Submitted: January 6, 1998 Before Judges Dreier, Keefe and Wecker. On appeal from the Superior Court of New Jersey, Law Division, Camden County.
The opinion of the court was delivered by: Keefe, J.A.D.
 In this death penalty case, the jury was unable to unanimously conclude beyond a reasonable doubt that defendant James Earl Jones purposely or knowingly caused the death of Hope Stauffer. The jury, however, found defendant guilty of the murder of Hope Stauffer, contrary to N.J.S.A. 2C:11-3a(1) (count one); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count three); first degree kidnapping of Hope Stauffer, contrary to N.J.S.A. 2C:13-1b(1)(2) (count four); second degree kidnapping of Hope Stauffer's son, M.S., contrary to N.J.S.A. 2C:13-1b(1)(2) (count five); conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 (count six); first degree robbery, contrary to N.J.S.A. 2C:15-1 (count seven); possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count eight); unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (count nine); and first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(3) (count eleven). Count ten, charging defendant with third degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(1), and count twelve, charging defendant with fourth degree hindering apprehension, contrary to N.J.S.A. 2C:29-3b(4), were dismissed by the trial Judge during trial. *fn1
At sentencing, the trial Judge merged the felony murder conviction into the murder conviction and the conspiracy and possession of a weapon for an unlawful purpose convictions into the robbery conviction. The judge then imposed the following consecutive terms of imprisonment: life with a 30 year parole disqualifier for murder (count one); 30 years with a 15 year parole disqualifier for first degree kidnapping (count four); 10 years with a five year parole disqualifier for second degree kidnapping (count five); and 20 years with a 10 year parole disqualifier for aggravated sexual assault (count eleven). As to the remaining counts for which defendant was found guilty, the Judge imposed the following concurrent terms of imprisonment: 20 years with a 10 year parole disqualifier for first degree robbery (count seven) and 5 years with a 2-1/2 year parole disqualifier for unlawful possession of a weapon (count nine). Defendant, therefore, received an aggregate prison term totaling life plus 60 years, with a 60 year period of parole ineligibility. The appropriate V.C.C.B. penalties were also imposed.
On appeal, defendant raises the following issues through appellate counsel:
I. THE JURY INSTRUCTION ON ACCOMPLICE LIABILITY WAS INCORRECT IN THAT IT POTENTIALLY CAUSED THE JURY TO BELIEVE THAT MERELY SILENTLY ASSENTING TO AND APPROVING OF ANOTHER PERSON'S CRIMINAL BEHAVIOR MAKES ONE AN ACCOMPLICE TO THOSE CRIMES. (Not Raised Below).
II. DEFENDANT'S CONVICTIONS OF PURPOSEFUL AND KNOWING MURDER AND FELONY MURDER MUST BE REVERSED SINCE THE TRIAL JUDGE ERRONEOUSLY PREVENTED DEFENSE COUNSEL FROM ARGUING THAT THE LACK OF FRACTURE TO THE VICTIM'S HYOID BONE AND LARYNX WAS EVIDENCE THAT DEFENDANT'S CONDUCT HAD BEEN RECKLESS, RATHER THAN PURPOSEFUL OR KNOWING.
III. DEFENDANT'S CONVICTION ON THE ELEVENTH COUNT OF THE INDICTMENT MUST BE REVERSED AND THE COUNT DISMISSED AS N.J.S.A. 2C:14-2a(3) UNCONSTITUTIONALLY SETS UP AN IRREBUTTABLE PRESUMPTION THAT AN ACT OF SEXUAL PENETRATION OCCURRING DURING A MURDER IS UNCONSENTED TO; ALTERNATIVELY, THE COURT ERRED IN FAILING TO CHARGE THAT THE STATUTE CREATED A PERMISSIVE INFERENCE ONLY AND THAT THE STATE HAD TO PROVE LACK OF CONSENT BEYOND A REASONABLE DOUBT. (Not Raised Below).
IV. DEFENDANT'S CONVICTION OF AGGRAVATED SEXUAL ASSAULT MUST BE REVERSED SINCE THE TRIAL JUDGE FAILED TO INSTRUCT THE JURORS THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THAT THE VICTIM WAS ALIVE WHEN THE ACT OF SEXUAL PENETRATION OCCURRED. (Not Raised Below).
V. BY AMENDING, OVER DEFENSE OBJECTION, THE FELONY MURDER COUNT TO INCLUDE PREDICATE FELONIES NOT INDICTED BY THE GRAND JURY AS PART OF THE FELONY MURDER COUNT, THE COURT VIOLATED DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO TRIAL ONLY UPON INDICTMENT.
VI. THE SENTENCE IMPOSED MUST BE VACATED AS JUDGE STEINBERG ERRONEOUSLY GAVE RETROACTIVE EFFECT TO THE 1993 AMENDMENT TO N.J.S.A. 2C:44-5A, IMPROPERLY USED THE AVENEL REPORT TO SUPPORT THE SENTENCE AND IMPOSED AN OTHERWISE EXCESSIVE SENTENCE.
In his pro se brief, defendant raises the following additional points:
I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PURSUE THE DEFENSES OF INTOXICATION AND DIMINISHED CAPACITY.
II. REVERSIBLE ERROR WAS COMMITTED BY THE TRIAL COURT IN FAILING TO PROPERLY INSTRUCT THE JURY ON THE DEFENSE OF INTOXICATION AND POSSIBLE LESSER INCLUDED OFFENSES.
