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State v. Chew

June 26, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN CHEW, DEFENDANT-APPELLANT.



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

The opinion of the Court was delivered by O'hern, J. Chief Justice Poritz And Justices Pollock, Garibaldi, and Coleman join in Justice O'HERN's opinion. Justice Handler has filed a separate Dissenting opinion. Justice Stein, Concurring and Dissenting, joins in the majority opinion insofar as it affirms defendant's convictions and join in Part I.a. of Justice HANDLER's Dissent.

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. John Chew (A-77-96)

Argued October 22, 1996 -- Decided June 26, 1997

O'Hern, J., writing for a majority of the Court.

This is a capital murder case. Police found the body of Theresa Bowman in the driver's seat of a Corvette parked in the rear of the parking lot of the Woodbridge Hilton at approximately 9:00 a.m. on January 13, 1993. Ms. Bowman's throat had been slashed. She had been dead for about ten hours.

The Corvette was registered to defendant. Defendant had been living with Ms. Bowman since 1989 in Mystic Island. Police interviewed defendant at his residence the following afternoon. Defendant admitted to seeing Ms. Bowman the prior evening, but stated that Ms. Bowman had dropped him off at the home of defendant's sister and had driven off alone in the Corvette. Defendant claimed that his sister drove him home later that evening. Defendant's sister and her roommate gave statements that were consistent with defendant's statement.

Police then learned that defendant was the beneficiary of a $250,000 insurance policy on Ms. Bowman's life. Two witnesses, one defendant's former employee and the other defendant's son, told police that defendant had previously expressed an intent to kill Ms. Bowman to secure the proceeds of the insurance policy. Another witness testified that he and Ms. Bowman had been having an affair since late 1992, and that Ms. Bowman planned to leave defendant on January 13, 1993.

After receiving this information, police arrested defendant at his residence on the morning of January 23, 1993. Defendant asked the police to bring his medicine for his bad back. Defendant also requested his mother to call his attorney as he was leaving.

Defendant gave a taped statement to police at 10:53 a.m. In the statement, defendant placed himself at the murder scene and acknowledged that his sister and her roommate had driven him home. Shortly afterward, while still undergoing interrogation, defendant asked for permission to call his attorney. Defendant's attempts to reach his attorney were not successful, but all questioning ceased.

Defendant's sister and roommate were questioned by other investigators at approximately the same time. They admitted that they had fabricated their prior story exculpating defendant. They told police that after receiving a call from defendant, they had picked him up at the Woodbridge Hilton at approximately 9:20 p.m. on the night of the murder. When they arrived at the Hilton, defendant jumped out of his Corvette and got into his sister's car. Defendant's clothes were bloody. Defendant changed his clothes while they were driving away and discarded the bloody clothes in a dumpster.

After asking to call his attorney, defendant was handcuffed to a cushioned chair instead of being placed in a cell, allegedly because of defendant's back pain and because police were afraid he might be suicidal. At 4:00 p.m., defendant was formally charged with murder. He complained, again, about back pain, and was given medication.

At 6:00 p.m., defendant asked to speak with the lead detective. Defendant was crying when the detective entered the room, and initiated conversation about the potential penalties he faced. Police administered Miranda warnings again. Defendant then gave a statement indicating that he and Ms. Bowman went to the Woodbridge Hilton to sell a kilo of cocaine. Defendant said he left the car and permitted Ms. Bowman to conduct the deal, since the buyer was Ms. Bowman's contact. When defendant returned to the car some 45 minutes later, Ms. Bowman stated that she had been "ripped off" by the buyer. Defendant and Ms. Bowman argued. Defendant stated that when Ms. Bowman told him she was sleeping with another man he "went off" on her. Defendant said he was very frightened because there was "blood all over." He further stated that he did not remember stabbing Ms. Bowman or committing the murder.

Defendant was indicted for purposeful or knowing murder by his own conduct and other charges. He was served notice of an aggravating factor that made him eligible for a death sentence -- because he killed Ms. Bowman "as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value." N.J.S.A. 2C:11-3c(4)(d).

Defendant moved to dismiss the aggravating factor, arguing that the (4)(d) factor required a contract to kill and did not include murder for the purpose of securing the proceeds of an insurance policy. The trial court denied defendant's motion, filing a published opinion. State v. Chew, 278 N.J. Super. 391, 651 A.2d 124 (Law Div. 1994). Defendant then moved to suppress all of the statements he made on the day of his arrest. The trial court granted the motion in part and denied it in part. The court found that defendant's first custodial statement was obtained in violation of his right to counsel. It also found, however, that defendant voluntarily initiated contact before making the evening statement and therefore voluntarily waived his right to silence and counsel as to that statement.

