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State v. Cooper

August 20, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
DAVID COOPER, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.



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

The opinion of the Court was delivered by Coleman, J. Chief Justice Poritz and Justice Garibaldi join in Justice COLEMAN's opinion. Justice Stein has filed a separate Concurring opinion. Justice Handler has filed a separate Dissenting opinion, Point I of which Justice Pollock joins, and Points I and II.A. of which Justice O'hern joins.

The opinion of the court was delivered by: Coleman

(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. David Cooper (A-99/100-96)

Argued December 3, 1996 -- Decided August 20, 1997

Coleman, J., writing for the Court.

In this appeal, defendant challenges his murder conviction and death sentence.

On July 18, 1993, the six-year-old victim, L.G., her mother, and two sisters were visiting relatives in Asbury Park. The children were playing in the fenced-in backyard. Defendant lured L.G. away from the other children and eventually picked her up, lifted her over the fence, and walked away with her. The other children went and told L.G.'s mother what had occurred. L.G.'s mother, adult relatives, and neighbors searched for L.G. and called out to her, but they could not locate her. The Asbury Park Police Department was contacted and joined in the search. Within a few hours after her disappearance, L.G.'s body was found under a porch of an abandoned house. L.G. was lying on her back on a mattress with her shirt pulled up, her panties at her ankles, a pair of men's boxer shorts over her face, and her vaginal area exposed and bloodstained. Defendant lived under that porch, and many of his personal belongings, including a wallet with his social security card, were recovered there.

Defendant became a suspect almost immediately. He was located the next day and taken to police headquarters for questioning. He was read his Miranda rights and signed a waiver form. He initially denied any involvement in the death of L.G. A detective confronted defendant with the evidence that the police had against him and told him that they would seek a court order to obtain forensic evidence from his person. No law-enforcement officer informed defendant that he was facing a potential death sentence. Instead, they told him that the perpetrator was facing a term of life imprisonment with thirty years of parole ineligibility. Defendant then confessed to causing L.G.'s death. He stated, however, that he was drunk and it was an accident. He also confessed to having had vaginal intercourse with L.G.

An autopsy revealed numerous internal injuries to L.G.'s vaginal area. She also had swelling of her neck, lungs and brain. The medical examiner concluded that the injuries to L.G.'s neck, lungs, and brain were consistent with asphyxia caused by manual strangulation. He also concluded that the pressure probably had been applied to the neck for approximately four to six minutes.

At the guilt-phase trial, the defense conceded defendant's guilt of felony murder, kidnapping, and aggravated sexual assault. It challenged the State's theory that the murder was purposeful or knowing, claiming that the killing occurred accidentally during the course of an aggravated sexual assault. In May 1995, the jury convicted defendant of kidnapping, aggravated sexual assault, felony murder, and purposeful-or-knowing murder by his own conduct.

The penalty phase was conducted before the same jury. The State relied on three aggravating factors: the murder involved depravity of mind; the murder occurred during the commission of an aggravated sexual assault or kidnapping; and the murder was committed to escape detection. The defense presented mitigating evidence about defendant's tragic childhood, which was replete with numerous foster care placements, abuse, neglect, and exposure to violence, drugs, and alcohol. The jury found that the State had proven defendant committed the murder to escape detection and in the course of committing aggravated sexual assault and kidnapping. It also found, however, that the State had failed to prove the aggravating factor of depravity. The jury found the existence of various mitigating factors, but that the two aggravating factors together outweighed the mitigating factors beyond a reasonable doubt.

After the jury was discharged, the parties discovered that a graphic photo of the wounds on L.G.'s genitalia accidentally had been submitted to the jury during the penalty phase. The trial court subsequently denied defendant's motion for a non-death verdict or a new penalty-phase trial, concluding that the submission of the photo had not prejudiced defendant because it had been admitted into evidence during the guilt phase.

HELD: Except for the aggravated-sexual-assault conviction, which must merge into the kidnapping conviction, defendant's convictions are affirmed. Defendant's death sentence is affirmed.

1. Defendant was not denied an impartial jury because a juror sought employment with the Monmouth County Prosecutor's Office shortly after the trial. After an evidentiary hearing, the trial court found that the juror had not intended to seek employment at the Prosecutor's Office until after the trial and that her obtaining employment there was "happenstance." Those findings are supported by credible evidence in the record. Absent supporting evidence, defendant's assertion that the juror had an incentive to ingratiate herself with the Prosecutor's Office by convicting and returning a death sentence is pure speculation. The same juror's failure to reveal that she had a cousin in federal prison does not warrant reversal, because defendant cannot show that he would have challenged the juror if this information was revealed. (pp. 10-16)

2. The trial court's Conclusion that defendant's confession and statements were made after a knowing and voluntary waiver of defendant's Miranda rights is supported by the record. The investigating officer's statement to defendant that the perpetrator faced life imprisonment was not entirely inaccurate. The death penalty only comes into play when the prosecutor, not police officers, charges the murder is death-eligible and gives notice of at least one aggravating factor. Although a police officer may suspect that the murder will be death-eligible, the officer has no way of knowing for sure. Moreover, the investigating officer's statement was not a promise of life imprisonment, but rather an attempt to convey the seriousness of the charges defendant was facing and the strong case the police were building against him. (pp. 18-22)

3. There was no error in the trial court's refusal to charge that the jury could find defendant guilty of the general crime of murder without being unanimous about the type of murder committed -- namely, purposeful-or-knowing murder or felony murder. Because the mens rea for purposeful-or-knowing murder is different from that required for felony murder, the Court does not believe that the Legislature intended to create a unified crime of murder. Aside from the absence of any legislative intent to create a unified crime of murder, the intermingling of death-eligible murder with non-death-eligible murder would create utter chaos when instructing a jury. Nor did the trial court's refusal to instruct the jury to consider purposeful-or-knowing murder and felony murder together contravene this Court's jurisprudence on sequential presentation of charges. There is nothing inherently wrong with a sequential charge, provided care is taken to avoid stratification of thought that would deter a jury from returning the proper available verdict.

