elicited from witnesses, follow. Latisha Roberts (Latisha) *fn2 had been dating defendant, William Menter, sporadically for five years. On July 15, 1994, Menter proposed marriage to Latisha.
Latisha was not receptive. Apparently, she had wanted to terminate her relationship with Menter for some time. She had hesitated because she feared defendant. Nevertheless, on July 15, Latisha declined defendant's offer of marriage and informed Menter that she wanted to end their relationship. The next day, she went to stay with friends, hoping to avoid defendant.
Menter spent much of July 16 attempting to locate Latisha. He went to several of her friends' homes to inquire as to her whereabouts. He was unsuccessful. Eventually, defendant arrived at Latisha's home.
Latisha lived with her mother, Joann Roberts (Joann), and her grandmother, Isabella Roberts (Isabella), at 165 Wegman Parkway. On the evening of July 16, three of Latisha's cousins were spending the night at her house. They were Shakia Roberts (Shakia) age seven; Omar Roberts (Omar), age twelve; and their younger brother Zaire Roberts (Zaire), age two.
Omar was watching television in the living room when he heard a knock at the front door. His aunt, Joann, answered the door. Defendant (whom Omar recognized as his cousin Latisha's boyfriend William) entered. He asked to speak with Joann alone in the kitchen. A short time later, Omar heard something fall to the floor.
Omar arose from the couch and went to the kitchen. When he entered, he observed his Aunt Joann lying on the floor. Defendant was standing over her. Omar shouted: "get off my aunt."
At that point, defendant grabbed Omar by the ear and began to slash his throat with a box cutter (razor). Thereafter Isabella, who had been sleeping, came out of her bedroom and towards the kitchen. Defendant released Omar and began slashing Isabella's throat.
Omar ran down the hallway and hid under his Aunt Joann's bed. His sister Shakia, who had been sleeping in the bed, awoke. Omar warned his sister to stay away from William. Shakia ran out into the hallway. Omar heard her shout: "William, I didn't do anything." Omar further recounted that his grandmother Isabella, whom he heard gasping for air, was attacked again.
Shakia reentered the bedroom bleeding from her neck. Defendant followed her. Defendant told Shakia to "lay on the bed and I'll take you to the hospital." He proceeded to slash her throat again, pushing her body under the bed where Omar was hiding. Defendant told Omar that "this shouldn't have happened." He then grabbed Omar and slashed his throat again.
At some point after the attack in the bedroom, Omar heard defendant speaking on the telephone. He heard him say: "Michelle *fn3, don't do this to me. Where is Latisha?" After this conversation defendant left the bedroom and later, the house.
Omar's next recollection is of a flashlight shining through the bedroom window. He exited the bedroom and fell into the arms of Jersey City Police officers who had broken into the house after observing Joann Roberts' body lying on the kitchen floor.
In addition to the wounded Omar (who survived), the officers found the bodies of Joann (on the kitchen floor), Isabella (who had been dragged into the bathroom), and Shakia (who had been shoved under the bed where Omar had been hiding).
Joann was found lying on her back with her legs spread apart. Her shorts and panties were pulled down around her left ankle, exposing her genitalia. Her blood stained shirt was pushed up, partially revealing her breasts. Subsequent forensic tests revealed no evidence indicative of a completed sexual assault.
The officers also found two styrofoam plates at the crime scene. The following message was written on one plate: "Tecia *fn4, never fuck with me in life." The other plate read: "you may have cracked my world, but I devastated yours, go to hell, I'll be waiting for you."
On October 21, 1994, William Menter was indicted for the murders of Joann, Isabella, and Shakia. He was also charged with the attempted murder of Omar. Additional charges included attempted aggravated sexual assault upon Joann and the felony murders of Joann, Isabella, and Shakia (all predicated upon the attempted aggravated sexual assault of Joann).
Defendant was arraigned before this court where he entered pleas of not guilty to all charges. At arraignment, the State provided defendant with a notice of aggravating factors intended to support a sentence of death for the three murders. Those factors were:
1. Each of the murders was committed while the defendant was engaged in the commission of the other murders. N.J.S.A. 2C:11-3c(4)(g).
2. The offenses were outrageously or wantonly vile, horrible or inhuman in that they involved torture, depravity of mind or an aggravated battery to the victims. N.J.S.A. 2C:11-3c(4)(c).
3. The offenses were committed while the defendant was engaged in the commission of an attempted [aggravated] sexual assault. N.J.S.A. 2C:11-3c(4)(g).
4. The offenses were committed in a matter wherein defendant purposely created a grave risk of death to another. N.J.S.A. 2C:11-3c(4)(b).
The State has since withdrawn the fourth aggravating factor, acknowledging that the evidence did not support it. Defendant has not challenged the first aggravating factor in the instant set of motions.
Defendant has, however, challenged the second and third aggravating factors. He has filed motions to strike these factors pursuant to State v. McCrary, 97 N.J. 132, 478 A.2d 339 (1984). He has further moved to dismiss counts four through nine of the indictment, arguing, among other things, that the State presented insufficient and inappropriate evidence to the grand jury to sustain these counts.
Motion to Strike Third Aggravating Factor
First, this court will address the validity of the third aggravating factor, i.e., that the offenses were committed while defendant was engaged in the commission of attempted aggravated sexual assault. N.J.S.A. 2C:11-3c(4)(g). As such, the initial question is whether a reasonable fact-finder could conclude that the aggravating factor exists. McCrary, supra, 97 N.J. at 144.
Above all, this court is mindful of the high standard that defendant must meet in order to strike an aggravating factor prior to trial. McCrary places the burden of proof squarely upon defendant. "A defendant who challenges the sufficiency of the evidence to support an aggravating factor bears the burden of proving that contention." Id. at 147.
