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State v. Loftin

August 8, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD LOFTIN, DEFENDANT-APPELLANT.



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

The opinion of the Court was delivered by Garibaldi, J. Justices Pollock, Stein and Coleman join in Justice Garibaldi's opinion. Justice Handler has filed a separate Dissenting opinion. Justice O'hern has filed a separate Dissenting opinion in which Justice Handler joins.

The opinion of the court was delivered by: Garibaldi

(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 of New Jersey v. Donald Loftin (A-39-95)

Argued April 30, 1996 -- Decided August 8, 1996

GARIBALDI, J., writing for the Court.

The victim, Gary K. Marsh, was working the midnight shift at an Exxon gas station on May 9, 1992. At 6:10 a.m., the employee who was scheduled to relieve Mr. Marsh found him lying in the gas station office with a bullet wound in the head. A shell casing was found near his body and the bullet was retrieved from the back wall of the office. Mr. Marsh died without regaining consciousness.

The gas station office was small, approximately nine feet by thirteen feet, without taking into account the furniture. There was no evidence of a struggle. The office was not disturbed, and Mr. Marsh's body showed no signs of any other wounds. Missing were Mr. Marsh's wallet and approximately $90 from the evening's receipts, including a fifty-dollar bill used by a customer to purchase gas from Mr. Marsh at around 4:00 a.m.

Defendant was arrested in Pennsylvania four days later while attempting to make a purchase with one of Mr. Marsh's credit cards. He had other credit cards belonging to Mr. Marsh in his possession, as well as Mr. Marsh's driver's license and social security card. He also had a fifty-dollar bill.

Pursuant to a search warrant, the police searched defendant's car and home. In the car, the police found a .380 caliber pistol that ballistics tests revealed to be the murder weapon. The receipt for the gun, which was purchased in Pennsylvania a short time earlier, was found on defendant's person. Police found over 500 rounds of ammunition for the gun in defendant's home.

The State served notice of its intent to prove three aggravating factors: prior murder conviction; murder to escape apprehension; and murder committed during the course of a robbery. Defendant had previously been convicted of the March 28, 1992 murder of sixty-nine year old Sophia Fetter in Atlantic County. Defendant was convicted of this murder on September 22, 1993.

A jury convicted defendant of the murder of Mr. Marsh. A separately-empaneled jury returned a death-penalty verdict.

HELD: Defendant's murder conviction and death sentence are affirmed.

1. It was not plain error for the trial court to fail to death-qualify the guilt-phase jury or to conduct individualized voir dire of that jury. Defendant was not deprived of his ability to mount a defense as a result of trial court limitations on his attorney's cross-examination and summation. (pp. 30-46)

2. The trial court's failure to include a Mejia charge that informed the guilt-phase jury of the option of returning a non-unanimous verdict on the defendant's mental state (intent to kill or inflict serious bodily injury) was harmless. There was no rational basis for a juror to conclude that defendant did not intend to kill his victim, since defendant, who was experienced with guns, fired a bullet into the side of Mr. Marsh's head from close range without any signs of struggle. (pp. 46-55)

3. There was no reversible error in the penalty-phase as a result of the testimony by defendant's trial attorney in the Atlantic County murder that defendant did not have a mental health defense to that murder; testimony by the State's examining psychiatrist about defendant's statements during a psychiatric examination; and the trial court's instructions to disregard portions of defendant's allocution statement. (pp. 57-67)

4. The brief outburst by a courtroom spectator after defendant's allocution statement did not operate to unduly prejudice the jury against defendant. Since defendant's counsel objected to any instruction by the trial court that would highlight the outburst, defendant cannot now complain that the trial court's inquiry to the jury was not sufficiently probing. (pp. 67-72)

5. It was not reversible error for the trial court to refuse to allow the jury to consider under the catch-all mitigating factor the hardship on defendant's family or that defendant would likely die in prison. The trial court's instructions in respect of the mitigating factor of extreme mental or emotional disturbance and in respect of jury unanimity on mitigating factors were sufficient when the court's instructions are examined in their entirety. (pp. 72-85)

6. The circumstantial evidence presented by the State indicates that defendant did not have to kill Mr. Marsh to effectuate the robbery. This evidence was sufficient to submit to the jury the aggravating factor of murder to avoid apprehension, and the trial court's instructions on that factor were adequate. (pp. 85-91)

7. A newspaper article that quoted a juror as stating that the jury never lost sight of the fact that the victim also had a family did not demonstrate the requisite good cause for interviewing the jurors. (pp. 92-94)

8. Although some of the comments made by the prosecutor were improper, they do not require reversal, especially given the curative instructions of the trial court. Further, the trial court's limiting instruction concerning evidence of defendant's arrest for using Mr. Marsh's credit cards was sufficient. (pp. 95-114)

9. Given the overwhelming evidence of defendant's guilt, the cumulative effect of any trial errors was not clearly capable of affecting either defendant's conviction or his sentence. (pp. 114-115)

Defendant's murder conviction and his death sentence are AFFIRMED.

JUSTICE HANDLER, Dissenting, is of the view that this capital-murder prosecution was rife with errors that strike at the core of our system of capital punishment. These errors include the unbounded and undisciplined use of the aggravating factor of murder to avoid apprehension; failure to death-qualify the guilt-phase jury; and undue restrictions on defendant's ability to proffer relevant mitigation evidence.

Justice O'HERN, Dissenting, in which JUSTICE HANDLER joins, is of the view that the trial court committed reversible error when it failed to instruct the jury that it need not be unanimous as to whether defendant intended to kill or to inflict serious bodily injury. Although the evidence strongly sustains the inference that defendant intended to kill, it is impossible to conclude that a juror could not have found otherwise given the proper instruction.