(pp. 23-41)

4. It was not necessary that the jury be instructed during the guilt phase of defendant's potential prison sentence if he were convicted of the non-capital offenses. To the extent that prior cases may be understood to require the jury to be instructed during the guilt phase what the potential sentence is for each noncapital offense, they are overruled. An ultimate-outcome charge during the guilt phase is not required. (pp. 41-53)

5. The trial court's submission to the jury of the inconsistent aggravating factors of depravity and murder to escape detection was error. The error, however, was harmless. The trial court charged the jury that it could not find both of these factors because they were mutually exclusive, and also that it could not use evidence of depravity when considering the other aggravating factors. (pp. 56-60)

6. The trial court erred in instructing the jury it could consider evidence presented in the guilt phase, especially photographic evidence, in its deliberations during the penalty phase. Given the minimal relevance of the photos to the aggravating factors, the existence of other evidence supporting the escape detection aggravating factor, and the trial court's other instructions, the Court concludes that the photos did not cause the jury to reach a decision it would not otherwise have reached. (pp. 62-69)

7. The accidental submission to the jury during the penalty phase of a graphic photo depicting the victim lying on her stomach with her legs spread open during the autopsy did not prejudice defendant. The photo would have been admissible if offered by the State, it was reviewed by the jury during the guilt phase, and the trial court gave cautionary instructions regarding the use of graphic photos. (pp. 70-74)

8. The State does not have the burden of disproving mitigating factors after the defendant has come forth with credible evidence in mitigation. The jury has the discretion to accept or to reject mitigating evidence regardless whether the State affirmatively challenges that evidence. (pp. 75-79)

9. The Court rejects defendant's other arguments on appeal, with the exception of his claim that the aggravated-sexual-assault conviction should have merged into the kidnapping conviction. (pp. 79-92)

Defendant's convictions and capital and noncapital sentences are AFFIRMED, except for the aggravated-sexual-assault conviction, which must merge with the kidnapping conviction. The conviction and sentence for aggravated sexual assault are vacated and REMANDED for the entry of an amended judgment.

JUSTICE STEIN, Concurring, agrees with the Court's opinion, except that he is of the view that the Court no longer should adhere to prior cases that require the guilt-phase jury to be informed of a defendant's specific sentencing exposure for charged noncapital homicide offenses.

JUSTICE HANDLER, Dissenting, is of the view that in the guilt phase, the trial court effectively prevented the jury from fully understanding the consequences of the death-eligibility determination through the following errors: keeping from the jury knowledge of the sentence for felony murder while providing it with knowledge of the penalties for purposeful-or-knowing murder; failing to present the two different forms of murder in a way that would have enabled the jury to consider them in conjunction with one another; and refusing to instruct the jury that it could reach a nonunanimous, non-death-eligible murder verdict split between purposeful-or-knowing murder and felony murder. He is also of the view that errors in the penalty phase (submitting mutually exclusive aggravating factors to the jury and the accidental submission of a gruesome autopsy photograph to the jury) combined to inject a degree of arbitrariness and irrationality that no court should tolerate.

CHIEF JUSTICE PORITZ and JUSTICE GARIBALDI join in JUSTICE COLEMAN's opinion. JUSTICE STEIN has filed a separate Concurring opinion. JUSTICE HANDLER has filed a separate Dissenting opinion, Point I of which JUSTICE POLLOCK joins, and Points I and II.A. of which JUSTICE O'HERN joins.

The opinion of the Court was delivered by

COLEMAN, J.

In May 1995, a Monmouth County jury convicted defendant, David Cooper, of the kidnapping, aggravated sexual assault, felony murder, and purposeful-or-knowing murder of L.G., a six-year-old girl, by his own conduct. The same jury sentenced him to death. This is defendant's direct appeal from his conviction for capital murder and sentence of death. R. 2:2-1(a)(3). We affirm both the conviction and the sentence of death.

I

Procedural and Factual History

A Monmouth County Grand Jury indicted defendant on the following charges: purposeful-or-knowing murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count two); first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b (count three); and two counts of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1) and 2C:14-2a(3) (counts four and five alleging rape and sodomy).

The State's theory at trial was that defendant kidnapped the victim and took her underneath a porch where he raped her and then strangled her to escape detection or apprehension. An alternative theory was that defendant murdered the victim in the course of an aggravated sexual assault or kidnapping.

At trial, the defense conceded defendant's guilt of felony murder, kidnapping, and aggravated sexual assault. The defense contested, however, that the murder was purposeful or knowing. Instead, defendant contended that the killing had occurred accidentally during the course of an aggravated sexual assault. Thus, he claimed that there had been no intent to strangle the child but rather that death had been caused by unintentionally placing pressure on her carotid artery for about thirty seconds.

-A-

Guilt Phase

On July 18, 1993, the six-year-old victim, L.G., her mother, R.G., and the victim's two sisters were at the home of R.G.'s sister-in-law, M.W., in Asbury Park. While M.W. was at the supermarket, R.G. sat on the front porch of the house with her youngest daughter. The victim and her other sister were with M.W.'s daughter playing in the frontyard. After playing in the frontyard for some time, the children moved into a fenced-in backyard.

While they were playing in the backyard, defendant lured the victim away from the other children and eventually picked her up, lifted her over the fence, and walked away with her. The other children went to the frontyard and told R.G. what had occurred. R.G., joined by M.W., who had just returned from the supermarket, began to search for and to call out to L.G., but they could not locate her. Soon after, neighbors joined in the search.

The Asbury Park Police Department was contacted shortly after L.G.'s disappearance, and police officers also joined the search. Within a few hours after the victim had disappeared, her body was found under a porch of an abandoned house. Defendant lived under that porch. L.G. was found lying on her back on a mattress with her shirt pulled up, her panties at her ankles, a pair of men's boxer shorts over her face, and her vaginal area exposed and bloodstained.

The police found clothing and a bloodstained paper towel at arms's length from L.G.'s body. The police also found a gym bag that contained a wallet. Inside the wallet was defendant's social-security card. Defendant's latent fingerprints were found on a paper bag and on a malt-liquor bottle in the porch area. Several letters, photographs, and other documents in defendant's name were also found in the area.

That night, the police interviewed witnesses to the abduction, and defendant became a suspect almost immediately. Defendant was located the next day and was taken to police headquarters for questioning. The State concedes that defendant was in custody at that time. He was read his Miranda rights, and he signed a form waiving his rights to remain silent and to counsel. At that time, defendant denied any involvement in the child's death.

Soon thereafter, Detective John Musiello confronted defendant with the evidence that the police had against him and told him that they would seek a court order to obtain forensic evidence from his person. No law-enforcement officer, however, informed defendant that he was facing a potential death sentence. Instead, they told him that the perpetrator was facing a term of life imprisonment with thirty years of parole ineligibility.

Defendant then confessed to causing L.G.'s death. According to slightly varying police testimony, he dropped his head and stated either: (1) "It was an accident. I did it. I was drunk;" or (2) "It's an accident. I was drunk. I strangled her." Defendant explained that he had seen children playing at M.W.'s house on his way to the porch of the abandoned house and that he had told L.G. to come to him. He lifted her over the fence and led her underneath the porch of the abandoned house. Defendant then stated, "Then we had sex, and I strangled her" and that he had left her body underneath the porch. After further questioning, defendant admitted that he had ejaculated and that he had worn a condom which he later had discarded in a nearby field.