On June 13, 1995, the jury found defendant guilty of purposeful or knowing murder by his own conduct and weapons offenses. It also found the existence of the (4)(d) aggravating factor, murder for pecuniary gain, as well as the catch-all mitigating factor. The jury unanimously found beyond a reasonable doubt that the single aggravating factor outweighed the mitigating factors, and sentenced defendant to death. Defendant appealed to this Court as of right. The State was permitted to cross-appeal on certain evidentiary rulings.

HELD : Defendant's death sentence is affirmed. The (4)(d) aggravating factor includes killing to obtain insurance proceeds. After defendant invoked his right to remain silent and have the assistance of counsel, he voluntarily initiated further conversation with police and waived the protections of the Fifth Amendment. The trial court correctly charged the jury that in order to convict defendant of capital murder it must unanimously agree that defendant had committed the murder by his own conduct.

1. The plain language and the history of the (4)(d) aggravating factor indicate an intent to apply the factor to murders other than murders for hire. Almost every jurisdiction that has considered a broadly-worded pecuniary gain aggravating factor has applied the factor to killings to collect insurance proceeds. The factor is limited, however, to a killing that is an essential prerequisite to the receipt of the pecuniary gain and does not apply to a killing that merely results in pecuniary gain. (pp.14-24).

2. Defendant initiated the evening Discussion with police after invoking his right to silence and counsel. Given the totality of the circumstances, the State has shown that defendant's waiver at this time was knowing, intelligent and voluntary. Further, the evening statement was not tainted by the one obtained earlier in the day, which the trial court properly found to be inadmissible. (pp. 24-40).

3. Defendant argues that the trial court erred in not including elements of an accomplice instruction in its charge that the jury must find that defendant committed the murder by his own conduct. Defendant claims that such a charge was necessary because some evidence indicated that defendant might have been involved in the murder, but did not himself commit it. Defendant's trial counsel would not, however, permit the trial court to charge the jury on accomplice liability in the guilt phase, since to do so might have exposed defendant to a guilty verdict as an accomplice. In any event, only the most generous interpretation of this record would provide a rational basis for an accomplice charge. The Court is satisfied that defendant suffered no prejudice due to the failure to instruct on accomplice liability. (pp. 41-50).

4. None of the other errors claimed by defendant warrant reversal. (pp. 50-66).

Defendant's murder conviction and death sentence are AFFIRMED.

JUSTICE HANDLER, Dissenting, in which JUSTICE STEIN joins, in part, is of the view that the (4)(d) aggravating factor applies only to one who is hired to kill. In addition, Justice Handler finds that the trial court's charge on the (4)(d) factor failed to explain the limitations that the majority itself engrafts on it. He also believes that defendant was entitled to a definition of the term "accomplice" in the court's charge on the element of "own conduct;" and that the admission of certain witnesses' prior consistent statements was reversible error.

CHIEF JUSTICE PORITZ AND JUSTICES POLLOCK, GARIBALDI, and COLEMAN join in JUSTICE O'HERN's opinion. JUSTICE HANDLER has filed a separate Dissenting opinion. JUSTICE STEIN, Concurring and Dissenting, joins in the majority opinion insofar as it affirms defendant's convictions and join in Part I.A. of JUSTICE HANDLER's Dissent.

The opinion of the Court was delivered by

O'HERN, J.

This is a capital murder case. A jury has found defendant John Chew guilty of murdering his former companion in order to obtain insurance proceeds on her life. Major issues raised in his appeal are: (1) whether the statutory aggravating factor, N.J.S.A. 2C:11-3c(4)(d), which makes death-eligible a "murder as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value," only covers contract killings and not killings to obtain insurance proceeds; (2) whether statements taken by police after defendant had asked for an attorney were admitted in violation of his constitutional rights; and (3) whether defendant was denied his fair-trial right to have the jury consider the non-capital verdict of murder as an accomplice. In addition, defendant asserts that various other trial errors require reversal of his conviction.

We find (1) that N.J.S.A. 2C:11-3c(4)(d) does cover a killing to obtain insurance proceeds; (2) that after defendant had invoked his right to remain silent and to have the assistance of counsel, he voluntarily initiated further conversation with police and waived the protections of the Fifth Amendment and the state privilege against self-incrimination; and (3) that the court correctly charged the jury that in order to convict defendant of capital murder it must unanimously agree that defendant alone had committed the murder by his own conduct. No other trial errors taint the verdict, and we affirm the conviction of capital murder and the sentence of death. We will conduct proportionality review of defendant's sentence in later proceedings.

I

At approximately 9:00 a.m. on January 13, 1993, police found the body of Theresa Bowman in the driver's seat of a Corvette parked in the rear of the parking lot of the Woodbridge Hilton. Ms. Bowman had been dead approximately ten hours. Her throat had been slashed. Found with the body was a piece of paper with a Newark beeper number and the name "Joe Martin" written on it.