JUSTICES POLLOCK, STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion. JUSTICE HANDLER has filed a separate Dissenting opinion. JUSTICE O'HERN has filed a separate Dissenting opinion in which JUSTICE HANDLER joins.

The opinion of the Court was delivered by

GARIBALDI, J.

A jury convicted defendant, Donald Loftin, of the murder of Gary K. Marsh. At the penalty-phase hearing, a separately empanelled jury returned a death-penalty verdict, and the trial court sentenced defendant to death. Defendant appeals directly to this Court as of right. See Rule 2:2-1(a)(3). We affirm defendant's conviction for murder and his sentence of death.

I

A. Guilt Phase

1. The crime

On May 5, 1992, Gary Marsh was working the midnight to six-thirty a.m. shift at an Exxon service station located on Alternate Route One in Lawrenceville, New Jersey. Marsh had a key to the office that was located behind the gas pumps, away from the highway. At approximately 4:10 a.m., E. Thomas Citron stopped for gas at the station. He paid for his gas with a fifty-dollar bill.

David Paddock was scheduled to relieve Marsh at 6:30 a.m. Arriving early, at approximately 6:10 a.m., he waited in his parked truck. Paddock observed a customer pull up to the pumps, wait without service, and ultimately leave. Paddock then left his truck to find Marsh.

Approaching the station office, Paddock saw three large planters, a cola machine, a pile of pink slip receipts, and a half-eaten orange. The orange was found on the ground just outside the passenger door of Marsh's car. Paddock further observed the office keys in the door. The door was unlocked, but pulled closed. Marsh lay inside the office, his head in a puddle of blood. Paddock closed down the station and called the Lawrenceville Police. The murder had occurred between Citron's visit at 4:10 a.m. and Paddock finding Marsh at 6:10 a.m.

Marsh lay on his back with his head located three feet from the front doorway that was located in the northeast corner of the office. Officer Maple, one of the first police officers on the scene, observed that a large amount of blood was on the floor next to Marsh's head. His feet were pointed toward the southwest (back) corner of the office. Marsh's arms were at his side and his eyes were shut. His right eye was black and blue. Although still alive, Marsh was unconscious and struggling for breath.

Marsh's clothing did not appear to have been disturbed. His pockets were not turned out and he still was in possession of some personal items, including three dollar bills, some change, and lottery tickets. A spent brass shell casing was found on the office floor, four to six inches from Marsh's left ear. Further, the cash drawer sat empty on one of the counters and there was also some loose change on the floor. Closer examination of the station office revealed several crucial pieces of evidence. While no fingerprints of defendant were found anywhere in or around the station, the bullet used to kill Marsh served a similar purpose. The bullet that killed Marsh was found behind a pegboard that hung on the back wall of the office. A few of Marsh's hairs were removed from the area of the bullet hole. Later ballistics testing traced that bullet to a .380 caiber Bryco Model 48 pistol, purchased by defendant from D & S Gun Supplies of Levittown, Pennsylvania, and subsequently discovered by the police in defendant's car under the dashboard.

Additionally, Mr. Peterson, the station owner, determined that approximately ninety dollars had been taken from that evening's revenue. Moreover, although Mr. Citron reported purchasing gas from Marsh with a fifty-dollar bill around 4:00 a.m., there was no fifty-dollar bill in the proceeds or on Marsh's person. Defendant was in possession of a fifty-dollar bill at the time of his arrest. However, the two fingerprints detected on that bill did not belong to Marsh, Loftin, or Citron.

Further examination of the office revealed the absence of a struggle, a significant fact because the office is particularly small and narrow. Without taking account of the furniture in the office, the dimensions of the room are nine feet seven inches by thirteen feet, five inches. The office furniture did, however, consume considerable floor space. As Officer Maple testified, "Nothing appeared to be touched or disturbed or moved or appeared out of place. I mean, it was . . . the office was, to me appeared basically untouched. There was no signs of any struggle or anybody going through or gone through anything there."

Marsh never regained consciousness and died approximately nine and one half hours after he was discovered bleeding in the Exxon station. The next day, Mercer County's Chief Medical Examiner, Dr. Raafat Ahmad, conducted an autopsy and concluded that the cause of death was a gunshot wound to the head and that the manner of death was homicide. The entry wound was located in the left temporal region, with the bullet grazing the top of the left ear on entry. The bullet penetrated Marsh's skull, passed directly through both hemispheres of his brain, and exited on the opposite side at the right temporoparietal area, slightly above the right temple. Dr. Ahmad opined that the bullet's slight upward path through the skull was possibly caused by the tilting of the head on impact. The bullet caused fracturing lines to run from the top to the base of the skull on both sides. The doctor testified that Marsh's right eye was black and blue as a result of the bullet causing fractures inside the skull and the blood seeping into the eye area.

Dr. Ahmad observed that Marsh had no external injuries, cuts or bruises. There were no "defense wounds" on the hands or arms that would have been indicative of a struggle.

2. The arrest

Because the police had been unable to find Marsh's wallet, Detective Burns notified each of Marsh's credit card companies that a murder and robbery had taken place. Burns requested that the Lawrenceville Police should be contacted if anyone attempted to use the cards.

Defendant was arrested four days after the murder, on May 9, 1992, when he attempted to purchase a family computer from a Sears store in Pennsylvania with a Sears charge card belonging to Marsh. After selecting a computer system, defendant agreed to open a "Sears Plus" account in order to help finance the purchase. Defendant handed the Sears sales representative, Mr. Cassidy, the driver's license and Sears charge card belonging to Marsh.