Defendant subsequently signed a formal written statement, in which he described the sexual penetration of L.G. as vaginal and stated that she had bled from her vagina during the penetration, causing blood to get on defendant's clothes. He also told the police that he had been on top of L.G. during the penetration and that his hands had been on her neck.

An autopsy of L.G.'s body revealed dried blood on the skin of her lower abdomen and external genitalia. Numerous internal injuries were found in her vaginal canal and cervix. Her hymen was not intact. Her anal canal also showed signs of injury. The autopsy revealed swelling in L.G.'s trachea and lungs, petechial hemorrhages on the outer surface of the thymus, and swelling in her brain.

The medical examiner concluded that the injuries on and around L.G.'s neck, the edema in her lungs, and the swelling in her brain were consistent with asphyxia caused by manual strangulation. He also concluded that pressure probably had been applied for approximately four to six minutes because, for edema to form in the lungs, pressure would have had to have been applied for three to six minutes, and for irreversible brain damage to occur from lack of oxygen, pressure would have had to have been applied for four to six minutes.

The police obtained seven discarded condoms from a field, close to the abandoned house, to which defendant had led them, and obtained from defendant samples of his hair, saliva, and blood. None of the condoms tested positive for semen, although one had blood on it. Blood was found on the paper towel discovered under the porch, on the cushion on which L.G. had been found, on two pairs of sneakers found under the porch, and on defendant's jeans, t-shirt, and boxer shorts. No semen was found on L.G.'s clothes or person. Four pubic hairs found on L.G. were consistent with defendant's pubic hair, although they could not be linked to him conclusively.

-B-

Penalty Phase

The penalty phase was conducted before the same jury. The State relied on three aggravating factors: (1) that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind, N.J.S.A. 2C:11-3c(4)(c); (2) that the murder occurred during the commission of an aggravated sexual assault or kidnapping, N.J.S.A. 2C:11-3c(4)(g); and (3) that the purpose of the murder was to escape detection or apprehension, N.J.S.A. 2C:11-3c(4)(f). Defendant's mitigating evidence was limited to his life up to the age of seventeen. The defense, under the "catch-all" mitigating factor, N.J.S.A. 2C:11-3c(5)(h), submitted eighteen mitigating circumstances related to defendant's life.

The defense presented an enormous amount of mitigating evidence about defendant's tragic childhood, which was replete with numerous foster care placements, abuse, neglect, and exposure to violence, drugs, and alcohol. Several experts testified that the lack of stability in defendant's life, his exposure to violence, and his lack of a relationship with his mother had affected him in numerous ways, such as making him aggressive and unable to empathize with others, as well as by reducing his ability to understand cause and effect. The defense also presented expert testimony that, as a result of defendant's upbringing, he was extremely emotionally disturbed and that he had not developed normally.

The State's strategy during the penalty phase was to emphasize the good aspects of defendant's childhood. The prosecutor thus elicited testimony from defendant's relatives about the positive aspects of his familial and foster-care relationships, which the prosecutor argued in summation.

The State rebutted defendant's expert mitigating evidence by presenting testimony that defendant's personality disorder was not treatable. The State's expert also testified that defendant's childhood would not prevent him from knowing the difference between right and wrong and would not make him unable to control his actions.

The jury unanimously found that the State had proven that defendant had committed the murder to escape detection, N.J.S.A. 2C:11-3c(4)(f), and that he had done so in the course of committing aggravated sexual assault and kidnapping, N.J.S.A. 2C:11-3c(4)(g). The jury, however, unanimously found that the State had failed to prove the existence of the c(4)(c) aggravating factor, namely, that the murder had involved depravity, N.J.S.A. 2C:11-3c(4)(c). Some or all of the jurors found the following mitigating factors: (1) that defendant had been denied nurturing as an infant (6 jurors); (2) that he had been born to drug and alcohol-dependent parents (12 jurors); (3) that drinking by his mother during pregnancy had contributed to defendant's physical and developmental disabilities (2 jurors); (4) that his father had abused members of the family when defendant was an infant, thereby exposing him to violent and abusive behavior (8 jurors); (5) that his mother had abandoned him with relatives throughout his youth (3 jurors); (6) that his mother had neglected and abused him because of her own upbringing and dependence on alcohol (10 jurors); (7) that throughout his childhood, he had been exposed to excessive amounts of domestic violence and substance abuse (10 jurors); (8) that he had suffered through multiple placements and periodically had attended 11 different schools (10 jurors); (9) that he had been denied consistent treatment throughout childhood despite identification of emotional and psychological problems (3 jurors); (10) that his background had increased significantly his risk of engaging in substance abuse and antisocial behavior (8 jurors); (11) that he had been allowed to abuse drugs and alcohol at an early age (6 jurors); (12) that he had begun acting out during his childhood because of unresolved and untreated emotional disturbances (6 jurors); (13) that during his childhood, he had been exposed periodically to an unstable father (6 jurors); (14) that he had been deprived of a stable nurturing home throughout his childhood (5 jurors); (15) that he had not been provided with recommended and necessary therapy (4 jurors); and (16) that the sudden death of his mother had left him with unresolved grief issues that were not addressed through therapy (6 jurors). The jury unanimously rejected the following two factors: (1) that defendant had been denied exposure to proper role models during his childhood; and (2) the "any other reasons not mentioned" factor.

However, the jury unanimously found that the two aggravating factors together outweighed the mitigating factors beyond a reasonable doubt. Defendant was accordingly sentenced to death.

After the jury was discharged, the parties discovered that a graphic photo of wounds on the victim's genitalia accidentally had been submitted to the jury during the penalty phase. The trial court subsequently denied defendant's motion for a non-death verdict or, in the alternative, a new penalty-phase trial, concluding that the accidental submission of the photo had not prejudiced defendant because it had been admitted into evidence during the guilt phase.

That same day, the trial court sentenced defendant on the noncapital counts. The court merged the felony-murder conviction into the purposeful-or-knowing-murder conviction and sentenced defendant to thirty years to life. The two counts of aggravated sexual assault were merged with each other. The court then sentenced defendant on the kidnapping conviction to fifty years of imprisonment with a twenty-five-year parole-ineligibility bar and on the aggravated-sexual-assault conviction to a consecutive twenty-year term with a ten-year parole bar.

II

Jury Selection

Defendant asserts that he was denied an impartial jury because of juror Maria Hollenback's alleged intent, formed during the trial, to seek employment at the Monmouth County Prosecutor's

Office. Defendant also contends that he was prejudiced by her omission during voir dire of the fact that her cousin was an inmate in a federal prison. For those reasons, defendant maintains that he is entitled to a new trial. Following an evidentiary hearing, the trial court found that Hollenback had not intended to seek employment at the Prosecutor's Office until after the trial and that her obtaining employment there was "happenstance." The court also concluded that her failure to reveal her cousin's status as an inmate had been neither deliberate nor prejudicial.

