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State v. Feaster

July 30, 1998


The opinion of the court was delivered by: Stein, J.

Argued October 21, 1997

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

Defendant, Richard Feaster, was tried and convicted of the following offenses in connection with the death of Keith Donaghy:

purposeful-or-knowing murder by his own conduct, N.J.S.A. 2C:11-3a(1) and/or (2); felony murder, N.J.S.A. 2C:11-3a(3); conspiracy to commit murder, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b.

In accordance with the penalty-phase verdict rendered after a separate proceeding following the murder conviction, see N.J.S.A. 2C:11-3c(1), defendant was sentenced to death. On the non-capital counts, defendant's conspiracy convictions merged into the related substantive offenses, and the felony murder conviction was merged into the conviction for purposeful-or-knowing murder. The court also merged the conviction for possession of a weapon for an unlawful purpose into the robbery/murder convictions. The court then imposed a consecutive twenty-year term with ten years of parole ineligibility on the robbery conviction as well as a five-year concurrent term on the conviction for possession of a sawed-off shotgun.

Defendant appeals as of right to this Court. N.J.S.A. 2C:11-3e; R. 2:2-1(a)(3). We affirm defendant's convictions and sentence of death.


Facts Jury selection for defendant's trial began in Gloucester County on December 5, 1995. Because voir dire revealed that many potential jurors in the area had knowledge of a second murder for which defendant was separately charged, the attendant risk of prejudice led the court to discontinue Gloucester County jury selection on January 3, 1996. On January 12, 1996, the court ordered that a foreign jury from Salem County be impanelled to hear the case. The guilt phase of defendant's trial took place from February 28 through March 15, 1996. The court conducted the penalty phase on March 21, 22, 25, 26 and 27, 1996.

A. The State's Case

The following summary of the trial proofs fairly represents the evidence that supported the jury's guilt-phase verdict. 1. Events Before the Murder

The events culminating in the October 6, 1993, death of Keith Donaghy originated within a circle of young friends from Gloucester County. The principle members of this group included defendant, Michael Mills, Michael Sadlowski, James Graves and Daniel Kaighn. Defendant was a native of Woodbury Heights while the others were from National Park, another Gloucester County municipality.

Several weeks before the killing, defendant approached Kaighn and asked to borrow a handgun. Defendant explained that he needed a weapon to collect money that his boss owed to him. Defendant alleged that his boss was a "crazy ex-Vietnam vet," and that the gun was necessary for his protection. After repeated requests spanning several weeks, and upon defendant's promise to pay $100 for one day's use of the gun, Kaighn acquiesced. He supplied defendant with a sawed-off twenty-gauge shotgun, a single lead ball, commonly referred to as a "slug," and three or four "birdshot." Kaighn had previously sawed the barrel from the gun and retained the barrel in his bedroom. Defendant picked up the gun from Kaighn's house two weeks prior to the murder and placed it in a blue gym bag. He told Kaighn to meet him at Michael Mills's house later that night.

That evening, Kaighn arrived at Mills's house at approximately 8:30 p.m. Shortly thereafter, defendant arrived and returned the gun to Kaighn along with all the ammunition he had been given earlier in the day. He presented Kaighn with $30, explaining that his boss failed to pay him the full amount owed to him. Others were present at Mills's house that night, and a party soon began, during which Kaighn left and hid the gun and ammunition underneath an old bathtub outside the house. Kaighn testified that the cocaine he ingested at the party had left him "paranoid," and that he did not want to leave with the gun on his person because of his fear of apprehension by law enforcement authorities. According to Kaighn, that was the last time he saw the gun until after the murder, although he acknowledged that he subsequently may have told Mills where the gun was hidden.

Tina Shiplee lived with Michael Sadlowski in an apartment in Runnemede. Shiplee and defendant's girlfriend, Kelly Zuzulock, frequently socialized with the other members of the group. Shiplee testified that in late September or early October 1993, defendant approached her and asked if he could keep a gym bag in her car, explaining that his parents had recently "kicked him out" of their house. Shiplee obliged, and allowed defendant to store the bag in the back of her station wagon. She was unsure whether defendant or Mills placed the bag in the car.

Subsequently, but still prior to the murder, Shiplee went to place her daughter's stroller in the back of the car. As she attempted to move the bag, she realized how heavy it was. Shiplee felt the outside of the bag and suspected that it contained a gun.

2. The Night of the Murder

On October 6, 1993, Shiplee drove her station wagon to pick up Kelly Zuzulock and proceed to the Columbia Cafe, a bar in National Park in Gloucester County. Zuzulock and defendant had dated on and off since high school, and had resumed their relationship after defendant returned from a brief residence in Florida. During the weeks leading up to the murder, Zuzulock testified that their relationship had become precarious, characterized by frequent arguments. She attributed the deterioration of the relationship to their increasing drug use.

Shiplee picked up Zuzulock and the two arrived at the Columbia Cafe sometime between 6:30 and 7:30 p.m. Defendant, Mills, Sadlowski, and others were already there. According to Sadlowski, he drove Shiplee's other car, a 1986 Chevrolet Camaro, and brought both defendant and Michael Mills to the Columbia Cafe. The group had gathered for a pool tournament being held at the bar. Shiplee approached defendant, and without revealing her concern that the gym bag contained a gun, requested that he remove the bag from her car. Defendant agreed to remove the bag before leaving that night, although Shiplee was unsure whether it was Mills or defendant who eventually took the bag from the car. Shiplee had left the car unlocked in the parking lot. On leaving the Columbia Cafe later that night, she observed that the bag had been removed from her car.

Shortly after arriving, Mills inquired of Sadlowski whether he could take the Camaro and drive defendant to retrieve money from defendant's boss. Sadlowski declined the request. Defendant then asked Shiplee if Sadlowski could borrow her car to drive defendant to collect money from his boss. Having been instructed previously that night by Sadlowski that she should not lend her car to defendant, Shiplee refused. Defendant then asked Shiplee if she would drive him, or whether she would allow him to take the car himself. Shiplee rejected each request. Defendant also asked Zuzulock if he could borrow her car, but she also refused and explained that she did not have access to it.

Renee Burkhardt, a resident of National Park, had also driven to the Columbia Cafe on the evening of October 6. Burkhardt described defendant as a "friend of a friend," and knew Mills because he was dating her friend Jennifer Stryzek. After speaking with defendant, Mills approached Burkhardt and asked to borrow her car. Burkhardt agreed and handed the keys to Mills.

Burkhardt testified that after she gave Mills the keys to her mother's 1984 Oldsmobile, she observed Mills and defendant leave the Columbia Cafe and enter the car, with Mills in the driver's seat. Zuzulock also testified that she saw defendant leaving the bar at around 8:00 p.m., and that Mills followed a few minutes later. Shiplee similarly testified that a few minutes after she saw defendant leave the bar, Mills left with Renee Burkhardt. She stated that defendant and Mills left between 8:00 and 8:15 p.m. However, Sadlowski testified that they left between 8:30 and 9:00 p.m. Shiplee then observed Burkhardt return to the bar shortly thereafter.