Mr. Cassidy called the central credit office and spoke with John Metzler. Cassidy provided some general information to Metzler and then Metzler spoke directly to defendant, who identified himself as Gary Marsh and provided Metzler with relevant factual information, including Gary Marsh's name, social security card number, age, address, and the fact that he was employed by Exxon.

Metzler discovered the message from the Lawrenceville Police as soon as he accessed Marsh's account. Metzler thereupon instructed Cassidy to stall defendant because this was a potential case of credit fraud. Mr. Metzler then called the Lawrenceville Police and thereafter the Middletown Police, as well as store security. Store security videotaped the events leading up to and including the arrest of defendant for receiving stolen property, fraudulent use of a credit card, and theft by deception. The videotape of the arrest was played to the jury at the guilt and penalty phases of the trial.

A search of defendant's person was conducted at Sears, whereupon the police recovered his bi-fold wallet from his left breast pocket. The wallet did not belong to Marsh, but when Officer Burnett searched the plastic insert of the wallet at the Middletown Township police station, he found four of Marsh's cards: two credit cards, a social security card, and a health insurance card.

Also found in the wallet were both Mr. Loftin's and Mr. Marsh's driver's licenses; some identification and health plan cards in Mr. Loftin's name; various cards belonging to Mr. Marsh including credit cards, a bank card, and a vehicle registration card; a gun permit in Mr. Loftin's name from the State of Washington; a receipt [from D & S Gun Supplies of Levittown, Pennsylvania] for the purchase of a [.380 caliber Bryco Model 48 pistol and the receipt indicating that Loftin paid in full for the gun,] and a fifty-dollar bill. The items that belonged to Marsh and defendant were mixed in together, and the date and eye color on Marsh's driver's license had been altered so as to conform to defendant's appearance. None of the items in the wallet indicated that Marsh had worked at Exxon.

At the time of the offense, defendant, who was twenty-six years old, was residing with his wife Dorothy and two young children, five-year old Danielle and one-year old Jay, in Bristol, Pennsylvania. The police obtained and executed a search warrant of defendant's home and car. At his home they found a box in a closet that contained 500 rounds for a .380 caliber weapon, and a smaller box that contained 26 (of its original fifty) bullets. Various items for making one's own ammunition were also found and confiscated, including smokeless powder, reloading dies, a reloading scale, a powder measurer, and a turret press. The ammunition that was confiscated from Loftin's home was compatible with the murder weapon. An application form for a gun club was seized from the living room closet. The police also confiscated several articles of clothing from defendant's home. Neither blood nor gunshot residue was detected on any of Loftin's possessions.

In defendant's car, the police found the murder weapon, a .380 caliber gun equipped with a safety that required ten and one half pounds of weight in order to fire the gun. The gun found in defendant's car bore a serial number matching the serial number on a receipt for a recent gun purchase found in defendant's wallet. State Trooper Stephen Deady, the State's ballistics and firearms expert, testified that the spent shell retrieved along-side Marsh's head, and the bullet retrieved from the Exxon office wall behind the pegboard, had both been fired and discharged from defendant's gun. The weapon was hidden under the dashboard on the driver's side. Also in defendant's car were two magazines for a semi-automatic weapon. One magazine was empty and one was partially loaded. There was also a "side-kick" shoulder holster under the driver's seat.

The police additionally found a plastic mask in defendant's car. However, the mask was not confiscated as evidence, and no member of the team that searched defendant's car mentioned finding the mask. Rather, it was only during the penalty-phase cross-examination of Detective Burns that for the first time the State acknowledged the mask's existence.

On September 11, 1992, defendant was indicted on four counts: purposefully or knowingly murdering Gary K. Marsh by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) and (2) (count I); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count II); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count III); and second-degree possession of a handgun with a purpose to use it unlawfully, contrary to N.J.S.A. 2C:39-4a (count IV). Defendant pleaded not guilty.

Subsequently, the State served a notice of its intent to prove three aggravating factors: N.J.S.A. 2C:11-3c(4)(a) (c(4)(a)) (conviction for another murder); N.J.S.A. 2C:11-3c(4)(f) (c(4)(f)) (murder to escape apprehension for another offense); and N.J.S.A. 2C:11-3c(4)(g) (c(4)(g) (murder committed during the course of a robbery). The c(4)(a) prior-murder aggravating factor is based on an Atlantic County conviction for the March 28, 1992, knowing or purposeful murder of sixty-nine year old Sophia Fetter. Defendant was convicted of the Fetter murder on September 22, 1993. His conviction was affirmed by the Appellate Division. State v. Loftin, 287 N.J. Super. 76, 670 A.2d 557 (App. Div. 1996). We denied defendant's petition for certification concerning the Atlantic County murder. 144 N.J. 175 (1996).

The guilt and penalty phases of the trial were tried before different juries with the same Judge presiding over both phases. Defendant filed several pretrial motions including a motion to strike aggravating factor c(4)(f). Those motions were denied. The State presented witnesses and evidence, including a videotape of defendant's arrest at Sears, to establish the above-mentioned facts. Defendant did not testify and called no witnesses at the guilt phase. Prior to summations, the State moved to preclude the defense from arguing that the killing was the result of "a robbery gone bad." The defense argued that it should be allowed to make arguments from the absence of evidence about what had occurred at the gas station and from Dr. Ahmad's testimony that the evidence did not preclude an accidental shooting. The trial court barred the defense from presenting the "robbery gone bad" argument, stating that there was not sufficient evidence to support it.