-A-

Employment at Prosecutor's Office

Defendant contends that, given the incredibly short time span between the verdict and Hollenback's application and the numerous instances of her alleged perjury at the evidentiary hearing, the trial court clearly abused its discretion in concluding that she had never contemplated, during the trial, seeking employment at the Prosecutor's Office and that she had no ulterior motive in convicting and sentencing defendant.

We reject defendant's contention that the trial court erred in making factual findings that undermine his claim. The scope of our appellate review of those findings is limited to a determination of whether they are supported by credible evidence in the record. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). The trial court heard the testimony and saw the witnesses, thereby placing it in a much better position than this Court to Judge credibility. The trial court recognized the inconsistencies in Hollenback's testimony, but nevertheless found her to be candid. Implicit in that finding was the inability of the defense to offer any direct evidence that she had contemplated employment during the pendency of the trial.

We reject defendant's assertion that Hollenback would have had an incentive to ingratiate herself with the Prosecutor's Office by convicting and returning a death sentence. Absent supporting evidence, that possibility is pure speculation and assumes that Hollenback disregarded her oath for personal gain. The presumption that she followed her oath has not been rebutted. See State v. LaFera, 42 N.J. 97, 110, 199 A.2d 630 (1964).

-B-

Omission During Voir Dire

Defendant also seeks reversal of his conviction based on Hollenback's omission, during voir dire, that she had a cousin in federal prison. When a juror incorrectly omits information during voir dire, the omission is presumed to have been prejudicial if it had the potential to be prejudicial. In re Kozlov, 79 N.J. 232, 239, 398 A.2d 882 (1979); Wright v. Bernstein, 23 N.J. 284, 293-96, 129 A.2d 19 (1957); State v. Scher, 278 N.J. Super. 249, 262-68, 650 A.2d 1012 (App. Div. 1994), certif. denied, 140 N.J. 276, 658 A.2d 299 (1995). As the Court stated in In re Kozlov, (supra) :

Where a juror on voir dire fails to disclose potentially prejudicial material, such as that involved in this case, a party may be regarded as having been denied [a] fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be Judged fairly by an impartial jury.

[ 79 N.J. at 239.]

In its application, however, that rule is not as all-encompassing as it appears at first glance. Although the rule does not require a litigant to demonstrate prejudice by showing that an improperly empaneled juror did not decide the case fairly, Wright, (supra) , 23 N.J. at 295, it does require a litigant to demonstrate that, had he or she known of the omitted information, he or she would have exercised a peremptory challenge to exclude the juror. Id. at 294. That is so because

once the jury is sworn, . . . the law presumes that every juror in a case is indifferent and above legal exception, or otherwise he would have been challenged for cause. This presumption puts a duty on a party to show that they were or would have been dissatisfied with the jury as finally impaneled, and that they would have exercised the right of additional peremptory challenges given them by statute if they were aware of the true situation.

[Ibid. (emphasis added).]

In Wright, (supra) , the Court concluded that it had "no doubt had the prospective juror answered the inquiry truthfully, he would have been peremptorily challenged," thus causing it to sustain the claim of prejudice. 23 N.J. at 294. Absent an affirmative showing that a litigant would have exercised a peremptory challenge to exclude a juror, the voir dire omission is harmless. See Scher, (supra) , 278 N.J. Super. at 266-68. Such a rule makes sense because if a litigant would not have challenged the juror, the litigant could not have been prejudiced.

In the present case, it is highly unlikely that defendant would have exercised a peremptory challenge to excuse Hollenback had she disclosed her cousin's imprisonment. Her answers during voir dire indicated that she could be receptive to psychiatric testimony and to mitigating evidence about defendant. For example, at one point, defense counsel asked her about her impression of the effects of a child's upbringing on his or her future behavior:

Q: . . . You also mentioned that -- an interesting observation. Everybody has the potential to do wrong thinks [sic] but some people, they get a better chance at not doing the wrong thing or better opportunities to --

A: Yes.

Q: Could you explain --

A. My observation -- in my observation

--

Q: Yeah. Sure that's what we want.

A: Children, for example, whose parents bring them up, what we say is denominational of the Lord, we bring them up knowing right from wrong. In my observation, limited observation, those children, myself included, tend to, you know, have a narrow perimeter of behavior, you know.

Q: Of right and wrong? You're more . . . aware of it, is that what you're saying?

A: I guess if you are polished more. I don't know why it is. I know there are things that in my observation children are brought up with that, within those perimeters and they're better behaved just altogether, yeah.

Q: Now, as I explained that process, do you think that you could possibly consider the background of Mr. Cooper or perhaps when he was a child, when he was first being raised, could you consider that in the weighing process and determine whether he should live or die?

A: Sure.

Q: You say that with quite certainty. Can you explain that more to me.

A: Yes.

Q: Why do you say it so certain?

A: Because as I said to you before, I think how a child is brought up is relevant as he behaves as an adult or even as a child, sure.

Thus, during voir dire, Hollenback did not appear to be in any way a "bad" defense juror.

The question then becomes whether the additional information would have changed defense counsel's acceptance of Hollenback. We are satisfied that it would not. First, she testified at the remand hearing that she was not close to her cousin, having neither seen him nor spoken to him since 1950. Second, as for her attitude toward those sent to prison, she stated that she occasionally sent Christmas cards to her cousin.

This information did not make Hollenback a less desirable juror from a defense perspective. Perhaps it is for that reason that defendant does not elaborate even in the most hypothetical way on the prejudice that he suffered vis-a-vis the omission and does not even assert that he would have struck Hollenback from the jury, simply stating that the omission "deprived [him] . . . of information necessary to make intelligent use of his peremptory challenges." That, however, simply is not the test under our law.

We conclude that the events surrounding Hollenback's employment with the Monmouth County Prosecutor's Office do not constitute reversible error. We also conclude that her voir dire omission was harmless.

III

Alleged Death Qualification of Juror

The essence of defendant's argument is that the trial court erred by granting the prosecutor's motion to dismiss juror Fred Rummel for cause because of his relatively uncommitted views on capital punishment. Defendant stresses that a capital juror may not be removed for cause simply because the State does not like his views on the death penalty and that, in order to be removed for cause, the juror's qualms about capital punishment must prevent him from following the law. Defendant relies on Gray v. Mississippi, 481 U.S. 648, 664-65, 107 S. Ct. 2045, 2054-55, 95 L. Ed. 2d 622, 637 (1987), and asserts that an erroneous exclusion in this context can never be harmless.