On the night of October 6, 1993, Keith Donaghy was the only attendant working at the Family Texaco in Deptford Township. Dana Smolenski, a frequent patron of the gas station, pulled into the Texaco to purchase gasoline between 8:20 and 8:25 p.m. When no attendant came to serve her, she pulled her car nearer to the office window and peered inside. She observed that the chair on which Donaghy usually sat had been knocked over, and saw his body on the floor. Frightened, Smolenski quickly drove away, noticing that it was 8:25 p.m. John Fortner, another frequent customer, arrived at the Family Texaco around 8:30 p.m. After pumping the kerosene he used for his heaters, Fortner approached the office to pay and saw Donaghy lying on the floor inside. He walked to the nearby 7-Eleven and requested that someone call the police. At about the same time, another couple made a similar request at the 7-Eleven after noticing Donaghy's body. The Family Texaco is approximately a twelve-minute drive from the Columbia Cafe.

Roughly thirty to forty-five minutes after leaving the bar, defendant called Zuzulock at the Columbia Cafe from a pay phone. Zuzulock did not recall what the conversation was about. Shortly thereafter, Mills returned to the bar. Defendant also returned, five to ten minutes after Mills. According to Zuzulock, defendant appeared to have been using drugs, as she noticed white powder around his nose. Sadlowski noticed that defendant and Zuzulock began to argue when he returned to the bar.

Defendant, Zuzulock, Shiplee and Sadlowski had agreed that they would all return to Shiplee's and Sadlowski's apartment after leaving the bar. The group began to leave the Columbia Cafe at around 10:00 p.m. As Shiplee was finishing her last game of pool before leaving, circling the table contemplating her next shot, she overheard defendant say to Mills and Sadlowski that he could not "believe he killed the guy and didn't get any money." At trial, Sadlowski denied that defendant had made such a statement to him.

Leaving the Columbia Cafe, Sadlowski drove defendant to Shiplee's apartment. At the apartment, defendant insisted on watching the eleven o'clock news. When the coverage describing the murder of Keith Donaghy aired, defendant requested the volume be raised and told Sadlowski to "check this one part out." After the segment was over, Sadlowski observed that defendant had become sweaty and "fidgety," and that he stated, "I can't believe I did this shit. I can't believe this. Why me? You know." On the apartment balcony, after the news broadcast, defendant again told Sadlowski, "I can't believe I did this shit." Sadlowski did not press defendant for additional details.

Shiplee left the bar separately with Zuzulock, and the two also planned to return to Shiplee's and Sadlowski's apartment. They drove by the apartment twice but did not see the car Sadlowski was driving. Zuzulock then decided to go home. After dropping her off, Shiplee returned to her apartment, where she immediately became embroiled in an argument with Sadlowski. When defendant injected himself into the fight, Shiplee said to him, "Fuck you, Rich. You just went out and killed somebody." Shiplee testified at trial that the comment produced "a blank look on his face, like there was no feeling, whatsoever, to the expression on his face, so it was just like what did you just say to me." However, in a prior statement to prosecutors, Shiplee stated that defendant had denied the accusation. Sadlowski also testified that he did not hear Shiplee make the allegation.

Sadlowski thereafter left the apartment to drive defendant home. On the way to the car, defendant engaged in a shouting match with patrons of a bar across the street from the apartment. As defendant and Sadlowski entered the car, defendant volunteered that he "blew the dude's head off." Defendant also lamented to Sadlowski that he "screwed up tonight." At that point Sadlowski thought defendant was referring to the quarrel he had with Zuzulock at the bar. Defendant added, "I can't believe I did this." During the ride home, defendant tearfully explained that "his brains went all over the place" and repeated that "I can't believe I did this shit." Sadlowski dropped defendant off and, vowing not to become involved in any way, avoided defendant after October 6.

3. Events After the Murder

The autopsy revealed that Donaghy died from a single shotgun wound to the head. No defensive wounds existed to suggest that a struggle had occurred. The injury suffered was a "contact" wound, meaning that the barrel of the gun had been placed directly against the skin when fired. Shot into the side of the mouth, the bullet followed a slightly downward trajectory, blowing out Donaghy's teeth and effectively destroying his brain before exiting through the back of his head. At trial, despite defendant's objection, the court allowed the State to employ a mannequin with a needle through its head to demonstrate the trajectory of the bullet. The blood-stained overalls worn by Donaghy on the night of the murder were admitted into evidence.

The murderer stole $191.32 from one of Donaghy's pockets. Because only one of Donaghy's pockets was in plain view as he lay dead on the ground, and because money remained in Donaghy's other pockets that were not exposed, the State theorized that defendant did not take the money until after he killed Donaghy. That supported the State's argument that, before he arrived at the Family Texaco, defendant intended to kill as well as to rob the gas station attendant.

The initial investigation into Donaghy's murder proceeded without much success. On October 31, 1993, Ronald Pine, an attendant at an Amoco station in Deptford, was stabbed to death. On November 1, Amoco offered $5,000 for information leading to the apprehension and conviction of Pine's killer; on November 4, the New Jersey Gas Retailers Association followed with a $5,000 reward for information leading to the arrest and conviction of the murderer of any New Jersey gas station owner or attendant.

Shortly after Pine's murder, Zuzulock mentioned to Shiplee that she noticed a cut on defendant's hand. Suspecting that defendant committed the second murder and suffered the injury in the course of the stabbing, and fearing that he might kill again, Shiplee contacted a lawyer. On November 3, Shiplee's lawyer, Joseph Hoffman, contacted Richard O'Brien of the Franklin Township Police Department. O'Brien then called Shiplee and she gave a statement implicating defendant in both crimes.

Defendant eventually was charged with both murders. The indictments ultimately were severed and no witnesses were permitted to mention the second murder during the trial. The trial court initially ruled that, if impeached by her motive to obtain reward money, Shiplee could testify that her knowledge of the second murder and fear of defendant's future actions prompted her to contact the authorities. The defense therefore did not attempt to question her about the reward during the State's case. The Appellate Division, on interlocutory appeal, reversed the ruling and permitted the impeachment of Shiplee without allowing the prejudicial rehabilitation testimony. A compromise was reached, permitting defense counsel to use the reward offer to show not that it prompted Shiplee to come forward, but that it prompted her to tailor her testimony at trial; in return, she would be able to testify that her fear that defendant might kill again -- without mentioning the second murder -- led her to come forward. The defense then recalled Shiplee and questioned her about the reward.

After Shiplee gave her initial statement to police, an officer contacted Michael Mills and arranged an interview. Mills met with police on November 4, 1993, but his statement was not admitted at trial because of his suicide on June 18, 1994. Before his death, however, Mills did lead authorities to recover the murder weapon. At approximately 1:15 a.m. on November 4, 1993, while driving with investigators from the Gloucester County Prosecutor's Office to his home, Mills and the officers stopped at the White Bridge. Spanning Woodbury Creek, the White Bridge leads into National Park and is located between the Columbia Cafe and the Family Texaco station. The bridge is approximately seven-tenths of a mile from the Columbia Cafe. As a result of their conversation with Mills, police searched for the murder weapon in Woodbury Creek. The following day members of the Camden County Underwater Rescue Team assisted in the search. They recovered a shotgun at the bottom of the creek, later confirmed to be the murder weapon.