On July 8, 1994, defendant was found guilty on all counts. Specifically, the jury concluded that defendant's intent was to kill the victim, Gary Marsh, as opposed to causing him serious bodily injury. The jury also found that defendant had murdered Gary Marsh by his own conduct.

B. Penalty Phase

Prior to the penalty phase trial, defendant filed a Notice of Mitigating Factors which included the following four statutory mitigating factors:

l. Defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(a);

2. Defendant's age, 26 at the time of the murder, N.J.S.A. 2C:11-3c(5)(c);

3. Defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect, but not to a degree sufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(d);

4. Defendant had no significant history of prior criminal activity, N.J.S.A. 2C:11-3c(5)(f).

Defendant also proposed twenty-nine specific factors pursuant to the catch-all statutory mitigating factor, N.J.S.A. 2C:11-3c(5)(h):

5. Defendant was traumatized by the loss of his father at an early age;

6. Defendant was traumatized by a fire he accidentally set that resulted in the loss of the family home;

7. Defendant was emotionally impoverished when growing up;

8. Defendant was deprived of an environment where he could verbalize his sense of loss;

9. Defendant was raised in poverty;

10. Defendant was deprived of a positive male role model while growing up;

11. Defendant was a considerate and loving son;

12. Defendant provided his siblings with a positive sense of direction;

13. Defendant developed and evidenced strong spiritual and religious standards;

14. Defendant assumed the responsibility of the man in the family before he was emotionally and financially prepared to do so;

15. Defendant was forced to become estranged from his family after he got married, choosing to align himself with his wife at the expense of his family of origin;

16. Defendant was traumatized by the loss of his first son, but did not have the support of his mother to help him deal with his pain;

17. Defendant maintained employment and provided for his wife and children;

18. Defendant served in the United States Navy;

19. Defendant attended Bucks County Community College;

20. Defendant shared a positive relationship with his wife and children;

21. Defendant had been a model prisoner;

22. Defendant had led a crime-free and productive existence for the first 26 years of his life;

23. Defendant had been generous to those less fortunate than himself;

24. Defendant was under the influence of mental and emotional pressure at the time the crime was committed;

25. Defendant was suffering from impaired mental capacity at the time the crime was committed;

26. Defendant was a loving father;

27. Defendant's execution would be a hardship to his family;

28. Defendant's execution would be a hardship to his 5 year old daughter, Danielle;

29. Defendant's execution would be a hardship to his 3 year old son, Jay;

30. Defendant had the love and support of his family;

31. Defendant had sincere and heartfelt remorse;

32. Defendant offered the State to plead guilty in exchange for a life sentence;

33. Any other mitigating evidence presented at the trial.

Numerous motions were made before the penalty phase of the trial began on November 14, 1994. On September 13, 1994, the trial court granted defendant's motion to expand the allotted peremptory challenges, providing him with five additional challenges and the State with three. The trial court denied defendant's request to establish the "likelihood that defendant would die in prison" as an additional mitigating factor under the catch-all factor. The court granted the State's motion to strike mitigating factors twenty-seven through thirty as irrelevant. However, the court later reversed its ruling on mitigating factor thirty.

A separate penalty-phase determined whether defendant deserved to die. The aggravating factors offered by the State were: (1) evidence of a prior murder, (2) murder during the course of a robbery, and (3) murder to avoid apprehension.

At the penalty phase, the State called many of the same witnesses that appeared at the guilt phase including Gunnar Marsh (Gary's father), Dr. Ahmad, David Paddock, Edward Peterson, Officer Mosner, Detective Burns, Officer Burnett, and Trooper Deady, all of whom testified in a manner consistent with the evidence adduced at the guilt phase. Gunner Marsh added, however, that Gary did not know defendant, nor did he own or carry a handgun. Detective Burns indicated that a mask had been found in defendant's car. Dr. Charles Martinson, the State's expert, testified that defendant indicated that he had been wearing the mask during the robbery. As at the guilt phase, the Sears surveillance videotape was shown to the jury.

With respect to the prior murder aggravating factor, the parties stipulated that defendant had been convicted of the March 28, 1992 murder of Sophia Fetter, by a single gunshot wound to the head. Ms. Fetter was sixty-nine years old and a total stranger to defendant. While the court instructed the jury that defendant received thirty years without parole on the Atlantic County sentence, the defense was not permitted to submit to the jury, in mitigation of punishment, that a second life sentence imposed as a result of the Marsh murder would result in defendant's likely dying in prison.

In mitigation, defendant called Charles Jurman, his attorney at the Fetter murder trial. Jurman testified about defendant's willingness to accept the Mercer County Prosecutor's Office tentative plea offer of consecutive life sentences in exchange for defendant pleading guilty to both Fetter and Marsh murders. Jurman, however, acknowledged that the State had never formalized that offer. Jurman also testified that defendant had no prior criminal record, aside from the Atlantic County murder, the Mercer County murder, and the related credit-card offenses in Pennsylvania. He also stated that defendant was not a drug user, alcoholic, or compulsive gambler. Over the defense's objection, Jurman testified that his investigation for and experience in representing defendant failed to reveal that defendant suffered from any mental disease or defect that could be raised as a defense to the prosecution of the Atlantic County murder.

Next, Jennifer Blumberg, a penal counselor at the Mercer County Detention Center, testified that no "major" disciplinary actions had been brought against defendant and that he was a "model inmate."

Defendant did not testify, but told the story of his life primarily through Carmeta Albarus, an expert in conducting psychosocial histories, Dr. Dougherty, a defense psychologist, and a few close family members.