The Corvette was registered to John Chew of Mystic Isle. The police contacted Chew and set up an appointment to meet at Chew's residence that afternoon. Prior to meeting with Chew, the police interviewed Alejandro Mecalco, a chef at the Woodbridge Hilton. Mecalco stated that he had seen a man "grabbing" a woman in the car. He described the man as having "a round face, dark eyes, full beard, mustache, and fine hair, well combed." A police sketch depicted this man as similar in appearance to Kenny Rogers, a contemporary recording artist. A police officer who had patrolled the Woodbridge Hilton parking lot that night stated that he saw two persons in the car, one of whom had blond hair.

When police arrived at Chew's residence at 4:10 p.m. on January 13, Chew appeared "unkempt." Chew did not have a beard and did not match the description provided by Mecalco. He was in pain and exhibited a wobbly gait. Chew told the police that he had back and foot injuries resulting from a recent fall while working as a roofer. During this meeting, the police obtained Chew's first statement. The setting was non-custodial and informal. Chew spoke with the police for approximately fifteen minutes. Chew said that he had last seen Ms. Bowman on the evening of January 12, 1993, when she left for a Woodbridge restaurant to pick up her paycheck to cover an overdrawn check that she had used to buy pain medication for Chew.

According to this first statement, both Ms. Bowman and defendant drove to the home of Chew's sister, Crystal Charette, and Theresa subsequently drove off alone in defendant's Corvette. John had loaned his second car to Crystal. Chew claimed that after Theresa left, he remained at Crystal's home with Crystal and her roommate, Helen Borden, for an hour-and-a-half before both women drove him home.

After the police left, Chew drove to Crystal's home to speak with Crystal and Helen. Chew told them that he was about to be blamed for something that he did not do. He said that a drug deal had turned bad and that he needed an alibi. He asked them to tell the police that they had visited him on the evening of January 12 and had remained at his home the entire evening. They agreed.

Shortly after midnight on January 14, 1993, Woodbridge Detective Geoffrey Kerwin, the lead investigator in the Bowman murder, interviewed Crystal and Helen at Crystal's home. At that meeting, Crystal and Helen corroborated Chew's first statement. In the early afternoon of January 14, Detective Kerwin again visited Chew to request an interview and to obtain consent to take blood samples and to search Chew's home and car. Although not in custody, Chew signed a waiver of rights prior to the interview. In a brief taped statement, Chew repeated the story he had told the police on January 13, and provided information about his relationship with Ms. Bowman. The two had met in January 1988, when Theresa was twenty-three or twenty-four, and Chew was about twelve years older. Chew then was working as a roofer installing shingling. By 1989, they were living together. At the time of the murder, the couple lived in Mystic Island.

Upon completion of the search, the investigators traveled with defendant to Crystal's home and obtained formal, taped statements from Crystal and Helen. The taped statements exculpated Chew. On January 15, 1993, the police received a number of calls suggesting a motive for the murder of Theresa Bowman: Chew was the beneficiary of a $250,000 insurance policy on Ms. Bowman's life. The first call was from the life insurance salesman who had sold a joint policy to John and Theresa in 1991.

On New Year's Eve, 1992, thirteen days before the murder, Chew stopped at the agent's home and stated that he wanted to pay December's premium in cash because his check had bounced and he did not want the policy to lapse. After calling his office and suggesting other payment options, the agent finally accepted a money order. No customer had ever before come directly to the agent's home with cash.

George Tilton, a former employee of Chew, reported that in 1991 Chew had offered him $10,000 to kill Ms. Bowman. Tilton told the police that Chew wanted the victim dead to collect the insurance proceeds. Tilton testified that Chew proposed the conspiracy repeatedly between June and November 1991.

The third caller was Chew's son, Robert Chew, who phoned the police from the Ocean County Jail, where he was serving a sentence for a number of crimes. Robert Chew claimed that in December 1991, Chew had told him about the mutual life insurance policy and about the plan to kill Ms. Bowman for the proceeds.

Randy F., a Linden mechanic, provided another piece of the puzzle. Randy F. met Theresa in November 1992, while John was in Florida. They commenced an affair and she spoke of leaving Chew. Randy F. believed that Theresa planned to leave defendant and move in with him on January 13, 1993, after Chew received money from a settlement of an unrelated lawsuit. After the settlement, Chew was to give Ms. Bowman one of his cars and $10,000. Randy F. testified that Theresa phoned him on January 12 and said that she and Chew were driving to a location on the Garden State Parkway to pick up Chew's settlement check in the amount of $28,000.

Thus, the State had a specific reason for why Chew acted and when he did: the fear that Ms. Bowman was going to leave and that Theresa might discontinue the life insurance policy. In the morning of January 23, the police left for Chew's residence to place him under arrest.