Shortly after midnight on November 4, 1993, police simultaneously executed a search warrant and arrest warrant at defendant's home in Woodbury Heights. Defendant was given Miranda warnings at his home before police formally read defendant those warnings at the prosecutor's office. Defendant subsequently signed a waiver form and agreed to submit to police questioning. Investigator Angelo Alvarado of the Gloucester County Prosecutor's Office and a detective from the Deptford Township Police Department began interrogating defendant. The investigators asked defendant about his present employment. Defendant responded that he worked in construction and that his employer was James McCall. Alvarado confronted defendant with the incriminating information that they had received. Defendant then expressed a desire to speak with counsel, and the interview ended. At trial, Alvarado was permitted to testify that defendant's invocation of his right to counsel was the reason that the interview terminated.

The Gloucester County grand jury subsequently indicted defendant, charging him with purposeful-or-knowing murder by his own conduct, in violation of N.J.S.A. 2C:11-3a(1) and/or (2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); first-degree robbery, in violation of N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a; and possession of a sawed-off shotgun, in violation of N.J.S.A. 2C:39-3b. Although not indicted on the conspiracy charges, the trial court charged those crimes as lesser-included offenses. See N.J.S.A. 2C:1-8(d)(2).

At trial, the State presented the testimony of Kevin Wrigley, a/k/a Kevin Bock. Wrigley alleged that he briefly shared the same holding cell with defendant and another individual while defendant was awaiting trial. After Wrigley conceded that the cell had been dark and that he did not recognize defendant in court, defense counsel immediately challenged the admission of Wrigley's testimony. The court conducted a Rule 104 hearing and determined that sufficient indicia of reliability supported admission of the testimony. Wrigley subsequently identified defendant in court, his previous view of the defense table having been partially obstructed. The court observed that the position of the witness stand was such that it hampered a complete view of the courtroom.

While in the cell Wrigley heard defendant, who had identified himself as Rich Feaster, describe how he shot someone in the head at point-blank range in order to "see what it felt like" to kill someone before he entered the Marines. Wrigley also heard defendant admit that he took "a couple hundred dollars" from the scene of the crime. Regarding the murder weapon, Wrigley testified that "[defendant] said he threw it in a lake or something like that, threw it away, got rid of it." Wrigley also maintained that the individual in the cell had a "Rich" tattoo on his arm. As the third occupant of the holding cell left to return to the general prison population, Wrigley heard defendant request that the man tell Mike "Shalusky or something like that" that defendant was in the prison. Additionally, Wrigley testified that defendant described "a guy named Mike" who was also involved in the crime: "[Defendant] says [Mike] was a witness and his dad had him taken care of. He thought he committed suicide or something like that." Wrigley's testimony was not the only occasion on which the jury heard of Mills's suicide; that fact also had been mentioned in the State's guilt-phase opening, during the redirect examination of Daniel Kaighn, and during defense counsel's summation.

The State also presented the testimony of James McCall, the person whom defendant at his interrogation had identified as his employer. McCall testified that defendant worked for him on one day only, which was after the murder, and that he had been paid for that day. McCall further testified that he did not owe defendant any money.

No physical evidence directly linked defendant to Donaghy's murder.

B. Defendant's Case

Defendant did not testify at trial. The primary defense strategy was characterized by a sustained attack on the credibility of key State witnesses. On cross-examination of Daniel Kaighn, defense counsel explored his significant drug use, lengthy criminal record and prior inconsistent statements, as well as the favorable treatment Kaighn received in exchange for his cooperation with the State. Kaighn also admitted having feigned a suicide attempt in order to secure a transfer out of the facility in which he had been incarcerated.

Similarly, the defense highlighted Sadlowski's use of drugs and alcohol, and elicited on cross-examination his admission that he was "hammered" on the night of the murder. He testified that he did not hear defendant's incriminating statement allegedly made near the pool table at the Columbia Cafe; Sadlowski also did not recall Shiplee's accusation made against defendant back at the apartment. The defense also stressed the consideration Sadlowski received from the State for his testimony, and the discrepancies in the three separate statements he had given to authorities.

Shiplee admitted having consumed three or four beers while at the Columbia Cafe, and conceded that she may have smoked marijuana earlier that evening. Shiplee also admitted that the comment she overheard defendant make at the bar could have been a "drunk intoxicated statement." Although she previously testified that a "blank look" came over defendant's face when she accused him of the murder and that defendant uttered no response, on cross-examination Shiplee admitted providing authorities with an earlier contradictory statement. In that statement, Shiplee said defendant denied her accusation. After the Appellate Division decided the interlocutory appeal regarding Shiplee's proposed testimony about her motive for coming forward, the defense recalled her to the stand during its case-in-chief. Rather than focusing on the reward as the motive for her contacting the authorities, the defense stressed her present motive to collect the $5,000 reward. As the reward could be obtained only after defendant's conviction, defense counsel suggested that the money motivated Shiplee to tailor her present testimony against defendant to secure that conviction.

The defense also attacked the credibility of Kevin Wrigley and the accuracy of his testimony. Defense counsel explored Wrigley's criminal history, including his pending charge for aggravated assault stemming from an incident in which he hit an individual over the head with a lead pipe. Regarding defendant's alleged comments about the murder, Wrigley conceded that most jail talk is unreliable "most of the time." The defense also attempted to show that Wrigley could not have shared the same holding cell with defendant, and therefore did not overhear any incriminating statements made by defendant. Shirleen Firman, the deputy warden of the Gloucester County jail, testified that jail records indicated that Wrigley had been removed from the holding cell on November 3, 1995. On cross-examination, the State highlighted the absence of jail records pertaining to defendant. Also elicited on cross-examination were Firman's admissions that the holding cell area was often very busy and that the jail records were not always accurate. The State and the defense stipulated that between January 1995 and December 1995, the only time defendant was housed overnight at the Gloucester County jail was from the afternoon of November 8 through November 9, 1995. The defense supplemented its impeachment of State witnesses by producing an alleged admission of Herrill Washington that he had committed the crime. According to Barrick Wesley, he and Washington had "cased" the Family Texaco during the summer of 1993 in preparation for a possible return to rob the establishment. While in the Salem County jail, Wesley spoke with Washington by telephone on October 5, 1993. Washington allegedly told Wesley that he planned to rob the Texaco station. A few days later, Wesley spoke again to Washington. Wesley testified that during the conversation Washington said he committed the robbery and shot the attendant in the face.

Washington testified at trial and denied the facts about which Wesley had testified. The State theorized that because an unknown informant had incriminated Washington regarding an unrelated burglary, Washington may have made the false incriminating statements to Wesley in an effort to determine whether Wesley was the individual who had been informing on him.