Albarus constructed a social history of defendant by engaging in repeated interviews with him, his family members, and with other significant people in his life. Albarus also personally reviewed institutional records on defendant such as his school, Navy, and employment records. The goal of her investigation was to explore patterns of behavior in the family system in order to help her draw Conclusions about defendant. On cross-examination, the State brought out that Albarus was not a psychiatrist, psychologist, social worker, or attorney. She also acknowledged that all of her prior appearances in capital cases had been on behalf of defendants.

Albarus testified that defendant was one of seven children born to Fred and Ellen Loftin. Fred Loftin was the more nurturing parent, but a poor provider. When Donald was five, Fred Loftin suddenly disappeared. Mrs. Loftin was left pregnant, with seven children, and a great amount of debt.

Mrs. Loftin worked constantly and extremely hard to keep her children dressed, fed, and educated. Albarus testified that the strain of being the sole provider meant Mrs. Loftin was rarely home, and that she had little ability to nurture the children at home. Albarus believed that Mrs. Loftin was never able to relate to her children in a warm or maternal manner because she came from a dysfunctional and abusive upbringing and dealt with extraordinary stresses.

In the year following Fred Loftin's abandonment of his family, conditions deteriorated. Defendant, at six years old, set his mattress on fire and as a result the family home burned to the ground. The Loftins, already on public assistance, were moved to a one bedroom hotel room. Though only planning to stay for a brief period, the Loftins actually remained for an extended period. Defendant never received counseling to explore why he acted out in this manner or to help him with the guilt and trauma of causing such a significant event.

Albarus related that Fred Loftin did attempt to resurface in the children's lives on two separate occasions. In the first instance, when defendant was approximately eleven or twelve, Fred Loftin called his family and invited his children to visit him in Denver, Colorado. Defendant was the only child that refused to meet his father. In the second instance, Fred Loftin came home to visit. Although the transcript is unclear, it appears that defendant was in his early twenties when his father returned. At that time, defendant did confront his father, demanding an answer to why he had left the family. Defendant received no explanation, and never fully resolved the issue. Although Albarus testified on direct that defendant's father's departure "traumatized" defendant, she acknowledged that a report prepared by Dr. Ryno Jackson, a defense-retained psychiatrist, concluded that "Donald does not recall having any feeling regarding his father's leaving."

According to Albarus, defendant was always struggling to "do the right thing" and be the "perfect son." Even when younger, he seemed to want to take responsibility for his mother. Although defendant did drop out of school during a brief stint of marijuana use in his early teens, he soon found a flyer advertising the road to salvation through Jesus. Defendant chose to pursue that avenue. Returning to school, defendant completed his G.E.D. The testimony adduced at trial indicates that defendant actually expended significant time and effort trying to help his siblings get on or stay on the right path.

When defendant was twenty-years old, he married Dorothy McMillan. According to Albarus, as a result of Ellen Loftin's strong disapproval, defendant felt compelled to abandon his first family in order to remain loyal to his new family. The separation was most painful when Donald and Dorothy's first son was stillborn and Mrs. Loftin did not attend the funeral.

Defendant and Dorothy had a conflict-filled relationship, although the extent to which the conflicts manifested themselves in various forms of domestic violence was disputed at trial. The conflicts seemed to have several roots. First, defendant and Dorothy each had their own, rather uncompromising, visions of the proper role for a wife. Defendant's vision was far more conservative. Conflicts in the marriage also seem to have been rooted in, or exacerbated by, defendant's inability to achieve the success he desired. Defense experts suggested that Donald wanted to be the provider that his father was not. Defendant went through a number of careers, never attaining the goals to which he aspired. Defendant moved himself and his family to Denver. He eventually joined the Navy and was fairly successful. Within a year, he was assigned to ship duty. Unable to stand the idea of separation and survival in a new place with their young daughter, Dorothy Loftin attempted suicide on the day that defendant was scheduled to sail. He then obtained a general discharge to attend to his wife.

After his discharge from the Navy, defendant sent Dorothy home to her family in Pennsylvania. Eventually, however, defendant did return home to live with Dorothy's family and work with his father-in-law. Defendant then decided to return to auto-mechanic school. While successfully completing his training at Lincoln Institute, defendant never obtained a job as a mechanic. Rather, he was able only to find work washing cars. Ultimately he and his wife each decided to return to school at Bucks County Community College. Dorothy Loftin did very well at college, but defendant was not performing on a passing level. He refused to seek counseling for his grades or to handle the depression and frustration resulting from his performance.

Although the conflicts can be identified with some certainty, how these conflicts manifested themselves within the relationship is less clear. Probation Officer Daria Christie, the Atlantic County case supervisor who prepared the presentence report following defendant's conviction for the Fetter murder, testified that in a phone interview Dorothy Loftin indicated that she was unhappy in the marriage, that defendant was "very spiteful", and that defendant "frequently abused" her and the children. Rather than taking responsibility for his actions, Dorothy Loftin reportedly said that defendant shifted the blame. Christie also testified that Dorothy Loftin refrained from calling the police because she was fearful of defendant. Dorothy Loftin also allegedly reported that defendant was mentally abusive.

When questioned on direct and cross-examination, however, Dorothy Loftin denied ever stating that defendant "abused" her or the children. Although Mrs. Loftin acknowledged that defendant hit her on one occasion, she testified that she did not call the police because she had no bruises and did not see a need to call; she denied that she feared reprisal if she called.

Both the defense and the State presented testimony of psychologists who evaluated defendant's mental health. Dr. Edward J. Dougherty, a defense psychology expert, concluded that defendant's aberrant behavior was consistent with the fact that he suffered from "borderline personality disorder." On direct examination, Dr. Dougherty explained that the disorder manifests as

a pervasive pattern of instability of personal relationships. Self-image sometimes marked passivity. [sic] Begins in early adulthood and appears in various ways. It takes a long to develop. It is a very serious personality disorder.