Chew's mother met the police at the door and informed them that he was sleeping. Police roused Chew and Detective Kerwin placed defendant under arrest. Chew asked the officers to bring medicine for his back pain. As defendant was leaving, in the custody of the police, he asked his mother to phone his attorney, Stephen Secare.

Another team of investigators went to defendant's sister's home. In the first of several additional statements, Crystal said that John had called her from his home on the night of the murder and asked her to pick him up from the Woodbridge Hilton later that night. Crystal said that John told her that he and Theresa were going to pick up Theresa's paycheck from her place of work, and that although defendant wanted to return immediately, Theresa intended to stay with friends.

Crystal arrived at the hotel parking lot at about 9:20 p.m. She spotted a Corvette, but she was not sure whether it was her brother's car. Crystal moved her car closer, and saw defendant get out of the Corvette. He was not injured, but there was blood on his clothes. Crystal denied having asked her brother any questions about what had happened.

Defendant removed his outer clothes, put them in a plastic bag, and instructed Helen (who had accompanied Crystal) to pour bleach into the bag. The bag and bleach were already in the car. Crystal denied seeing a knife. Defendant dumped the bag containing the bloodied clothes. Crystal told the police that after returning to Chew's home, he told her what to tell the police and threatened her to remain quiet.

Helen Borden told much the same story. She said that she heard a "scream" that she thought came from the Corvette. About a minute later, defendant came running out of the Corvette and got into the car.

Crystal, Helen, and defendant were brought to the Ocean County Prosecutor's Office. Crystal and Helen were questioned separately and defendant was placed in a different room for a polygraph (lie-detector) test. He was given medication for his back pain.

After confronting defendant with the inculpatory statements of Crystal and Helen, Detective Kerwin read defendant his Miranda warnings and began the first interrogation of the day at about 10:53 a.m. Defendant agreed to provide a taped statement, but refused to sign a Miranda card and insisted that the taped statement not discuss the murder. Defendant's taped statement merely placed him at the scene and acknowledged that his sister and Helen had driven him home from the Woodbridge Hilton that evening.

After the taped statement concluded, defendant provided the police with a more detailed version of the events. In this retelling, defendant stated that he and Ms. Bowman had gone to Woodbridge on January 12, 1993, to complete a drug deal. Ms. Bowman was to handle the deal because only she knew "Joe," the other drug dealer. Defendant stated that he had waited inside the Hilton. Defendant returned to the car and found Ms. Bowman murdered.

About 30 minutes after the morning interrogation had concluded, defendant requested and was granted permission to call his attorney, Stephen Secare. Defendant did not locate Mr. Secare, but reached only an answering machine. All questioning of defendant ceased.

Police then took defendant to the Woodbridge Police Station. Allegedly due to defendant's back condition and concern that defendant might be suicidal, Kerwin handcuffed defendant to a cushioned chair in an office rather than place him in a jail cell. At 4:00 p.m., defendant was formally charged with murder. Defendant again complained about his back pain, and was again given medication. About two hours later, defendant asked to speak with Kerwin.

Defendant was crying when Kerwin entered the room. According to Kerwin, defendant asked "what am I facing." Kerwin did not mention the death penalty, but told defendant that he might face thirty years or more in prison. Kerwin also outlined potential lesser sentences. Defendant then began to talk.

Chew again spoke of a cocaine deal, this time acknowledging that Ms. Bowman was alive when he had returned from the Hilton to the Corvette. She and defendant began to argue after Bowman claimed she was "ripped off" by the buyer. When Theresa told John she was having sex with Randy, defendant said that he "went off" on her.

Detective Kerwin stopped defendant at that point, called in another detective, readministered the Miranda warnings, and had him sign a waiver. Between 6:13 and 6:24 p.m., Kerwin obtained a second taped statement.

In this statement, defendant again acknowledged driving to the Woodbridge Hilton with Ms. Bowman on the night of January 12. He stated that the purpose of the trip was to sell a kilo of cocaine that defendant had purchased while in Florida. (Chew's brother (also named Robert Chew) later testified that while he and defendant were in Florida, defendant showed him a kilo of cocaine that defendant said he was bringing back to New Jersey to sell.) As in the earlier story, defendant did not know the prospective buyer because he was Ms. Bowman's contact.

According to defendant, while Ms. Bowman stayed in the car waiting for the buyer, defendant went to wait in the doorway of the Hilton. He never saw anyone get into the Corvette. After approximately forty-five minutes, defendant returned to the car. In this version, when defendant returned to the car, Ms. Bowman was still alive. She told defendant that the contact did meet her but "she got ripped off." The couple had an argument. Ms. Bowman hit defendant "a couple of times in [the] face" and scratched him in the chin. Defendant did not remember having stabbed Ms. Bowman.