During closing arguments, defense counsel stressed the lack of direct evidence in the case, and attacked the credibility of the State's witnesses. Defense counsel also mentioned Mills's suicide, openly suggesting that Mills and not defendant was the triggerman:

The [S]tate made a better case against Michael Mills than they have against [defendant]. It couldn't be more clear. Who borrowed the car? Michael Mills. Who stopped on the [W]hite [B]ridge? Although we are not privy to the conversations that occurred, the shotgun is pulled from the water. Who? Michael Mills. Who moved the bag out of Shiplee's car? Michael Mills.

The defense also questioned the feasibility of defendant's committing the crime based on the time frame described by some witnesses, and also noted that for some time the murder weapon had been unaccounted for.

The prosecutor focused on the acts indicating premeditation and intent on the part of defendant. Despite scant support in the record, he called Mills the "getaway driver" and described in detail the events that occurred at the Family Texaco and that culminated in Donaghy's murder.

C. The Verdict

During the charge, the court instructed the jury to first deliberate on own-conduct murder before reaching the issue of accomplice liability. Additionally, the court repeatedly reminded the jury that unanimity was required on each charge to constitute a verdict, but that unanimity was not required with regard to the specific form of murder and the question whether defendant committed the murder by his own conduct.

On March 15, 1996, the jury returned a guilty verdict on all counts charged in the indictment. The jury also found defendant guilty of conspiracy to commit murder and conspiracy to commit armed robbery. The jury also found that defendant had killed Donaghy by his own conduct. Thus, the jury's verdict triggered a penalty phase to determine whether a sentence of death would be imposed.

D. The Penalty Phase

The sole aggravating factor alleged by the State was that the murder occurred while defendant was engaged in the commission of a robbery. See N.J.S.A. 2C:11-3c(4)(g). Originally, the State also alleged as an aggravating factor that defendant was a prior murderer, N.J.S.A. 2C:11-3c(2)(e), on the basis that he also had been indicted for the murder of Ronald Pine. Because the State contemplated trying the two cases jointly, the State's intention, in the event of a double conviction, was to use each murder to support a death sentence for the other murder. The trial court disallowed that strategy. Furthermore, the question became moot when the two indictments were severed, and defendant pled guilty to the Pine murder after being sentenced to death for the Donaghy murder. For the second murder, defendant received life imprisonment with a thirty-year parole disqualifier, along with a consecutive sentence of twenty years for first-degree armed robbery with ten years of parole ineligibility. Those sentences were to run consecutively to those imposed for the Donaghy murder.

During its penalty-phase opening and summation, the State stressed that defendant should be made to "accept responsibility" for his actions. The State did not call witnesses during the penalty phase. Rather, it incorporated by reference the evidence presented during the guilt phase, and then rested its case.

Defendant relied on ten mitigating factors:

1. Defendant never had been convicted of a crime and had never been incarcerated previously.

2. Defendant was twenty-two and not fully matured at the time of the crime.

3. Defendant suffered one or more head traumas resulting in an organic brain condition that affected his judgment and impulse control to the [extent] that normal people are not affected.

4. Defendant's ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease and/or defects and emotional disturbances and intoxication.

5. Defendant was raised in a household with one alcoholic parent, which predisposed him to substance abuse and delinquent behavior, undermining the controls normally present in others.

6. Defendant was raised in a home with an emotionally and physically abusive father, substantially affecting his maturation and development, with the effect, among others, of predisposing him to delinquent and violent behavior to the extent normal adults are not so predisposed.

7. Defendant had an excellent work record while living in Florida, away from the turmoil of his family, which was interrupted only by a work-related injury.

8. Defendant was a successful athlete during adolescence and high school, responding well to coaching and discipline.

9. Defendant's success under coaching and sports and in working in an environment away from the turmoil of his family demonstrated that he could be rehabilitated in a regimented environment such as prison.

10. Any other factor that the jurors, or any one of them, may deem relevant to defendant's character or record or to the circumstances of the offense.

Defendant presented the testimony of several experts. Dr. Steven Portman, a neurologist, described abnormally excessive electrical activity in the left frontal lobe of defendant's brain. He testified that people with that condition tend to be impulsive and have memory problems. Dr. Jonathan Willard-Mack, a clinical neuropsychologist, also testified that injuries to the left frontal lobe affect one's ability to control impulses. He diagnosed defendant as suffering from encephalopathy, or brain injury, as a likely result of a series of concussions. The alleged head injuries sustained by defendant were caused by a fall from a pickup truck, an incident in which defendant was injured when his head hit a tree, and repetitive impacts incurred during his football career. Dr. Frank Dyer, a psychologist, described defendant as possessing borderline intelligence. He testified that the alcoholic and abusive household in which defendant was raised was a traumatic environment, but expressed the view that therapy could help defendant. Dr. Robert Latimer, a psychiatrist, also testified that defendant's ability to control impulses was compromised by encephalopathy, but that he could be helped through psychotherapy and counseling.

Defendant's mother testified that defendant's father was an alcoholic who verbally abused her and defendant. As defendant grew older, physical altercations between him and his father were common. Amy Feldman, a social worker, described the Feaster home as one "in denial," in which Mrs. Feaster and defendant were abused. Two jurors accepted the third mitigating factor, that defendant suffered a judgment-impairing organic brain disorder resulting from head traumas. Five jurors accepted the factor that defendant's father was physically and emotionally abusive, and three jurors found the ninth factor, that based on defendant's work record in Florida and his high school athletic experience he was amenable to rehabilitation in prison. The jury unanimously rejected the remaining mitigating factors. The jury also concluded unanimously that the sole aggravating factor outweighed beyond a reasonable doubt any mitigating factor or factors, thus resulting in defendant's death sentence. In his subsequent motion for a new trial, defendant advanced numerous bases for the requested relief, all of which were denied by the court.


Sequential Presentation of Own-Conduct Murder and Accomplice-Liability Murder and Allegedly Inconsistent Instructions on Own-Conduct Nonunanimity Option

We address this claim first because it implicates the central issue raised on defendant's appeal.

Perceiving that a rational basis existed to support a jury finding that defendant, despite participating in the crime, did not commit the murder "by his own conduct," N.J.S.A. 2C:11-3c, the court provided an accomplice-liability charge to the jury. The presentation of the own-conduct murder charge and the accomplice-liability charge, and the relationship between the two, is of critical importance because own-conduct murder is punishable by death but accomplice-liability murder is not. N.J.S.A. 2C:11-3(c); see also State v. Gerald, 113 N.J. 40, 100 (1988)(noting, with sole exception of murder for hire, "a defendant whose conviction is based on a theory of vicarious liability cannot be subjected to death-penalty proceedings").

Defendant argues that the court's sequential presentation of own-conduct murder and accomplice-liability murder, and its admonition to the jury that it reach the accomplice liability question only after first acquitting on own-conduct murder, effectively relegated the non-death-eligible option to second-class status. In other words, defendant contends that the rigid sequencing of the charge and deliberations improperly coerced the jury into reaching a death-eligible verdict.