A person is believed to suffer this disorder if he or she satisfies five out of nine criteria set forth in the American Psychiatric Association's Diagnostic and Statistical Manual (DSM-IV). Dr. Dougherty testified that defendant met six or seven of the nine criteria.

He demonstrated: (1) frantic efforts to avoid real or imagined abandonment . . . (2) a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation (overridealization of his wife and mother); (3) identity disturbance: markedly and persistently unstable self-image or sense of self; (6) affective instability due to a marked reactivity of mood . . . (7) chronic feelings of emptiness . . . (8) inappropriate, intense anger or difficulty controlling anger . . . and (9) transient, stress-related paranoid ideation or severe dissociative symptoms.

Dr. Dougherty further opined that defendant was experiencing moderate to severe symptoms when he committed the offenses. Dougherty based this Conclusion on the degree of stress that defendant was laboring under at the time. Unlike the structured environments that defendant had experienced in the Navy, auto-mechanic school, or prison, defendant was struggling through a period where he did not have structure or stability. He was failing objectively -- in school, in his relationship with his wife, in his employment endeavors -- yet fighting to maintain the image he hoped to achieve by putting on the appearance of success. Dr. Dougherty explained that

Donald Loftin sees the world in black and white . . . no grey areas. This is how he Judges people and life. And when he doesn't see, when he starts being faced with the reality of the world, there are gray areas in everything, he can't handle it. Dealing with people, dealing with jobs, dealing with identity.

The defense also called numerous family members who corroborated much of the factual background information provided by Albarus, described their relationships with defendant, and begged the jury to spare his life. Some of the family members who testified included defendant's wife, parents, sisters, twin brother, and his father-in-law. None of these witnesses testified that defendant was abused during his childhood, and all indicated that defendant's mother was devoted to her children.

In rebuttal, the State called Dr. Charles Martinson as its psychiatric expert. Dr. Martinson concluded that defendant did not suffer from any mental illness, disease, defect, or disorder as defined in the DSM-IV. Rather, Dr. Martinson asserted that defendant committed the murder for economic reasons. Dr. Martinson added that the only "remorse" defendant exhibited occurred when he learned that Marsh held two jobs. Defendant's responses in a "sentence completion test" administered by a defense-retained psychologist also revealed defendant's lack of remorse. For example, when asked to complete the sentence beginning "My greatest mistake was . . ." defendant wrote, "become incarcerated." "I don't know how . . ." was completed to read "I allowed myself to get into this predicament." "I feel bad when . . ." was completed with "I think about my family." "It hurts when . . ." was completed with "things I have achieved in life are taken away" and "I only wish that . . ." was completed with "racism is banished from society."

Dr. Martinson also concluded that defendant did not suffer from a borderline personality disorder when he murdered Marsh. Instead, he opined that defendant exhibited narcissistic and antisocial personality traits. On cross-examination Dr. Martinson acknowledged, however, that defendant did exhibit some signs of emotional distress.

Although defendant did not testify, he did exercise his right of allocution. See, (infra), at ___ (slip op. at ).

On December 6, 1994, the jury returned a death sentence, finding that the State has proved each of the three aggravating factors beyond a reasonable doubt. Although at least one juror had found the existence of the statutory mitigating factors, N.J.S.A. 2C:11-3c(5)(a) and N.J.S.A. 2C:11-3c(5)(c), and at least one juror had found the existence of seventeen of the proffered non-statutory mitigating factors, the jury unanimously found that the three aggravating factors outweighed those nineteen mitigating factors. The jury further found that each aggravating factor individually outweighed the mitigating factors beyond a reasonable doubt.

Defendant was sentenced to death on count I, knowing or purposeful murder. Defendant's conviction for felony murder, count II, was merged into his conviction for capital murder. Defendant was sentenced to a term of twenty years with a ten-year parole disqualifier on count III. He was sentenced to a term of five years with a two and one-half year parole disqualifier on count IV. The sentences on counts III and IV were made concurrent to count I. The sentences were run consecutive to the life sentence that defendant was serving for the Atlantic County murder conviction.

A Notice of Appeal was filed with this Court on January 11, 1995. As a result of an article appearing in The Trentonian on the day after the penalty-phase jury returned the verdict, the defense submitted and argued a motion to interview the penalty-phase jurors. That motion was denied. Defendant's motion for a limited remand was denied by this Court.

Defendant made two motions to expand the record, seeking to include the autopsy report and affidavits stating that the prosecutor failed to provide defense counsel with proper notice in advance of obtaining the Atlantic County presentence report. Both motions were granted.

II

Constitutionality of the Act

Defendant argues that the death-penalty statute violates the prohibition against cruel and unusual punishment contained in the Eighth Amendment of the federal Constitution. We have repeatedly rejected similar arguments, see, e.g., State v. Harris, 141 N.J. 525, 574 (1995); State v. Biegenwald, 126 N.J. 1, 16 (1991) (Biegenwald IV); State v. Moore, 122 N.J. 420, 486 (1991); State v. Ramseur, 106 N.J. 123, 185-97 (1987), and continue to reject them today.

III

Guilt-Phase Issues

A. Death-qualification of guilt-phase jury

In Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986), the United States Supreme Court approved of the practice of "death qualifying" jurors. "Death qualification" excludes for cause those jurors whose views "would prevent or substantially impair the performance of [their] duties." Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581, 589 (1980); see also Ross v. Oklahoma, 487 U.S. 8 1, 85-89, 10 1L. Ed. 2d 80, 108 S. Ct. 2273, ___, 101 L. Ed. 2d 80, 88-90 ( 1988)(clarifying that death-qualification entails excluding jurors who would either always oppose or always support death penalty); Ramseur, (supra) , 106 N.J. at 248-56 (requiring New Jersey trial courts to follow Adams test). To death-qualify jurors, the trial court informs them of the capital nature of the case and then questions them closely on their views of capital punishment.