After fighting with Ms. Bowman, defendant left his Corvette and met Crystal and Helen, who were waiting nearby in his other car. Defendant asked them to pick him up because he and Ms. Bowman were going to separate for a while after defendant gave Ms. Bowman $10,000 of the $25,000 expected proceeds from the drug deal. Defendant remembered feeling very frightened because "there was just blood all over." Defendant repeated that he did not know whether he committed the murder.

Defendant did remember changing his clothes and disposing of his bloodied clothes in a dumpster. Defendant also remembered begging his sister and Helen not to tell the police about the events of the evening. He did not recall threatening them, but acknowledged that "there's so much I don't remember."

After providing his statement, defendant was processed for transfer to the Middlesex County Adult Correction Center. While there, defendant met with two correctional officials, including a registered nurse employed by the correctional institution. Both testified for the State at the Miranda hearing that defendant did not seem to be under the influence of any drugs or undue stress, but rather appeared calm and cooperative.

A grand jury charged defendant with purposeful or knowing murder by his own conduct, possession of a weapon (a knife) for an unlawful purpose, terroristic threats, and other offenses, not relevant here, which the trial court later dismissed. The prosecutor served notice of one aggravating factor: that defendant killed Theresa Bowman as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value. N.J.S.A. 2C:11-3c(4)(d).

Defendant moved to dismiss the aggravating factor. The trial court denied defendant's motion. State v. Chew, 278 N.J. Super. 391, 651 A.2d 124 (Law Div. 1994). It ruled that the aggravating factor applies to those who kill to obtain insurance proceeds, "in light of the language of the statute, the legislative history, policy concerns, and concepts of reasonableness." Id. at 401. The trial court reasoned that consideration means "any benefit conferred, or agreed to be conferred, upon the promisor, by any other person . . . as an inducement to the promisor." Id. at 396. The court explained that

the term "as consideration for" in the first clause of subsection (d) provides a full parallel to the two-part structure of subsection (e) [the procuring factor] on its own by encompassing defendants who kill for advance payment as well as those who kill upon the promise of later payment. The second clause, "in expectation of the receipt of anything of pecuniary value," can then be read to authorize the imposition of capital punishment for other scenarios beyond that of murder for hire. The broad language, "anything of pecuniary value," certainly supports the wider interpretation to include murders committed for the purpose of obtaining insurance benefits.

[ Id. at 397.]

The Appellate Division denied defendant's motion for leave to appeal the denial of his motion to dismiss the aggravating factor.

Defendant also moved to suppress his statements to the police. Following a Miranda hearing, the court granted in part and denied in part defendant's motion to suppress. The court found that defendant's first custodial statement at 10:53 a.m. on the day of the arrest had been obtained in violation of his Fifth Amendment right to counsel and should be suppressed at trial. But the court found that defendant voluntarily had initiated the second custodial statement, made after 6:00 p.m., and that the second statement was sufficiently removed from the first so as to be admissible against defendant at trial.

On June 13, 1995, the jury returned a verdict of guilty on the two remaining counts: purposeful or knowing murder by defendant's own conduct, in violation of N.J.S.A. 2C:11-3a(1) or (2), and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d.

The penalty-phase trial took place between June 19 and June 22, 1995. The State did not present any new evidence, but the defense called eight witnesses. A member of the parole board testified that the alternative sentence for murder was thirty years imprisonment. A forensic social worker interviewed family members and reviewed family records. She described a family history of beatings, drinking binges, abuse, unfaithfulness, and lack of love or encouragement. Defendant's mother and sister testified similarly.

Defendant's eleven-year-old daughter Valerie spoke of her love for her father and of her contacts with him. A family therapist concluded that Valerie's continued contacts with her father would have a positive effect and that the two of them enjoyed a positive relationship. Defendant gave an allocution in which he sought mercy for the sake of his daughter.

The jury unanimously and beyond a reasonable doubt found defendant guilty of murder in expectation of the receipt of anything of pecuniary value. The jury also found the existence of the catch-all mitigating factor, N.J.S.A. 2C:11-3c(5)(h), and credited each of ten mitigating factors raised by defendant. The jury unanimously and beyond a reasonable doubt found that the single aggravating factor outweighed all of the mitigating factors found.

The jury returned a death penalty verdict and the court sentenced defendant to death. It merged the weapons conviction with the murder conviction. Defendant appealed directly to this Court as of right. R. 2:2-1(a)(3). We allowed the State to file a cross-appeal of certain evidentiary rulings. Defendant did not file a reply brief.

II

Is a killing committed for the purpose of obtaining insurance proceeds a killing "as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value"?