Additionally, defendant focuses on the court's repeated instruction that the jury be unanimous with regard to all issues, while at the same time informing the jury that it need not be unanimous on the "own-conduct" question. Defendant contends that those contradictory instructions left the jury "hopelessly confused," leading the jurors to believe that they had to be unanimous on the own-conduct determination in order to return a valid murder conviction.

A. Sequential Presentation of Own-Conduct Murder and Accomplice-Liability Murder

The court first charged the jury on the elements of purposeful-or-knowing murder, during which it did not mention the question whether defendant committed the murder by his own conduct. After charging on the lesser-included offenses of aggravated manslaughter and reckless manslaughter, the court instructed on accomplice liability, tailoring its charge to fit the facts of the case:

In this case the State contends that the defendant . . . committed the offenses for which he is charged, the murder, the felony murder, the robbery, I'm talking about those in particular right now, against Keith Donaghy by his own conduct.

If you are convinced of that beyond a reasonable doubt, then you need not consider the alternative type of culp[a]bility or responsibility, that is, where a defendant may be found guilty of an offense because of the conduct of another person for whom he is legally accountable.

This is accomplice liability. If you find that the actual crimes were committed by the conduct of another person, who I will refer to throughout this portion of my instructions simply as X, [it] could be any other person, then you will consider whether the defendant shall be found guilty because he is legally accountable as an accomplice of X. You've heard about Michael Mills and it could be anyone.

If you are not convinced beyond a reasonable doubt that the defendant acted by his own conduct in committing these crimes, then you may consider and should consider whether he should be found guilty of them because of being legally accountable as an accomplice of some other person, and you'll only consider these instructions on accomplice liability if you first determine that he is not directly responsible by his own conduct.

The court repeated this description of the sequential relationship between own-conduct murder and accomplice liability on at least three other occasions during its instructions.

There is nothing inherently wrong with sequential charges, which "usually provide a framework for orderly deliberations." State v. Cooper, 151 N.J. 326, 369 (1997)(quoting State v. Coyle, 119 N.J. 194, 223 (1990)); State v. Zola, 112 N.J. 384, 405 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Indeed, for courts to instruct juries not to consider lesser-included offenses unless they first acquit on the greater charge is a common practice. Cooper, supra, 151 N.J. at 366; Coyle, supra, 119 N.J. at 223; State v. McAllister, 211 N.J. Super. 355, 365 (App. Div. 1986); see also State v. Harris, 141 N.J. 525, 552-53 (1995)(explaining that rationale supporting sequential charge is to have jury convict of offense supported by evidence as opposed to reaching compromise verdict); State v. Perry, 124 N.J. 128, 164-65 (1991)(approving sequential charge for non-felony-murder offenses); People v. Boettcher, 505 N.E.2d 594, 597 (N.Y. 1987)(approving sequential charge for lesser-included offense, noting that contrary rule would "give insufficient weight to the principle that it is the duty of the jury not to reach compromise verdicts . . . but to render a just verdict by applying the facts it finds to the law it is charged").

However, the propriety of a sequential charge becomes suspect in certain capital cases when a jury is presented with an alternative non-death-eligible form of murder rather than a traditional lesser-included offense. In such instances, we have repeatedly expressed our concern about the coercive effect a sequential charge may have on a capital jury. Prompting that concern is our belief that a sequential charge may cause a jury "that believes a defendant guilty of something to convict on the first and most serious charge" without giving due consideration to the non-death-eligible offense. State v. Mejia, 141 N.J. 475, 484 (1995); see also State v. Purnell, 126 N.J. 518, 530 (1992) (vacating death sentence where jury was not permitted to consider "all of the possible offenses"); Cannel, New Jersey Criminal Code, Annotated, comment 14 on N.J.S.A. 2C:1-8(e)(1997) ("[I]n a capital case, where there is support in the evidence for a non-capital murder conviction, the jury must be given every opportunity to convict of the charge not carrying the death penalty."); cf. United States v. Tsanas, 572 F.2d 340, 345 (2d Cir.)(noting that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.")(quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1997, 36 L. Ed. 2d 844, 850 (1973)), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978).

In Mejia, supra, we considered a defendant's challenge to a sequential charge and verdict sheet that effectively required the jury to first acquit on purposeful-or-knowing murder before reaching the question whether defendant purposefully or knowingly caused serious bodily injury resulting in death. 141 N.J. at 482. At the time of the defendant's crimes in Mejia, "serious-bodily-injury" murder was not punishable by death. Gerald, supra, 113 N.J. at 89. Constitutional and statutory amendments have since made serious-bodily-injury murderers eligible for the death penalty. N.J. Const. art. I, para. 12; L. 1993, c. 111 (signed May 5, 1993); Mejia, supra, 141 N.J. at 482.

We found that the sequential charge in Mejia constituted one of the "crucial defects" in the court's instructions that required reversal of the defendant's death sentence. Id. at 483-84. Noting that serious-bodily-injury murder is an alternative form of homicide rather than a lesser-included offense of "intent to kill" murder, id. at 484, we observed that the court's treatment of serious-bodily-injury murder as a lesser-included offense "reduced the likelihood that the jury would consider whether defendant intended to cause only serious bodily injury." Id. at 485.

In Coyle, supra, 119 N.J. at 209-12, we reversed a death sentence primarily because of the trial court's failure to provide the charge on serious-bodily-injury murder formerly required by Gerald, supra, 113 N.J. at 92. Nevertheless, we also found harmful error in the court's sequential charge on purposeful murder and passion/provocation manslaughter, Coyle, supra, 119 N.J. at 222-23, observing that the sequential charge "had the potential to foreclose jury consideration of whether passion/provocation should reduce an otherwise purposeful killing from murder to manslaughter." Id. at 222.

In our most recent decision regarding sequential charges in capital cases, we relied on the unique nature of felony murder in upholding a trial court's sequential presentation of capital murder and felony murder. Cooper, supra, 151 N.J. at 369-70. We acknowledged that felony murder is not a traditional lesser-included offense because its elements may differ from those of capital murder. Id. at 365; Purnell, supra, 126 N.J. at 531. Nevertheless, we noted Purnell's admonition that in a capital case in which the State relies on the commission of a felony (robbery) as an aggravating factor, that reliance affirms the existence of "a rational basis for the jury to choose the death-ineligible option of finding defendant guilty of felony murder," id. at 532, and that accordingly felony murder should be treated as a lesser-included offense in determining what crimes to submit to the jury. Id. at 530-31; Cooper, supra, 151 N.J. at 365. Analytically, therefore, we regarded felony murder as a lesser-included offense in assessing the propriety of a sequential charge in that context. Cooper, supra, 151 N.J. at 366.