A capital juror may only be excused for cause based on his or her views on the death penalty if such views would substantially impair his or her ability to follow the law during the trial. Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed. 2d 581, 589 (1980); State v. Martini, 131 N.J. 176, 210, 619 A.2d 1208 (1993) (Martini I), cert. denied, U.S. , 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995); State v. Ramseur, 106 N.J. 123, 255-56, 524 A.2d 188 (1987). Here, Rummel clearly stated that, although he was sympathetic to the possibility of rehabilitation, he believed in the death penalty and could impose it. He was thus not death-excludable.

A review of the record, however, reveals that Rummel was not excused because of his views on capital punishment. The prosecutor based her motion to excuse Rummel for cause on numerous responses that he gave, including his ambiguous views on the death penalty, his inconsistent responses, and his failure to disclose his political activities. She never argued that he was death-excludable. Moreover, contrary to defendant's assertion, the trial court did not "adopt[] the State's reasoning" regarding the death penalty. Indeed, the court never even mentioned Rummel's views on the death penalty in granting the prosecutor's motion. Instead, it stressed the other irregularities in his testimony and answers on the juror questionnaire.

Apart from the lack of evidence of death-qualification, defendant cannot plausibly claim that he was prejudiced by Rummel's dismissal. First, Rummel expressed no qualms about capital punishment. Second, although he later disavowed it, he stated in his questionnaire that he could not consider child abuse as mitigating evidence, which was the core of defendant's penalty-phase defense. Third, he stated on his questionnaire that, given the brutal circumstances of the case, he would not be able to Judge the case impartially, although he later abandoned that view in court. Fourth, he had served as a juror in a prior murder case in which the jury had returned a guilty verdict. Finally, he stated that he knew a police officer involved in the case. In sum, many defense attorneys would have characterized Rummel as anti-defense and would have considered him to be a liability were he to be selected to serve on a jury. Hence, we find defendant's claim to be without merit.

IV

Admission of Defendant's Statements

Defendant contends that his confession statement to the Asbury Police Department was involuntary because it was induced by a police officer's material misrepresentation that he would face only a prison term, rather than a possible death sentence, for the murder. Defendant maintains that the admission of the statement at trial violated his rights under the Fifth and Fourteenth Amendments to the Federal Constitution, and Article I, paragraph 10, of the New Jersey Constitution.

On the night of his arrest, defendant provided the police with oral and written statements, in which he made numerous incriminating remarks regarding the kidnapping, rape, and murder of L.G. He moved to suppress the statements, arguing that they had been involuntarily obtained. The trial court held a hearing on July 8, 1994, during which Officer Valerie Williams, Detective John Musiello, and defendant testified. On August 4, 1994, the court held that defendant had voluntarily made the statements, and that they were admissible.

At issue during the hearing, among other things, was Detective Musiello's statement to defendant, after defendant had denied any involvement in killing L.G. and immediately before defendant confessed. Detective Musiello stated that

the person that did this would be charged with murder and would be facing life imprisonment with a minimum of thirty years parole. I told him the person that did this, we had witnesses and we had forensic evidence and, again, we would be looking for Court orders to get exemplars and have the witnesses review photographs or persons in person.

Detective Musiello admitted that he had not informed defendant that the death penalty was a potential punishment for the murder.

Defendant testified that

Detective Fazio . . . drew a diagram . . . with a seven on one side of a line and fifty on the other side of the line. And he told me if I confess to the crime, he would say that all I would get is a manslaughter charge which would be seven years. He said if I do not work with them, he would say I would get fifty or more years. He says, we, meaning him and the other detectives, were being nice to you, but you keep fucking us around we're going to send the other detectives in here, and they're not going to be as nice as we have been to you.

Defendant stated that, in addition to believing that he would get a reduced charge if he confessed, he believed that the officers would hit him if he did not confess. Detective Musiello denied having said anything about a reduced charge.

In denying defendant's suppression motion, the trial court found that Detective Musiello had told defendant that he was facing thirty years in prison without parole. However, the court did not find the statement to be threatening, instead the court characterized it as "kind of factual." The court also found that the detectives had not promised defendant a reduced sentence; they simply had informed him "what the facts were." The court concluded that the statement was voluntary and that defendant was intelligent and strong enough not to be intimidated by the officers.

Defendant's claim raises a mixed factual-legal issue: whether Detective Musiello's statement about thirty years of imprisonment being the punishment for murder rendered defendant's waiver involuntary or unknowing. Defendant has not raised on appeal any other grounds for suppression despite his testimony at the suppression hearing that he had feared physical abuse during the interrogation.

A custodial confession is admissible only if there has been a knowing, intelligent, and voluntary waiver of Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966). To determine voluntariness, courts examine the totality of the circumstances. State v. Galloway, 133 N.J. 631, 654, 628 A.2d 735 (1993). Although misrepresentations by police officers to the subject of an interrogation are relevant in analyzing the totality of the circumstances, People v. McClary, 20 Cal. 3d 218, 571 P.2d 620, 626, 142 Cal. Rptr. 163 (Cal. 1977) (holding that confession was involuntary based on various circumstances of interrogation, including misrepresentation about defendant's death-eligibility), misrepresentations alone are usually insufficient to justify a determination of involuntariness or lack of knowledge. Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 1425, 22 L. Ed. 2d 684, 693 (1969); Galloway, (supra) , 133 N.J. at 653-57; State v. Miller, 76 N.J. 392, 402-05, 388 A.2d 218 (1978); State v. LaPointe, 237 Conn. 694, 678 A.2d 942, 960-61 (Conn.), cert. denied, U.S. , 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); State v. Register, 323 S.C. 471, 476 S.E.2d 153, 158-59 (S.C. 1996), cert. denied, U.S. , 117 S. Ct. 988, 136 L. Ed. 2d 870 (1997). Moreover, a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession. People v. Benson, 52 Cal. 3d 754, 802 P.2d 330, 344-45, 276 Cal. Rptr. 827 (Cal. 1990) (holding that comment by officer that case was not death-eligible did not render confession involuntary because comment did not cause defendant to confess).

The statement by Detective Musiello is not entirely inaccurate. As the State emphasizes, the ordinary sentence for murder is life imprisonment with thirty years of parole ineligibility. N.J.S.A. 2C:11-3b. The death penalty only comes into play when the prosecutor, not police officers, charges a death-eligible form of murder under N.J.S.A. 2C:11-3c, and submits notice of at least one aggravating factor. N.J.S.A. 2C:11-3c(2)(e); R. 3:13-4(a). Although a police officer may suspect that the murder will be death-eligible, the officer has no way of knowing for sure.