Two separate juries were empaneled for the guilt and penalty phases of defendant's capital trial because one of the aggravating factors cited by the State for the penalty phase was a prior murder conviction. To avoid the "blinding impact" of the prior murder on the determination of guilt, this Court has required separate juries. Biegenwald IV, (supra) , 126 N.J. at 43-44. The penalty-phase jury was fully death qualified.

Prior to jury selection for the guilt phase, defense counsel made clear his objection to death qualification of the jurors who would determine guilt:

Judge, as I stated on the record yesterday, my position is that there should be no mention whatsoever that this is a death penalty case. I mean, as far as I'm concerned that issue is totally irrelevant as to whether this jury determines that Mr. Loftin committed the offense or not. They're determining the guilt or innocence, not death.

I agree with the State there is some impact and the impact is prejudicial. Any time you mention death penalty to jurors or prospective jurors, certain things start going on in their heads. And I think when the juror hears it's a death penalty [case, the juror might think that] this guy is guilty that's why the State is seeking the death penalty. . . .

Ultimately, the trial court agreed not to inform the jury of the potential death penalty in the case, but decided that if a juror asked about the potential sentence, the trial court would not lie; if the juror was unable to fairly and impartially decide that issue, then that juror would be removed. Defense counsel again complained:

Obviously, the only individuals that are going to say, look, your Honor, I can't sit are the individuals that are against the death penalty. . . . So what we're going to have, if we use that suggestion, Judge, is a jury packed with people pro-death penalty.

However, no juror asked about the potential sentence, and thus the guilt-phase jury deliberated without being death-qualified.

Defendant contends that the trial court's failure to sua sponte death-qualify the guilt-phase jury and inform the jurors, during voir dire and during the jury charge at the close of trial, of the potential consequences of their decision, violated his constitutional rights by "diluting the jury's responsibility for the imposition of the death penalty," constituting plain error. State v. Mejia, 141 N.J. 475, 485, 662 A.2d 308 ( 1995) (quoting State v. Bey, 112 N.J. 123, 164, 548 A.2d 887 ( 1988) (Bey II)).

In Biegenwald IV, (supra) , 126 N.J. at 44, we stated that we "most likely will require a two-jury system for all capital cases in which the State seeks to prove [the c(4)(a)] factor." In reaching that Conclusion, we recognized the differences between a jury's function in the guilt phase and in the penalty phase.

Prior-murder convictions are relevant to the determination of the appropriate sentence because the sentencing phase focuses in part on the character of the defendant. The guilt phase, however, is limited to a determination of what the defendant did. See United States v. Myers, 550 F. 2d 1036, 1044 (5th Cir. 1977) ("A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not who he is."), cert. denied, 439 U.S. 847, 99 S. Ct. 147, 58 L. Ed. 2d 149 (1978). Because of the prejudice that could be engendered by voir dire prior to the guilt phase about a defendant's other murder convictions that are not otherwise admissible as evidence during that portion of the case, see Evid. R. 55, that questioning should almost invariably come only after a jury has found a defendant death eligible. See Pinnell, (supra) , 311 Or. at 121, 806 P. 2d at 116 (finding that "objective of a bifurcated trial was thwarted" by voir dire before guilt phase that "implied that defendant had previously been convicted of other crimes").

[Id. at 44-45.]

In State v. Erazo, 126 N.J. 112, 133 (1991), we again stated our belief that "[a] separate jury [for the penalty phase] would obviate death qualification of the guilt-phase jury." In Mejia, (supra) , however, we held that trial courts in capital cases "must inform juries of the legal effect of their findings." 141 N.J. at 485. Both Mejia and Bey II involved one jury for both the guilt and penalty phase hearings and neither involved the prejudicial impact of factor c(4)(a) on a defendant.

That knowledge of a defendant's prior conviction would have a "blinding impact" on a defendant's subsequent conviction is undisputed. Biegenwald IV, (supra) , 126 N.J. at 43-43. Moreover, defense counsel asserts, as have defense counsel in other cases, that death-qualifying a jury prior to the guilt phase produces conviction-prone juries. See, e.g., Lockhart, (supra) , 476 U.S. at 173, 106 S. Ct. at 1764, 90 L. Ed. 2d at 147 (discussing studies that purported to prove that "'death qualification' in fact produces juries somewhat more 'conviction-prone' than 'non-death qualified' juries"). Whether defense counsel is correct that death qualification results in death-prone juries is a debatable issue that we need not decide in this case.

Even in death-penalty cases, we have held that "except in the most extreme cases, strategic decisions made by defense counsel will not present grounds for reversal on appeal." State v. Marshall, 123 N.J. 1, 93, 586 A.2d 85 ( 199 1) (Marshall I). Thus, in Marshall I, (supra) , we found no error when the court conducted a limited death qualification at voir dire pursuant to defense counsel's request. Ibid. Therefore, if defense counsel objects to the death-qualification of the guilt-phase jury in a case involving aggravating factor c(4)(a), a trial court shall deem such an objection to be a waiver of defendant's right to a death-qualified jury in the guilt-phase. However, in the absence of any such objection, trial courts will give guilt-phase jurors a severely restricted death qualification, specifically not informing them of defendant's prior conviction for murder. That result presents a proper balance between the concerns expressed by defense counsel that a death-qualified jury is more prone to convict and the Court's holding that jurors should be told "of the legal effects of their findings." Mejia, (supra) , 141 N.J. at 485 (quoting Bey II, (supra) , 112 N.J. at 164-65).