The statutory aggravating factors in our capital-sentencing scheme narrow the class of death-eligible murderers and guide the jury's discretion in determining the appropriateness of a death sentence. State v. Ramseur, 106 N.J. 123, 185-86, 524 A.2d 188 (1987). New Jersey's Capital Punishment Act (the Act) contains eleven aggravating factors that make a murder eligible for sentence of death. Among them are N.J.S.A. 2C:11-3c(4)(d), the "pecuniary gain" factor, and 2C:11-3c(4)(e), the "procuring" factor. *fn1 Familiar examples of the two factors are found in State v. DiFrisco, 137 N.J. 434, 645 A.2d 734 (1994) (DiFrisco II), cert. denied, __ U.S. __, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996), the contract killer, and State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991) (Marshall I), the hiring of a killer.

Among other jurisdictions, killing for pecuniary gain is the most frequently employed statutory aggravating factor. Raymond J. Pascucci, Capital Punishment in 1984: Abandoning the Pursuit of Fairness and Consistency, 69 Cornell L. Rev. 1129, 1227 (1984). When, in 1982, the New Jersey Legislature debated the adoption of the Act, many other jurisdictions had already defined the special circumstance or aggravating factor of murder for financial gain as establishing death eligibility. In 1978, a California voters' initiative amended a special circumstance that had been limited to hired guns to create death eligibility when "the murder was intentional and carried out for financial gain." People v. Bigelow, 37 Cal. 3d 731, 691 P. 2d 994, 1005, 209 Cal. Rptr. 328 (Cal. 1984). The Bigelow court had no legislative history to guide it in the construction of the financial-gain special circumstance. Concerned that the new language would create an overlap between the financial-gain special circumstance and that of felony murder (since most robberies, burglaries, and kidnappings are committed for financial gain), the court reviewed decisions elsewhere. It observed that Nebraska had construed an aggravating factor of murder for pecuniary gain to apply:

(1) to the hired gun, (2) to the hirers of the gun, and (3) to murder motivated primarily by a desire for pecuniary gain as in the case of a murder of an insured by the beneficiary of a life insurance policy for the purpose of obtaining the proceeds, or the murder of a testator of a legatee or devisee to secure a legacy or a devise.

[Id. at 1006 (citing State v. Rust, 197 Neb. 528, 250 N.W. 2d 867, 874 (Neb.), cert. denied, 434 U.S. 912, 98 S. Ct. 313, 54 L. Ed. 2d 198 (1977)).]

The California court adopted a narrowing construction to avoid overlap with the other felony murder factors and held that "the financial gain special circumstance applies only when the victim's death is the consideration for, or an essential prerequisite to the financial gain sought by the defendant." Ibid.

Of course, an aggravating factor can be drafted to cover only the hired gun or the one who procures the hired gun. *fn2 For example, Pennsylvania's death-penalty statute recognizes the aggravating factor of "killing for hire" only when "[the] defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim." 42 Pa. Cons. Stat. Ann. § 9711(d)(2) (1996); Commonwealth v. Burgos, 530 Pa. 473, 610 A.2d 11 (Pa. 1992). But almost every jurisdiction that has considered a broadly-worded pecuniary gain factor has applied the factor to killings to collect insurance proceeds.

Arizona law contains the identical language of the New Jersey aggravating factor. Ariz. Rev. Stat. § 13-703(F)(5) (1996) (making death-eligible a killing "as consideration for the receipt, or in expectation of the receipt, of something of pecuniary value"). Arizona allows the "pecuniary gain" factor when

hope of pecuniary gain . . . provides the impetus for the murder. For example, if a beneficiary killed an insured in order to gain the proceeds of a life insurance policy this aggravating circumstance would be satisfied. On the other hand, an unexpected or accidental death that was not in furtherance of the defendant's goal of pecuniary gain, which occurs during the course of or flight from a robbery, does not in itself provide a sufficient basis for finding the same aggravating circumstance. The aggravating circumstance [where the defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value] should be found only in those cases where the murder is part of the defendant's overall goal of pecuniary gain, not merely when a death occurs during which time the defendant benefitted financially.

[ State v. Nash, 143 Ariz. 392, 694 P. 2d 222, 235 (Ariz.), cert. denied, 471 U.S. 1143, 105 S. Ct. 2689, 86 L. Ed. 2d 706 (1985).]

As early as 1980, Arizona had found that a killing for the purpose of obtaining insurance would satisfy the aggravating circumstance, although the court did not find sufficient evidence in the case to satisfy the factor. State v. Madsen, 125 Ariz. 346, 609 P. 2d 1046 (Ariz.) (en banc), cert. denied, 449 U.S. 873, 101 S. Ct. 213, 66 L. Ed. 2d 93 (1980).