The totality of the circumstances involved more than a statement about potential sentences. Detective Musiello also informed defendant about the investigatory steps that were being taken to tie him to the murder. Considered as a whole, the statement that induced defendant to confess was not a promise of "mere" life imprisonment, but rather an attempt to convey to defendant the seriousness of the offense, the seriousness of the sentence that he was facing, and the strong case that the police officers were building against him. Although the statements by the police might have included some puffery, they were, as the trial court described them, "factual."

Given the totality of the circumstances, the atmosphere during defendant's interrogation and confession was not coercive. The trial court found that defendant's confession was given after a knowing and voluntary waiver of his Miranda rights. That Conclusion is supported by the record. Johnson, (supra) , 42 N.J. at 162. We thus affirm that finding.

V

Jury Instruction, Guilt Phase

Defendant has raised several claims based on his assertions that the jury instructions failed to make the jury aware of the legal effect of its findings. He maintains that the jury should have been instructed under a "unified-murder charge," where the sole issue before the jury would be defendant's state of mind during the murder. He also complains that the sequential presentation of the murder charge deprived him of an opportunity for the jury to convict him of noncapital felony murder. Finally, he contends that it was reversible error not to give an ultimate-outcome charge during the guilt phase regarding the sentence for felony murder.

-A-

Unified-Murder Charge

During the guilt phase, defendant requested that the trial court charge the jury that it could find him guilty of the general crime of murder without being unanimous about the type of murder he had committed, namely, purposeful-or-knowing murder or felony murder. Because felony murder is not death-eligible, a verdict split between purposeful-or-knowing murder and felony murder would be a non-death-eligible murder conviction.

Defendant argued that this Court's holding in State v. Brown, 138 N.J. 481, 509-14, 651 A.2d 19 (1994) (requiring instruction on possibility of nonunanimity in determination of principal-liability murder versus accomplice-liability murder), compelled a similar instruction on nonunanimity in the context of felony murder versus purposeful-or-knowing murder. Defendant also relied on State v. Mejia, 141 N.J. 475, 486-87, 662 A.2d 308 (1995) (requiring instruction on possibility of nonunanimity in determination of intent to kill versus intent to cause serious bodily injury). The trial court denied the defense request, concluding that the concept of one unified crime of murder was not the law in New Jersey. The court thus severed the jury's consideration of purposeful-or-knowing murder from its consideration of felony murder.

Defendant contends that, given the structure of the murder statute, there is one crime of murder in New Jersey, as opposed to distinct crimes of capital and noncapital murder. He argues that under New Jersey's murder statute, N.J.S.A. 2C:11-3, three mental states give rise to murder: (1) purpose (to kill or to cause serious bodily injury), N.J.S.A. 2C:11-3a(1); (2) knowledge (that death will occur or that serious bodily injury will occur), N.J.S.A. 2C:11-3a(2); and (3) the mental state necessary for a predicate felony to felony murder, N.J.S.A. 2C:11-3a(3). He argues that that structure indicates that, in New Jersey, there is one crime of murder with various theories to support a murder conviction; some of those theories -- purpose to cause death or knowledge that death will occur -- trigger death-eligibility, N.J.S.A. 2C:11-3(c), while the other theories -- purpose to cause serious bodily injury (prior to the 1992 amendment to Article I, paragraph 12 of the New Jersey Constitution), knowledge that serious bodily injury will occur (prior to the 1992 amendment), and felony murder -- do not. Defendant asserts that, despite the fact that different theories may or may not trigger death-eligibility, the fact remains that there is one crime of murder and no such thing as distinct crimes of capital and noncapital murder.

The State responds by arguing that felony murder is entirely distinct from other types of murder because it has different elements than purposeful-or-knowing murder and is a lesser crime, as evidenced by its non-death-eligible status. The crux of the State's argument is that felony murder is not the moral equivalent of purposeful-or-knowing murder (be it intent-to-kill or intent-to-inflict-serious-bodily-injury murder) because felony murder, unlike the others, requires only an intent to commit an underlying felony as opposed to an intent to kill or an intent to cause serious bodily injury that results in death. The State also points to several of this Court's decisions that have implicitly recognized the distinct nature of felony murder by holding that trial courts may charge sequentially on the various theories, State v. Perry, 124 N.J. 128, 164-65, 590 A.2d 624 (1991) (approving of sequential charge for non-felony-murder offenses), and that a purposeful-or-knowing-murder conviction may be vacated without vacating a felony-murder conviction. State v. Pennington, 119 N.J. 547, 556, 575 A.2d 816 (1990) (reversing purposeful-or-knowing-murder conviction without setting aside felony-murder conviction).

A determination of how felony murder fits into the capital-murder context must begin with an examination of the structure of the murder statute, N.J.S.A. 2C:11-3, and the Death Penalty Act, N.J.S.A. 2C:11-3c to -3i. The murder statute was part of the New Jersey Code of Criminal Justice ("the Code"), L. 1978, c. 95, that became effective September 1, 1979. N.J.S.A. 2C:98-4. The Code defines murder as follows:

a. Except as provided in N.J.S.2C:11-4 criminal homicide constitutes murder when:

(1) The actor purposely causes death or serious bodily injury resulting in death; or

(2) The actor knowingly causes death or serious bodily injury resulting in death; or

(3) It is committed when the actor [commits felony murder].

[N.J.S.A. 2C:11-3a.]

Thus, the Code defines three forms of murder: purposeful murder (with intent to kill or to inflict serious bodily injury), knowing murder (with knowledge/awareness that death or serious bodily injury will occur), and felony murder. N.J.S.A. 2C:11-3a.

Although the death penalty had been proposed at the time the Code was enacted, the Death Penalty Act did not become law until August 6, 1982. L. 1982, c. 111, §§ 1, 3. To implement the death penalty, the Legislature changed the penalty section of the murder statute, N.J.S.A. 2C:11-3b, to add "except as provided in subsection c. of this section." L. 1982, c. 111, § 1. Subsection "c" limits capital murders to purposeful-or-knowing murderers "who commit[] the homicidal act by [their] own conduct; or who as an accomplice procure[] the commission of the offense by payment or promise of payment of anything of pecuniary value; or who, as . . . leaders of . . . narcotics trafficking networks" as defined in N.J.S.A. 2C:35-3, command the killing. N.J.S.A. 2C:11-3c.