To counter such a motion, the prosecutor "[need not] prove his case before trial. [He need only present] some evidence that justifies the submission of the specified aggravating factors to the trier of fact at the sentencing phase of the case . . . ." Id. at 143 (emphasis added).
This court is satisfied that the State has presented some evidence that William Menter attempted an aggravated sexual assault upon Joann Roberts. The final resolution of the question of whether he did in fact commit the crime is for the jury. They are the final arbiters of the facts, and it is before them that the State must prove its case beyond a reasonable doubt. The standard here is considerably less strenuous.
The evidence that the State presented to support the attempted aggravated sexual assault aggravating factor is recited above. Specifically, the State offered the statement of Omar. He recounted that he entered the kitchen and shouted to the defendant: "get off my aunt [Joann]." He further stated that defendant was "standing there and my aunt was on the floor." When asked when he saw "how she was," Omar responded that he did not see "how she was" until "the cops came." It is presumed that "how she was" refers to the state of Joann's body.
The statement of Omar is somewhat inconclusive. What is more conclusive are photographs of Joann's body, as it was found at the crime scene. This court has had the opportunity to view these photographs. They reveal the body of Joann Roberts. She is lying on her back. Her shorts and panties are pulled down to her left ankle. Her legs are spread apart. Her shirt is pushed up. Her breasts are partially exposed.
This court is satisfied that these photographs constitute "some evidence that justify the submission of the [third] aggravating factor . . . to the trier of fact at the sentencing phase of [this] case," (if the case proceeds to that point). McCrary, supra, 97 N.J. at 143. Whether a jury will be satisfied beyond a reasonable doubt that the State has proven the aggravating factor is an entirely different matter. That is for the jury to decide. This court will not usurp its function.
Analysis of Attempted Aggravated Sexual Assault
To fully comprehend and examine the soundness of the third aggravating factor, it is necessary to review the law of attempted aggravated sexual assault. *fn5 Unfortunately, there is sparse treatment of this crime in New Jersey case law.
This court has laid down the rule that "an attempt to commit a rape does not begin with the act of penetration, but with the primary attack upon the woman made for the purpose of carrying out the intent: and this intent may be formed at the very moment of the attack." State v. Knight, 96 N.J.L. 461, 470, 115 A. 569 (E. & A. 1921). An attempt to commit a crime has three elements: first, the intent; second, performance of some act towards commission of the crime; and third, the failure to consummate the commission of the crime. State v. Schwarzbach, 84 N.J.L. 268, 86 A. 423 (E. & A. 1913).
[ Swan, 131 N.J.L. at 69 (emphasis added).]
As in the instant case, the defendant in Swan overpowered his victim and stripped off her clothing. After severely beating the victim, Swan threw her body out of the upstairs window of the movie theater where he had assaulted her. Her nude body was found the next day. Swan, 131 N.J.L. at 68.
The State did not claim that the defendant raped the victim. However, the State did contend that the evidence supported defendant's conviction for attempted rape. The high court agreed.
Applying . . . settled rules of law, it is entirely clear to us that under the proofs and the inferences that may properly be drawn therefrom the jury was fully justified in finding that Swan intended to rape this girl and that his intention was followed by definite overt acts, namely, his actions when accosting her and the entire circumstances, including the taking of the girl after she was overpowered to a secluded spot back stage and the tearing off of her clothing. The verdict was not, we conclude, against the weight of the evidence.
[ Id. at 69 (emphasis added).]
The defendant's death sentence for murder was affirmed.
Is there "some evidence" of intent?
Mindful of Swan's definition of attempted rape, the next question is whether there is "some evidence " to suggest that defendant may have formed the intent to commit an aggravated sexual assault upon Joann Roberts. McCrary, supra, 97 N.J. at 143; Swan, 131 N.J.L. at 69. Intent is "a mental attitude which can seldom be proved by direct evidence, but must ordinarily be proved by circumstances from which it may be inferred. [It is] a state existing at the time a person commits an offense and may be shown by act[s], circumstances and inferences deducible therefrom. " Black's Law Dictionary 810 (6th ed. 1990) (emphasis added) (citations omitted).
Swan holds that intent to rape may be inferred from the initial assault upon a woman. This proposition has its basis in the common law. Prior to the enactment of N.J.S.A. Title 2C in 1979, New Jersey's criminal statutes were derived from the common law. As such, there were separate crimes of attempted rape and assault with intent to rape. "Any person who commits an assault with intent to . . . rape . . . is guilty of a high misdemeanor." N.J.S.A. 2A:90-2, repealed by N.J.S.A. 2C:12-1; see, e.g., State v. Gibbs, 79 N.J. Super. 315, 320-21, 191 A.2d 495 (App. Div. 1963) (defendant's conviction for assault with intent to rape sustained where he beat and stripped victim but failed to penetrate her).
With the abolishment of common law crimes and the institution of the criminal code in 1979, assault with intent to commit rape was eliminated. *fn7 As such, assault with no other action is now covered by N.J.S.A. 2C:12-1 (assault statute).
Nevertheless, the reasoning of Swan remains. An assault, coupled with other actions intimating attempted rape, is a constituent element of attempted rape. Accordingly, Swan holds that when the second (performance of some act toward commission of the crime) and third (failure to consummate commission of the crime) elements of attempted rape are joined with an assault (indicating intent), the crime is complete. Swan, supra, 131 N.J.L. at 69.
In the instant case, there is obvious evidence that defendant assaulted Joann. Intent can be inferred from this assault and the actions which allegedly followed (i.e., ...