Florida has concluded that its special circumstance of "murder for financial gain" applies when a person kills to obtain insurance proceeds. Zeigler v. State, 402 So. 2d 365 (Fla. 1981), cert. denied, 455 U.S. 1035, 102 S. Ct. 1739, 72 L. Ed. 2d 153 (1982). Delaware's death penalty statute, which was modeled after Florida's, has been interpreted in the same way. Ferguson v. State, 642 A.2d 772 (Del. 1994).

The principles were so well known that a Mississippi Judge would later write:

Anyone familiar with the evolution of the "pecuniary gain" concept in capital murder litigation around the country is aware that this aggravating circumstance was not designed for application to the armed robbery capital murder. Rather, this language contemplates the hired killing or, as it is sometimes called, the contract murder. It might also apply to a murder motivated by a desire to collect life insurance proceeds. Such an approach to [the aggravating factor] would be consistent with correct grammatical usage of the words employed and with the idea that aggravating circumstances are intended to focus the jury's attention upon aspects of a murder thought to render it a more reprehensible act than is murder per se.

[ Wiley v. State, 484 So. 2d 339, 358 (Miss.) (Robertson, J., Concurring), cert. denied, 479 U.S. 906, 107 S. Ct. 304, 93 L. Ed. 2d 278 (1986), overruled on other grounds by Willie v. State, 585 So. 2d 660 (Miss. 1991).]

Defendant insists that the plain language and legislative history of our c(4)(d) factor preclude the same interpretation here.

The argument is based on sentence structure. Because the factor describes "murder as consideration" for the receipt of anything of pecuniary value, defendant reasons that the term "consideration" applies to both clauses of the factor. From that premise, because consideration denotes a contract, he argues that the killer must have a contract for the expectation of money to become death eligible. Defendant reads factor c(4)(d) to be limited to cover an agreement to kill in consideration of (a) the receipt or (b) the expectation of receipt of anything of pecuniary value.

Even were we to agree that the word "consideration" is limited to the notion of a contract, we disagree that the sentence structure signals that the "expectation of receipt" clause depends on the word "consideration." The two clauses are distinct. There is no suggestion in the legislative history that the c(4)(d) factor is the twin of the c(4)(e) procuring factor that makes death eligible one who procures the commission of murder by the payment or promise of payment of anything of pecuniary value.

The Federal Death Penalty Act and the Federal Controlled Substance Act contain aggravating factors for determining capital punishment. See 18 U.S.C. § 3592 (c)(8); 21 U.S.C. § 848 (n) (listing aggravating factors). Both federal acts contain the identical language found in our c(4)(d) factor. In United States v. Walker, 910 F. Supp. 837 (N.D.N.Y. 1995), a defendant sought to bar the use of the pecuniary gain factor to cover a killing to obtain proceeds of a drug deal. *fn3 The court observed that the federal factor had two prongs: that the offense was committed "as consideration for the receipt" or "in expectation of the receipt" of something of pecuniary value. Id. at 848. It agreed that the use of "as consideration for" language in the first prong does contemplate murder for hire but that "to transport that restriction to the second, in expectation of the receipt prong, would render the second clause mere surplusage." Ibid.

The court also rejected the argument that by locating the pecuniary gain factor following the procuring factor in the federal statute, Congress had intended only "to identify the flip-side of procuring a murder for hire." Ibid. In short, the court concluded that nothing in the plain language of the federal statute or its history limited the factor to the case of the hired gun.

Although our statute does not sustain the breadth of the factor adopted by the Walker court, we agree that the language of the factor is not limited to the case of the hired gun. This interpretation does not mean we are creating two separate factors within one, inconsistently with the structure of the Act. Rather, there is one factor, the "pecuniary gain" factor. An Assembly version of the Act would have included the expectation of the elimination of pecuniary loss as a potential aggravating factor, suggesting that the legislators believed that the factor was not limited to the case of the hired gun. Assembly Judiciary, Law, Public Safety, and Defense Committee, Statement to Bill No. 771, at 6 (May 20, 1982). We acknowledge that Senator Russo, the principal sponsor, referred to the c(4)(d) aggravating factor as the "murder for hire" factor, but we agree with the trial court that that was only "verbal shorthand" for the most familiar application of the factor. Chew, (supra) , 278 N.J. Super. at 398, n.3. See also Senate Judiciary Committee, Capital Punishment Act: Hearings on S. 112, at 14 (Feb. 26, 1982). The New Jersey Act is a "hybrid" of the Georgia and Florida statutes. State v. Bey, 112 N.J. 123, 217, 548 A.2d 887 (1988) (Bey II) (Handler, J., Dissenting), cert. denied, U.S. , 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995). When a statute is drafted on the pattern of another jurisdiction, it is appropriate to consider interpretations in that jurisdiction. Ramseur, (supra) , 106 N.J. at 204. The drafters of c(4)(d) were presumably aware of interpretations that Florida gave to a similar factor, as well as the interpretations Arizona gave to its factor.