Unlike some jurisdictions, the New Jersey Legislature has not made felony murder death-eligible. Some jurisdictions that have made felony murder death-eligible have adopted the unified-murder concept. E.g., State v. Encinas, 132 Ariz. 493, 647 P.2d 624, 627-28 (Ariz. 1982); People v. Milan, 9 Cal. 3d 185, 507 P.2d 956, 961-62, 107 Cal. Rptr. 68 (Cal. 1973); Brown v. State, 473 So. 2d 1260, 1265 (Fla. 1985); People v. Travis, 170 Ill. App. 3d 873, 525 N.E.2d 1137, 1147-48, 121 Ill. Dec. 830 (Ill. App. Ct. 1988); State v. Nissen, 252 Neb. 51, 560 N.W.2d 157, 165 (Neb. 1997); Crawford v. State, 840 P.2d 627, 640 (Okla. Crim. App. 1992). *fn1

Although under our prior death-penalty statute, N.J.S.A. 2A:113-4 (repealed 1978), felony murder made a defendant death-eligible, N.J.S.A. 2A:113-2, -4 (repealed 1978), the Legislature elected not to continue that practice under our current Death Penalty Act. Therefore, New Jersey, unlike jurisdictions that have a unified-murder concept based on felony murder being a death-eligible offense, has intentionally rejected the predicate for a unified-murder charge. The fact that the Legislature has established the identical sentence for noncapital purposeful-or-knowing murder as it has for felony murder should not be determinative of whether to require a unified-murder charge. It is the culpable mental state plus the aggravating circumstances that determine death-eligibility and that also distinguish capital murder from felony murder.

The mental states required to convict for purposeful murder and knowing murder are "equivalent expressions of moral culpability." State v. Bey, 129 N.J. 557, 582, 610 A.2d 814 (1992) (Bey III). Unlike purposeful-or-knowing murder, felony murder is an absolute liability crime because a defendant need not have contemplated or intended the victim's death. State v. Martin, 119 N.J. 2, 20, 573 A.2d 1359 (1990); State v. McClain, 263 N.J. Super. 488, 491, 623 A.2d 280 (App. Div.), certif. denied, 134 N.J. 477 (1993); State v. Darby, 200 N.J. Super. 327, 331, 491 A.2d 733 (App. Div. 1984), certif. denied, 101 N.J. 226 (1985). The only mental state required for felony murder is the specific mental culpability required to commit one of the particular underlying felonies specified in N.J.S.A. 2C:11-3(a)(3). Because the mens rea for purposeful-or-knowing murder is different from that required for felony murder, we do not believe that the Legislature intended to create a unified crime of murder. This Court has acknowledged in a capital case that the "elements are different" in felony murder than they are in purposeful-or-knowing murder. State v. Purnell, 126 N.J. 518, 531, 601 A.2d 175 (1992).

We conclude that felony murder is not the moral equivalent of purposeful-or-knowing murder. We believe the Legislature intended that death-eligibility be viewed as the touchstone of moral equivalence. Defendant's reliance on State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988); Purnell, (supra) , 126 N.J. 518; Brown, (supra) , 138 N.J. 481; and Mejia, (supra) , 141 N.J. 475, to support his claim of entitlement to a unified-murder charge is misplaced.

Gerald, (supra) , held that the imposition of the death penalty for serious-bodily-injury murder violated the New Jersey Constitution's ban on cruel and unusual punishment. 113 N.J. at 89. The Constitution was amended, effective December 3, 1992, see Acts of the First Annual Session of the Two Hundred and Fifth Legislature of the State of New Jersey and Thirty-Fifth Under the New Constitution: Chapters 76-215, at 1429 (1992) ("Acts"), to overturn Gerald. See Assembly Judiciary, Law and Public Safety Committee, Statement to Assembly Bill No. 2113--L. 1993, c. 111 ("Statement "). To ensure that the amendment would be given full effect, the Legislature amended the Death Penalty Act to make murderers who intend to commit serious bodily injuries deatheligible. Ibid. ; L. 1993, c. 111 (approved May 5, 1993).

Purnell, (supra) , requires that in a capital-murder case, "all forms of homicide rationally supported by the evidence . . . should be placed before the jury." 126 N.J. at 530. Purnell does not contemplate a unified-murder charge. Rather, it requires that felony murder be submitted to the jury in capital cases if rationally supported by the evidence even if it is not technically a lesser-included offense of capital murder. Id. at 530-34. In Purnell, the rational basis was the State's reliance on death occurring in the course of a felony as an aggravating factor even though felony murder was not charged in the indictment. Id. at 523-24.

Brown, (supra) , involved a death-eligible murder with a factual scenario that required the jury to decide whether the defendant acted as a non-death-eligible accomplice or as a death-eligible principal. 138 N.J. at 509. Similarly, a nonunanimity possibility was submitted to the jury in Mejia, (supra) , a 1991 capital case in which the jury had to decide whether the defendant was death-eligible based on an intent to kill, or non-death-eligible based on an intent to cause serious bodily injuries. 141 N.J. at 479, 482-83. The constitutional amendment that overturned Gerald was not yet in effect when the Mejia murder occurred.

Because the Legislature has decreed that felony murder is not a death-eligible offense and our capital jurisprudence, stressing the importance of providing a jury with every opportunity to spare a defendant's life, has been limited to purposeful-or-knowing-murder cases in which the jury had to resolve a factual dispute determinative of whether that murder was death-eligible, we decline to extend that jurisprudence to noncapital murder. Those cases have been restricted to capital murder as defined in N.J.S.A. 2C:11-3c for which notice of aggravating factors has been given. N.J.S.A. 2C:11-3c(2)(e).

Moreover, to permit a jury to return a nonunanimous verdict on a charge of felony murder contradicts "one of the nearly-universal hallmarks of trial by jury [which] is the requirement of a unanimous verdict in criminal cases. The roots of the search for jury unanimity are traced in 3 William Blackstone, Commentaries *375-76." Brown, (supra) , 138 N.J. at 594 (O'Hern, J., Dissenting in part). The public's right "to see that a criminal prosecution proceeds to a verdict either of acquittal or conviction is predicated on 'the public's interest in fair trials designed to end in just judgments.'" Id. at 597 (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837, 93 L. Ed. 974, 978 (1949)). The Legislature never contemplated such a draconian change in the handling of murder cases.

Aside from the absence of any legislative intent to create a unified crime of murder, the intermingling of death-eligible murder with non-death-eligible murder would create utter chaos when instructing a jury. This Court consistently has emphasized the need for clear and correct jury instructions. Martini I, (supra) , 131 N.J. at 271; State v. Collier, 90 N.J. 117, 122, 447 A.2d 168 (1982). Jury instructions are supposed to serve as "a road map to guide the jury." Martin, (supra) , 119 N.J. at 15. Rather than guiding a jury, a unified-murder charge in a case in which felony murder is not a death-eligible offense would lead a jury "down the wrong path . . . to a verdict not permitted under our law." State v. Grey, 147 N.J. 4, 14, 17, 685 A.2d 923 (1996). It would cause extraordinary confusion, ultimately requiring reversal of any murder or felony-murder conviction. Given the absence of any legislative intent to create a unified crime of murder and the confusion such a charge would create, we conclude that the trial court properly rejected the request to give a unified-murder charge.