In upholding the court's sequential presentation of capital murder and felony murder, Cooper distinguished felony murder from the passion/provocation manslaughter offense implicated in Coyle. When evidence of passion/provocation manslaughter is produced, in order to obtain a conviction for murder the State must prove beyond a reasonable doubt that the purposeful killing was not the product of passion based on reasonable provocation. State v. Powell, 84 N.J. 305, 314-16 (1980). In that sense, the mental states for a purposeful killing and passion/provocation manslaughter "were interrelated." Cooper, supra, 151 N.J. at 369. Conversely, felony murder is a strict-liability crime. Id. at 369-70. Thus, because "there is no connection between the required mental state for purposeful-or-knowing murder and that for felony murder," id. at 369, we sustained a sequential charge of capital murder and felony murder. Id. at 370.

The threshold issue is whether accomplice-liability murder is an alternative theory of murder that should be considered simultaneously with death-eligible purposeful-or-knowing murder.

When the Legislature enacted the New Jersey Death Penalty Act (Act), L. 1982, c. 111, it "resurrect[ed] the distinction between a principal and an accomplice" in determining whether a defendant is a candidate for the death penalty. State v. Brown, 138 N.J. 481, 509 (1994)(quoting Gerald, supra, 113 N.J. at 93). Pursuant to N.J.S.A. 2C:11-3c, a person found guilty of murder is eligible for the death penalty only if he murdered by his own conduct, procured the murder by payment or promise of payment of anything of pecuniary value, or commanded or by threat or promise solicited the murder as the leader of a narcotics trafficking network. However, the own-conduct requirement is unrelated to the State's burden of proof to obtain a conviction of purposeful-or-knowing murder:

The requirement that the homicidal act be committed by the defendant's own conduct is simply irrelevant to the question of whether defendant is guilty of purposeful or knowing murder. During guilt-phase proceedings, the jury first must determine whether defendant should be convicted of murder, considering, where appropriate, principles of vicarious liability under N.J.S.A. 2C:2-6. Only after it has unanimously found defendant guilty of purposeful or knowing murder should the jury turn to the question of whether defendant committed the homicidal act by his or her own conduct.

[Gerald, supra, 113 N.J. at 100.]

Thus, the own-conduct requirement is not an element of purposeful-or-knowing murder; it acts solely as a "trigger" with regard to whether a death-penalty phase of a trial will occur. Brown, supra, 138 N.J. at 510; State v. Moore, 207 N.J. Super. 561, 576 (Law. Div. 1985); see also Gerald, supra, 113 N.J. at 93 ("The legislative history of the Act makes it clear . . . that in enacting N.J.S.A. 2C:11-3(c), the Legislature intended to distinguish, for purposes of punishment only, a murderer who actually killed -- the `triggerman' -- from one whose conviction rests on a theory of vicarious liability . . . .")(emphasis added); see also N.J.S.A. 2C:2-6a ("A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.").

Therefore, because both principal and accomplice are equally guilty of purposeful-or-knowing murder under New Jersey's statutory scheme, accomplice-liability murder is an alternative and not lesser-included form of murder. See Mejia, supra, 141 N.J. at 484 (noting that because one who intends not to cause death but serious bodily injury that results in death is still a murderer, "serious-bodily-injury murder is an alternative form of homicide, not a lesser-included offense of `intent to kill' murder"); cf. Cooper, supra, 151 N.J. at 369 (distinguishing felony murder, because no connection links the required mental states for purposeful-or-knowing murder and felony murder); Coyle, supra, 119 N.J. at 221 (noting that "a purposeful killing can be either murder or passion/provocation manslaughter"). We reaffirm our adherence to the proposition that when a rational basis exists for a jury to convict a capital defendant of a non-death-eligible alternative form of homicide, a trial court should charge that offense in a manner that allows the jury to consider it simultaneously with death-eligible purposeful-or-knowing murder. That requirement affords us the necessary assurance that a capital jury has properly considered all available options before rendering a death-eligible verdict, an important safeguard in light of the "qualitative difference between the death penalty and other penalties." Brown, supra, 138 N.J. at 511 (quoting State v. Bey, 112 N.J. 123, 156 (1988) (Bey II)).

Here, the court explicitly told the jury on at least four separate occasions that it did not have to consider accomplice liability unless it first acquitted of own-conduct murder. Presented in that manner, the instructions improperly focused the jury's attention on the State's theory of the case and "had the potential to foreclose jury consideration," Coyle, supra, 119 N.J. at 222, of the non-death-eligible alternative. Moreover, the sequential instructions, standing alone, effectively required the jury to reject own-conduct murder in order to reach accomplice liability. That framework contravened our holding in Brown, supra, 138 N.J. at 509-22, that the own-conduct determination may be nonunanimous, in which event the penalty phase would be avoided.

The finding of error does not end our inquiry. Rather, "[o]ur assessment of the prejudicial capacity of a sequential charge is grounded in the 'circumstances of the case.'" Mejia, supra, 141 N.J. at 484 (quoting Zola, supra, 112 N.J. at 406). Here, because defendant did not object to the instructions at trial, we must determine whether the court's improper sequential charge was plain error possessing the clear capacity to bring about an unjust result. See R. 2:10-2; State v. Harvey, 151 N.J. 117, 153 (1997); State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970);

We are fully satisfied that under the circumstances presented by this record any error in the court's sequential presentation of own-conduct murder and accomplice-liability murder was harmless. We ground this Conclusion on the practical realization that based on the facts of this case, the alternatives of own-conduct murder and accomplice-liability murder presented the jury with one indivisible issue to resolve. Because only one individual pulled the shotgun's trigger, the jury's assessment of the own-conduct issue also served as the functional equivalent of a simultaneous deliberation on accomplice liability. The court made clear to the jury that the State had to prove beyond a reasonable doubt that defendant committed the murder by his own conduct. Thus, the jury's finding beyond a reasonable doubt that defendant was the shooter necessarily reflected its consideration and rejection of the alternative theory of defendant as accomplice. Although the ideal instruction would have expressly required the jury to consider both theories simultaneously, we do not perceive any likelihood that the court's instructions affected the outcome of the jury's deliberations.

Moreover, a fair reading of the record reveals that defense counsel considered the jury's resolution of the own-conduct issue to constitute a simultaneous deliberation on accomplice-liability murder. During the court's review of the verdict sheet with the jury, the State noted the lack of a specific accomplice-liability option on the verdict sheet and asked the court to highlight that issue:

[State]: [Y]ou have charged them about accomplice liability, but nowhere on here -- and saying he can either be guilty of murder [as a principal] or of murder as an accomplice, yet its not been -- it's not on the verdict sheet as a choice. So, it may be confusing to them.

[Defense]: I object to that, your honor.

[State]: Where that is applicable, the accomplice liability is applicable.

[Defense]: I think you explained it. To highlight it now it suggests, I feel, it's the proper verdict. I think it's been properly explained to them. The verdict sheet properly reflects it and I strenuously object.

The Court: I think you're right. I think it's been explained clearly and I think that's implicit and clear in the own conduct portion.

Defense counsel's objection is most likely indicative of a trial strategy aimed at avoiding a compromise verdict and securing a complete acquittal for defendant. Nevertheless, the clear implication remains that defense counsel considered the own-conduct question to encompass adequately the issue of accomplice liability.