III. THE STATEMENT MADE BY THE DEFENDANT TO THE POLICE SHOULD HAVE BEEN EXCLUDED.
IV. THE TRIAL JUDGE ERRED IN FAILING TO DEFINE CAUSATION TO THE JURY IN HIS CHARGE ON FELONY MURDER. (Not Raised Below).
In the early hours of June 29, 1990, Hope Stauffer drove her two brothers, Robert and Timothy, and a friend, David Ray ("Ray"), to the Rosedale Tavern in Pennsauken to purchase wine coolers. Hope's four-year-old son, M.S., was also in the car with them. Hope and her son remained in the car which was parked in the Rosedale Tavern parking lot, while the Stauffer brothers and Ray went inside the tavern. The three men were gone approximately five to fifteen minutes. Before entering the tavern, Timothy Stauffer noticed three males sitting in the back of a black pick-up truck.
According to defendant's second taped statement that was played at trial, defendant and co-defendant Bell hitched a ride in a black pick-up truck to the Rosedale Tavern. Defendant claimed that after spotting Hope in the parking lot, Bell ran over to her and put a "snub nose thirty-eight" gun to her head. Bell demanded Hope to "move over Bitch" as he got into the driver's side of the car. He then moved M.S. from the front seat to the back seat. Defendant got into the passenger side of the car. While Bell drove off from the parking lot, he threatened Hope that "he would shoot her if she something stupid." Hope was crying and begging the two defendants not to hurt her son.
After driving to a field, Bell forced Hope out of the car, grabbing her by the wrist while keeping the gun pointed towards her. Defendant followed Bell and the victim into a wooded area. Defendant forced Hope to the ground, on a tan cushion, by choking her. While defendant continued to choke Hope, Bell "stood to the side with the pistol out" threatening, "Bitch, I'll shoot you act stupid, bitch, I'd shoot you, you act stupid." As Hope struggled, she begged defendant to, "please get off me, please get off me."
Bell put the pistol in his pants and also began choking Hope again with more force. Defendant continued holding Hope by the neck while Bell pulled her clothes off. Defendant claimed that Bell persisted choking Hope while he had sex with her. After about five minutes, defendant ejaculated and "just left, cause I knew she was dead then." Defendant stated that in his mind, as he "was getting ready ... stick penis in her, she was not alive at all." Defendant later stated that when he had "gotten on top of " her body was shaking and it did not stop shaking until Bell "put his hands around her neck for a short period of time." Once defendant finished the sexual assault, he noticed that the victim was "out of it"; he checked for a pulse but did not feel one. When asked again whether the victim was dead while he had intercourse with her, defendant responded: There was no doubt at all, once I had finish coming to the end of having intercourse with her, that she was dead.
As defendant fled, he noticed Bell pull his pants down and proceed to have sex with Hope. Defendant ran to the car where Hope's son had remained and Bell followed, saying, "he bitch is dead, the bitch is dead." Bell drove the car from the woods and dropped defendant and M.S. off on the corner of 29th Street. Bell abandoned the car on Cramer Street and fled.
Defendant asked M.S., who was crying, where he lived. The child responded, "Uncle Joey, 28th Street, Uncle Joey, 28th Street." Defendant admitted that he thought if he brought the child back home he would be less likely to be deemed a suspect.
In the interim, Hope's family realized she and M.S. were missing and began looking for her. They later received word that M.S. was at Joseph Stauffer's house. The Stauffer family went to Joseph's house where defendant told them that he found the child wandering the streets near a church. Defendant led the family to the area where he claimed to have discovered the child and also searched near the church and railroad tracks for the victim. While searching the area near the railroad, Robert Stauffer found the victim's car in a grass parking lot. The tires of the car were covered with mud and the steering wheel cover was "all ripped up." Robert summoned the police.
Officer Robert Morley of the Pennsauken Township Police Department was among those who arrived to investigate the call. Defendant identified himself to Officer Morley as "Clarence Owalsn." Defendant told Officer Morley that he found M.S. while walking through a wooded area behind the Stockton Station Apartments.
Defendant accompanied the Stauffer family and some friends as they searched for the victim. At one point, the searchers were close to the site where the victim's body was located but defendant diverted them from the area saying, "ever mind, don't worry about it, she's not back there." Defendant explained that he did not want to lead them to the site for fear "they would have felt as though it was obvious that had something to do with it by bringing the baby home and saying to go down that road." Officer Ted Nickles of the Pennsauken Police K-9 Unit joined the search and ultimately found Hope's naked, lifeless body.
Officer Morley subsequently identified defendant as James Earl Jones and learned that there was an outstanding warrant for defendant in Camden. Defendant was then placed under arrest and taken into custody.
The autopsy established that Hope died from strangulation. She suffered hemorrhaging and muscle bruising in the neck, including the thyroid gland and larynx. The hemorrhaging and bruising ranged from one-half to one inch deep from the skin. The autopsy also revealed a one-inch laceration of the tissue between her vagina and rectum, indicative of sexual assault. In addition, she suffered a series of injuries including significant purple discoloration of the neck, chest and face; scrapes on the right shoulder, left forearm, left thigh, nose and chin; and bruising to the left shoulder.
According to Dr. Segal, the county medical examiner, the strangulation occurred when she was alive, the laceration of the perineum when she was alive, and the majority of the scrape marks and bruises when she was alive.... The clearly post-mortem injuries were the scratch marks on the lower legs, both sides ... [and the] insect bites.
With regard to the sexual assault, although nonmotile sperm were detected through microscopic examinations of the vaginal material, Dr. Segal stated that "there's no way to say whether the ...