-B-

Sequential Presentation of Purposeful-or-Knowing-Murder Charge and Felony-Murder Charge

Defendant contends that the trial court's refusal to instruct the jury to consider purposeful-or-knowing murder and felony murder simultaneously, contravened this Court's jurisprudence on sequential presentation of charges. Defendant maintains that in a capital case, sequential presentation of felony murder as an alternative to, or as a lesser-included offense of, capital murder creates a risk that the jury will convict of the capital murder without considering felony murder as an alternative.

The State responds by arguing that a sequential charge is not inherently prohibited and that, except in a small number of instances, sequential deliberations provide the jury with a good framework in which to work. The State contends that the only danger of sequential deliberations is stratification of jury thought, which can be avoided by clear instructions and a clear verdict sheet. The State further asserts that, in this case, instructing first on purposeful-or-knowing murder did nothing to preclude jury consideration of felony murder and that if the jury had had any reasonable doubt about the purposeful-or-knowing nature of the killing, it would have acquitted defendant.

Unlike Purnell, (supra) , 126 N.J. 518, and some other capital cases, defendant also was indicted for felony murder based on the homicide occurring during the commission of an aggravated sexual assault and a kidnapping. In Purnell, and the present case, the State relied on the c(4)(g) aggravating factor, that a homicide occurred during the course of a felony. Id. at 529. The defense theory relating to the felony-murder charge in the present case was based on the assertion that defendant had accidentally compressed L.G.'s carotid artery for about thirty seconds while raping her. On the basis of that contention and evidence presented, the trial court in the present case found a rational basis in the evidence to charge felony murder. The trial court in Purnell, however, did not submit felony murder to the jury, notwithstanding the State's evidence that the homicide had occurred during the commission of a felony. Ibid.

Purnell held that in a capital case,

all forms of homicide rationally supported by the evidence, whether they be lesser-included or alternative offenses, should be placed before the jury. To truncate the definitions of the murder statute and thus deny a jury the mechanism to decide which of the forms of murder has been proven is unacceptable. State v. Long, 119 N.J. 439, 462, 575 A.2d 435 (1990). In that respect, defendant's claim of entitlement to a felony-murder charge is similar to a request for a lesser-included offense charge. We have regularly held that a defendant is entitled to such a charge if there is any evidence "that would have afforded the jury a rational basis for convicting" the defendant of the lesser-included offense. State v. Moore, 113 N.J. 239, 290, 550 A.2d 117 (1988). In State v. Ramseur, (supra) , 106 N.J. 123, 524 A.2d 188, we held that a trial court must charge the jury regarding "all of the possible offenses that might reasonably be found from such facts." Id. at 271 n. 62, 550 A.2d 117. Although strictly speaking felony murder is not a lesser-included offense of murder in the sense that its elements are different, the statutory definition of lesser-included offenses, as we noted in State v. Sloane, 111 N.J. 293, 300, 544 A.2d 826 (1988), is not "all-encompassing," nor are the statutory categories "water-tight compartments." As Justice Stein has noted, Sloane suggests that in certain circumstances, subject to the requirements of fair notice, an offense, if supported by the evidence, should be charged to the jury even though it does not meet the Code's definition of lesser-included offense. State v. Mancine, 124 N.J. 232, 265, 590 A.2d 1107 (1991) (Stein, J., Concurring). That principle "comports with our general view that subject to fair notice the jury should resolve the degree of an actor's guilt on the basis of the evidence presented to the jury." Sloane, (supra) , 111 N.J. at 300, 544 A.2d 826.

[Purnell, (supra) , 126 N.J. at 530-31.]

The "alternative offense" in Purnell was felony murder and the jury should have been charged as if it were a lesser-included offense. Id. at 531. Purnell does not remotely suggest that the noncapital offense of felony murder be charged simultaneously with a capital offense.

One of the problems addressed in State v. Long, 119 N.J. 439, 575 A.2d 435 (1990), was the trial court's failure to give a Gerald charge. Id. at 460-65. In Long, neither the indictment, the jury charge, nor the verdict sheet informed the jury that intent to cause death triggered death-eligibility, but an intent to cause serious bodily injury did not. Id. at 461-62. Although both forms of intent constituted purposeful-or-knowing murder, the two forms were not explained to the jury in terms of death-eligibility. Ibid. Intent-to-kill murder makes a defendant death-eligible, N.J.S.A. 2C:11-3c; intent-to-cause-serious-bodily-injury murder, at the time the case was decided, did not trigger deatheligibility. Gerald, (supra) , 113 N.J. at 89. Thus, under Long, the alternative offense that must be submitted to the jury as an option is the Gerald and Mejia noncapital serious-bodily-injury offense.

In addition, Purnell mandates that in a capital case in which the murder was committed in the course of one of the felonies specified in N.J.S.A. 2C:11-3a(3), the death penalty may not be imposed unless the felony-murder option has been submitted to the jury, provided that a rational basis exists in the evidence. Purnell, (supra) , 126 N.J. at 530-34. The Purnell Court acknowledged that although the elements of felony murder may differ from those of a capital murder, and therefore that it may not be a traditional lesser-included offense, it nonetheless should be treated as a lesser-included offense when deciding what offenses must be submitted to the jury. Id. at 531, 601 A.2d 175. Here, the felony murder was submitted to the jury pursuant to Purnell and Count Two of the indictment based on the allegation that the homicide occurred during the course of a kidnapping and rape. Analytically, therefore, we regard felony murder as a lesser-included offense of capital murder for purposes of deciding the appropriateness of sequential jury instructions.

Ordinarily, juries may not consider lesser-included offenses until they have acquitted of the greater offense. State v. Harris, 141 N.J. 525, 552-53, 662 A.2d 333 (1995); State v. Coyle, 119 N.J. 194, 223, 574 A.2d 951 (1990). The rationale behind the sequential ordering of greater- and lesser-included offenses is that the jury must convict of the crime supported by the evidence, as opposed to compromising between jurors who want the greater charge and jurors who want to acquit. See Harris, (supra) , 141 N.J. at 553 ("It is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law it is charged.") (internal quotations omitted). Thus, if jurors are split between the greater charge and acquittal, the result is a hung jury.

The trial court used the following verdict sheet in the present case regarding the murder charges:

COUNT I

PURPOSEFUL OR KNOWING MURDER

Did the defendant, David Cooper, purposely or knowingly cause the death of [L.G.]?

NOT GUILTY

GUILTY

If, and only if you find the defendant guilty answer the following:

1. We unanimously find the defendant committed the murder by his own conduct.

2. We unanimously find the defendant did not commit the murder by his own conduct.

3. We do not unanimously agree that the defendant committed the murder ...


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