In view of our Conclusion that the sequential charge did not prejudice defendant, we need not address the State's contention at oral argument that there was not a rational basis in the evidence for the court to instruct the jury on accomplice-liability murder. Indeed, the rational-basis test poses a low threshold for a defendant to meet. Mejia, supra, 141 N.J. at 489 (citing State v. Crisantos, 102 N.J. 265, 278 (1986)); Harris, supra, 141 N.J. at 549. However, we note the lack of evidence in this record supporting the Conclusion that anyone other than defendant was the principal actor in this murder. Defendant borrowed the gun from Kaighn and stored it in Shiplee's trunk. On the night of the murder, he pursued several other possible rides from the Columbia Cafe before leaving with Mills -- suggesting that whoever drove with defendant was unimportant to the execution of defendant's plan. Most importantly, defendant's inculpatory statements on multiple occasions revealed his status as the triggerman. Conversely, aside from the fact that Mills accompanied defendant from the Columbia Cafe, no evidence adduced at trial suggested that he played more than a minor role in the murder of Keith Donaghy.

In capital cases that present a jury question whether a defendant is guilty of death-eligible own-conduct murder or accomplice-liability murder, the trial court, after instructing the jury on the requisite elements of the charged offenses, should instruct the jury first to determine whether the defendant is guilty of purposeful-or-knowing murder. See Gerald, supra, 113 N.J. at 100. The jury should be instructed that only if it unanimously reaches a guilty verdict on that offense should it then determine whether the defendant committed the murder "by his own conduct" or, alternatively, as an accomplice, the charge emphasizing that because those alternatives are mutually exclusive the jury should consider them simultaneously. During the course of its instructions, the court should make clear to the jury that it need not be unanimous on the own-conduct determination, and it must inform the jury of the legal consequences of its own-conduct finding. Brown, supra, 138 N.J. at 514.

We emphasize that the jury's initial determination of guilt or innocence on the charge of purposeful-or-knowing murder is not intended to resolve whether the defendant acted as principal or accomplice. Only subsequent to a guilty verdict of purposeful-or-knowing murder will the jury specifically consider what form of murder -- accomplice liability or own conduct -- supports the murder conviction. Our case law supports that view of the jury's deliberations. See, e.g., Mejia, supra, 141 N.J. at 486-87 (suggesting that whether defendant intended to cause death or serious bodily injury resulting in death be considered after initial finding of guilt on unspecified form of murder); Brown, supra, 138 N.J. at 519 ("We do not accept the State's premise that to convict defendant of purposeful or knowing murder, the jury was required unanimously to agree that the State had proved a specific theory of liability beyond a reasonable doubt."); State v. Parker, 124 N.J. 628, 633-34 (1991)(recognizing jury unanimity on theory of defendant's guilt is not required), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992).

B. Jury Knowledge of Nonunanimity Option

Defendant asserts that inconsistent instructions regarding the need for unanimity left the jury confused and under the impression that it had to be unanimous on the own-conduct determination to return a valid murder conviction. In addition to the sequential charge on accomplice-liability murder, the court consistently emphasized the need for jury unanimity:

As I previously instructed, any verdicts rendered must be unanimous on any of these charges, whether it be murder, aggravated manslaughter, reckless manslaughter, [or] accomplice liability. Your verdicts must be 12 to 0 to be a verdict. I'm going to give you further instructions on that as we go along. All 12 jurors must agree that he's either guilty or not guilty of any one of the charges that you are considering.

The court reminded the jury of the need to be unanimous on at least three other occasions during its charge. Nonetheless, the court also made clear that the specific form of murder and the own-conduct determination were "special findings" that need not be unanimous:

If you have a reasonable doubt as to whether the killing was by his own conduct or if you are unable to reach a unanimous decision beyond a reasonable doubt as to whether the defendant committed the murder by his own conduct, as distinguished from being responsible for it as an accomplice, that is a permissible final verdict on this issue and that, again, would result in the imposition of a mandatory sentence for murder of at least 30 years in prison, up to life, but at least 30 [years] without parole.

After reminding the jury that it had to be unanimous with regard to its verdicts, the court again stressed the acceptability of a nonunanimous own-conduct determination near the end of its instructions:

As to the special questions that I've already discussed with you and which I'll go over with you again on the verdict sheet, not as to guilty or not guilty, but the special questions, regarding the specific form of murder, if you find the defendant guilty of murder, and regarding the by his own conduct question, if you have found him guilty of murder and if it becomes appropriate for you to reach that question, those do not have to be unanimous, as I already explained to you.

The verdict sheet reiterated that direction. In pertinent part, it read:


a. BY HIS OWN CONDUCT --------------/______/(Case will proceed to penalty phase for a decision by you as to whether the punishment is death or imprisonment for at least 30 years.)

b. NOT BY HIS OWN CONDUCT OR UNABLE TO AGREE UNANIMOUSLY ON "a"------------------/______/(Defendant will receive a mandatory sentence of at least 30 years in prison without parole.)

The court also made the permissibility of a nonunanimous own-conduct determination clear when it reviewed the verdict sheet with the jury:

[M]aybe you all agree on [own conduct] or that you're unable to agree unanimously whether it was by his own conduct or not beyond a reasonable doubt and that's okay if that's your finding and if you make that finding, regardless of whether it's 11 to 1 or 6 to 6 one way or the other, we're not asking what the vote would be, but if that's your finding then you would check that, that you either concluded that it was not by his own conduct or that you're simply unable to unanimously agree whether it's been proven beyond a reasonable doubt that it was by his own conduct and if that's your finding, then he's still guilty of murder and he would still get the minimum mandatory prison sentence of at least 30 years without parole, but the case would not go into a second phase for determination of [a] possible death penalty.

After reviewing that aspect of the verdict sheet, the court added:

"That's the murder part. Is there anybody, if it's unclear tell me. If after you're deliberating there's something unclear with this or anything else let me know and I'll bring you out and try to reexplain it, try to clear it up."

A charge "is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." Brown, supra, 138 N.J. at 522 (quoting State v. Martin, 119 N.J. 2, 15 (1990)). We regard clear and accurate instructions as an essential ingredient of a fair trial. See e.g., Brown, supra, 138 N.J. at 522 (citing State v. Martini, 131 N.J. 176, 271 (1993), and Martin, supra, 119 N.J. at 15). In the context of a capital case, adequate instructions are crucial in view of "the jury's responsibility to determine whether a defendant will live or die." Mejia, supra, 141 N.J. at 487 (quoting Bey II, supra, 112 N.J. at 162). Moreover, clearly erroneous instructions usually are considered "poor candidates for rehabilitation under the harmless error philosophy." Brown, supra, 138 N.J. at 522 (quoting State v. Harmon, 104 N.J. 189, 213 (1986)); State v. Simon, 79 N.J. 191, 206 (1979).