Consistent with interpretation elsewhere, we adopt a limiting construction of the pecuniary gain factor. Bigelow, (supra) , 691 P. 2d at 1006; Rust, (supra) , 250 N.W. 2d at 874. We believe that it would be double-counting to apply the c(4)(d) factor to a killing in the course of a robbery. See Cook v. State, 369 So. 2d 1251, 1256 (Ala. 1979). In order to satisfy New Jersey's pecuniary gain factor (outside of the hired-gun context), it must be found that the killing is the essential prerequisite to the receipt of the gain, not just a killing that results in pecuniary gain. *fn4 A killing to obtain the proceeds of a drug deal is not a fatal precondition as might be a killing to obtain an inheritance or a share under a partnership agreement. So defined, the factor provides clear guidance.

Aggravating circumstances must provide a "'meaningful basis for distinguishing the few cases in which [death] is imposed from the many cases in which it is not.'" Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 2932, 49 L. Ed. 2d 859, 883 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 2764, 33 L. Ed. 2d 346, 392 (1972) (White, J., Concurring)). In Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), the Supreme Court struck down an aggravating circumstance so vaguely worded that it failed to perform this narrowing function. See also Ramseur, (supra) , 106 N.J. at 199-200 (holding c(4)(c) factor void for vagueness unless limiting construction was given).

We find no vagueness in the factor on its face or as applied. When a court is asked to review the application of a statutory aggravating factor, it must determine whether the statutory language defining the factor is too vague to provide guidance to the sentencer. Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990). If so, the reviewing court must determine whether the sentencing court has further defined the vague terms and if it has done so, whether those definitions are constitutionally sufficient, that is, whether they provide sufficient guidance to the accused and to the sentencer.

A federal district court reviewing the Arizona factor found that "the [pecuniary gain factor] is not facially vague. The clear meaning of the words themselves provide the . . . guidance required." Woratzeck v. Lewis, 863 F. Supp. 1079, 1088 (D. Ariz. 1994), aff'd sub nom. Woratzeck v. Stewart, 97 F. 3d 329 (9th Cir. 1996), cert. denied, U.S. , 117 S. Ct. 1443, L. Ed. 2d (1997). We doubt very much that one contemplating murder would have been misled by the grammatical structure of the factor. Had anyone cared to mold conduct to avoid the imposition of a death penalty, the actor could easily have learned that other jurisdictions had already considered and rejected the argument that the clauses of the factor were conjunctive. The construction of the c(4)(d) factor adopted by the trial court provided categorical narrowing and clear guidance to the sentencer. This has been the consistent interpretation of the factor. We are informed that the State has sought to apply the c(4)(d) factor only when the killing was a fatal precondition to the receipt of pecuniary gain. See State v. Marshall, 130 N.J. 109, 175-76, 613 A.2d 1059 (1992) (Marshall II), cert. denied 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993) (discussing cases of murders for pecuniary gain, including insurance proceeds). The trial court has correctly given substance to the operative terms of the factor and we find that its construction meets constitutional requirements.

We thus agree with the reported opinion of the trial court that the c(4)(d) factor covers a killing to obtain insurance proceeds.

III

A.

Were defendant's statements admitted in violation of his constitutional rights?

In the course of investigation, the police took approximately six statements from defendant. The trial court separated the statements into three time frames: statements made prior to the arrest on January 23; statements made on January 23 at about 10:53 a.m.; and statements made on January 23 at about 6:00 p.m. *fn5 No party contests the admissibility of the statements made prior to January 23. Admission of the two statements of January 23 is contested. The State contests the trial court's finding that the 10:53 a.m. statement was inadmissible, and defendant contests the trial court's finding that the 6:00 p.m. statement was admissible. *fn6

The trial court found that defendant's request for his mother to contact his attorney, made in the course of his arrest on January 23 and in the presence of the police, was, although ambiguous, an invocation of defendant's right to counsel. Under Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), an accused cannot be subject to further interrogation unless counsel is present or the accused initiates further conversation after invoking the right to counsel. "Any indication of a desire for counsel, however ambiguous, will trigger" Edwards protection. State v. Reed, 133 N.J. 237, 253, 627 A.2d 630 (1993). Because the request was ambiguous, the court found that the police should have clarified defendant's statement to protect his right to counsel. See State v. Elmore, 205 N.J. Super. 373, 500 A.2d 1089 (App. Div. 1985) (stating, under Edwards and Miranda, that defendant's phone call to mother complaining that defendant was not allowed an attorney was sufficient invocation of right to counsel even though defendant had not requested one). Without that ...


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