Because defense counsel made a strategic decision that a death-qualified jury might be more prone to convict and objected to the death-qualification of guilt-phase jurors, his decision does not provide grounds for a finding of plain error.

B. Voir Dire

1. Individualized voir dire

During the guilt phase, without objection, the trial court conducted an in banc voir dire of the jury. Sixteen prospective jurors from the entire venire were called for questioning and told to provide responses to any question that applied to them. The court instructed the remaining venire to "listen very carefully to all of the court's remarks and questions. In the event that one or any of these persons are excused, then it's going to be necessary to replace them with someone from the courtroom. Rather than repeat all of the questions . . . I'm simply going to ask you if you've heard everything . . . and whether or not you have any responses." The court further repeatedly instructed the jurors that, if they felt uncomfortable responding to any question, they could wait for a few more questions and then raise their hands and seek a sidebar meeting to discuss the issue on a more private level.

The court then read the entire indictment. It asked whether the jurors knew anything about the case. The trial court next described the location where the crime took place, and asked if anyone was familiar with that location. The trial court again questioned all jurors furnishing affirmative responses and asked counsel whether additional questioning was needed.

The next day the court continued voir dire and employed the same procedure, again encouraging jurors to approach the court at sidebar to discuss sensitive issues. The court listed all potential witnesses and individuals whose names were likely to be mentioned during trial, asking whether any juror knew any of them. Given that many witnesses would be law enforcement officers, the court asked whether any juror would be inclined to give more or less weight to their testimony. The trial court also inquired whether any juror, their family, or close friends had ever been employed by the Mercer County Prosecutor's Office or any other law enforcement agency; whether they had been victims of a crime; had ever been accused of a crime; whether they had prior service on a grand or petit jury, and, to those who acknowledged prior civil jury service, explained the differing burdens involved in civil and criminal actions. If a juror responded affirmatively to any of these questions, the court questioned that juror more specifically.

Each juror was then required to provide pedigree information such as name, residence, marital status, and occupations of themselves and their spouses. For every juror, the court turned to counsel and asked whether they had "any additional questions or applications" and, at the end, asked counsel if they desired additional sidebar. To each request, counsel responded negatively.

R. 1:8-3(a) provides that "the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. . . . At trials of crimes punishable by death, the examination shall be made of each juror individually, as his name is drawn, and under oath." Defendant contends that the in banc voir dire violated both the requirement of R. 1:8-3(a) and also failed to provide the "heightened" need for juror impartiality in capital cases (citing State v. Williams, 93 N.J. 39, 6 1, 459 A.2d 64 1( 1983) (Williams I)).

An individualized voir dire is required in capital cases pursuant to R. 1:8-3(a) for two reasons. One purpose is to ascertain "whether [the juror's opinion regarding capital punishment] disables him from discharging the statutory duty to decide what the punishment should be." State v. Mathis, 52 N.J. 238, 245, 245 A.2d 20 ( 1968)(emphasis added), rev'd in part on other grounds, 403 U.S. 946, 9 1S. Ct. 2277, 29 L. Ed. 2d 855 (1971); see also State v. Williams, 113 N.J. 393, 413, 550 A.2d 1172 (1988) (Williams II)(viewing extensive voir dire as necessary to death-qualify the jury). The second purpose behind the individualized voir dire is to ensure that attorneys are more informed and better able to exercise their challenges in order to ensure an impartial jury. Ibid. While an in banc voir dire is ordinarily deemed adequate to ensure an impartial jury, we insist on an individualized voir dire for capital cases "because of the range of discretion entrusted to a jury in a capital sentencing hearing." Turner v. Murray, 476 U.S. 28, 35, 106 S. Ct. 1683, ____, 90 L. Ed. 2d 27, 35 (1986)(affirming conviction but reversing sentence due to failure to conduct voir dire adequate for sentencing jury). Because juries have so much more discretion, there is a greater need to screen out those jurors who cannot be impartial.

We find no error in the trial court's decision to conduct an in banc voir dire. In State v. Manley, 54 N.J. 259, 282-83, 255 A.2d 193 (1969), the Court set forth the reasons for the adoption of R. 1:8-3(a) and its belief that the in banc procedure would provide an impartial jury. The purposes behind an individualized voir dire are unique to the sentencing phase. The guilt-phase jury in this case was not determining the sentence, and thus was not deciding a case in which death could be the punishment. Therefore, R. 1:8-3(a) does not require an individualized voir dire. *fn1

Moreover, defendant's claim that an individualized rather than an in banc proceeding would have led to more candid responses by jurors is unsupported by the evidence. There is no indication in the record that the prospective jurors were not fully candid with the court or would have been more candid if they were asked the questions in an individualized voir dire. Defendant points to jurors who failed to disclose criminal backgrounds; however, those jurors were all questioned at sidebar, in an individualized manner, yet still failed to disclose the information. Because all the examples cited by defendant occurred initially at sidebar when a new panelist replaced a prospective juror struck by a preemptory challenge, defendant's assertion that prospective jurors kept silent for fear of other people learning their secrets is unfounded.

Although no voir dire is perfect, State v. Martini, 131 N.J. 176, 217 (1993) (Martini I), we are satisfied that this voir dire was sufficient to secure an impartial jury in the guilt phase. The trial court's voir dire was thorough and probing. After eight peremptory challenges by the defense and seven by the State, ...


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