In Brown we concluded that jury unanimity was required for the State to prove beyond a reasonable doubt that a defendant committed a murder by his own conduct. 138 N.J. at 510-11. Conversely, "unanimity is not required to support a verdict that a defendant guilty of murder did not commit the murder by his own conduct." Id. at 511. We grounded this distinction on our recognition of the qualitative difference between a death sentence and imprisonment, and on our acceptance of the principle that "non-unanimous findings should be given legal effect when those findings weigh in favor of the imposition of a life sentence" rather than the death penalty. Ibid. (citing Bey II, supra, 112 N.J. at 156). When a jury is unable to agree unanimously that a defendant committed a murder by his own conduct, that constitutes a valid final verdict resulting in a mandatory sentence of at least thirty years' imprisonment under N.J.S.A. 2C:11-3b. Ibid.

In Brown, the trial court omitted an instruction informing the jury that nonunanimity on the own-conduct determination was permissible and would constitute a valid verdict. Id. at 514-16. Additionally, the court told the jury that if it was unable to agree unanimously that defendant committed the murder by his own conduct, it instead had to be unanimous that defendant committed the murder as an accomplice or co-conspirator. Id. at 514. Because the facts in Brown indicated that there was a basis for finding that the defendant had not committed the murder by his own conduct, "the failure to inform the jury that it had the option of returning such a [nonunanimous own-conduct] verdict was clearly capable of prejudicing defendant." Id. at 526.

We are satisfied that this court's instructions and the verdict sheet adequately imparted to this jury its ability to be nonunanimous on whether defendant committed the murder by his own conduct. Concededly, the court stressed the nonunanimity option near the end of its instructions, only after having focused the jury's attention on the need to be unanimous with regard to each of the underlying offenses.

However, unlike Brown, in which the jury remained uninformed about its ability to be nonunanimous on the own-conduct issue, id. at 514, the court here on at least three separate occasions stressed to the jury that it had the option to return a non-unanimous own-conduct verdict. That contingency also was set forth clearly on the verdict sheet. Moreover, the court told the jury that the return of a nonunanimous own-conduct verdict would result in a valid murder conviction carrying a sentence of at least thirty years in jail. Rather than isolate certain aspects of the instructions, we are obligated to view the charge as a whole. State v. Delibero, 149 N.J. 90, 106 (1997); State v. Ramseur, 106 N.J. 123, 280 (1987), aff'd sub nom. Ramsuer v. Beyer, 983 F.2d 1215 (3d Cir. 1992), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993); State v. Wilbely, 63 N.J. 420, 422 (1973). Doing so here, we are unable to conclude that the charge was "clearly capable of misleading the jury." Brown, supra, 138 N.J. at 526 (quoting Harmon, supra, 104 N.J. at 213). We are confident that this jury was not confused concerning its ability to return a nonunanimous own-conduct finding.


Publicity and Pretrial Issues

A. Impanelment of Salem County Jury, Midtrial Voir Dire, and Post-verdict Polling of the Jury

Defendant advances a three-pronged attack on the trial court's responses to the risk that prejudicial publicity affected the integrity of the jury's verdicts. Defendant contends that the court abused its discretion by impanelling a jury from Salem County instead of Cumberland County; that it committed reversible error by failing to conduct individualized voir dire regarding the jury's exposure to midtrial publicity; and that it erred by not individually polling the jurors after the death sentence about their knowledge of the other murder with which defendant was charged.

Unlike our recent decision in State v. Harris, __ N.J. __ (1998), this case does not involve saturated media coverage creating a presumption of prejudice to a defendant. See State v. Koedatich, 112 N.J. 225, 273 (1988)(Koedatich I), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Biegenwald, 106 N.J. 13, 33 (1987)(Biegenwald II). Where a presumption of prejudice has arisen in a capital case, the appropriate response is to transfer the trial to another county. Harris, supra, __ N.J. at __ (slip op. at 3).

Rather, defendant here raises a more discrete claim attacking the sufficiency of the measures the court adopted to prevent prejudice. Although defendant concedes that impanelment of a Salem County jury reduced the level of prejudice against defendant, he argues that the court's duty was to minimize prejudice, an obligation that would have been effectuated if the court selected jurors from Cumberland County. As noted, defendant was to be tried separately for the October 31, 1993 stabbing death of Ronald Pine, another gas station attendant. Much of the media coverage, although factual and not inflammatory in nature, contained references to the second murder. That reporting was contained primarily in The Philadelphia Inquirer (Philadelphia and southern New Jersey), The Courier Post (Burlington, Camden, and Gloucester Counties), The Gloucester County Times (Gloucester County), and Today's Sunbeam (Salem County). Recognizing the obvious prejudice to defendant if jurors with knowledge of his implication in the second murder sat on the jury, the trial court began jury selection in Gloucester County believing that voir dire would eliminate those with knowledge of the second murder.

Problems associated with Gloucester County jury selection soon became apparent. Most significantly, it was difficult to determine whether potential jurors knew of the second murder without asking the question directly. Defendant moved for a change of venue. Citing the relatively limited and non-inflammatory coverage of the murders, and because the coverage was concentrated some two years prior to jury selection, the court denied the motion without prejudice. However, the court's faith in the Gloucester County jury pool was soon undermined. A number of jurors who were excused for other reasons revealed during post-dismissal questioning their knowledge of the second murder. The indirect manner in which voir dire attempted to elicit a potential juror's knowledge of the second murder obviously was ineffective. After conducting extensive voir dire in Gloucester County over several weeks, the court halted jury selection:

It's my Conclusion based upon between 150 and 200 jurors that have been interviewed that I cannot satisfy myself as the individual who is vested with this broad discretionary power and upon whom a reviewing court would rely to a significant extent and pay significant deference to in determining whether or not the voir dire was able to assure the selection of an impartial jury.

I cannot say that I have sufficient confidence in the results of this voir dire to be so assured. As probing as it's been, with the considerable efforts of counsel on both sides, as well as by this Court, I simply do not have the confidence level that I feel I should have to be assured that this process will yield a fair and impartial jury, consisting of no one who is likely to have heard about the other murder and this defendant's implication in it.

There have been a number of jurors, prospective jurors, who were very close to being qualified, who almost offhandedly or as an afterthought acknowledged that they knew something about the other murder. Sometimes it was vague information.

The fact that in every article without exception, although the number of articles has not been that great, it really hasn't, but the fact that in every article these 2 cases have been linked and the results of the publicity come through to me with these prospective jurors, that there is a pervasive knowledge among the citizens of this county that the same person is charged in these 2 gas station murders, they're just linked, from the day he was arrested they've been linked, because I cannot ask detailed enough questions, nor can counsel, to ferret out that information with reasonable assurance, because by going too far with pointed questions prejudice would be created and because of that it is my Conclusion that the motion for a change of venue should be granted, in order to avoid the likelihood of prejudice to the defendant resulting from pretrial publicity.

After concluding that a change of venue was necessary, the court stated that a further decision would be made regarding whether to move the trial or simply impanel a foreign jury to sit in Gloucester County. Defense counsel expressed no preference for one option over the other, explaining that "[t]he issue is the purity of the jurors we get, not where the court is held." The court accepted that concession and, taking into account the convenience to witnesses, family members and attorneys, concluded that a foreign jury would be impanelled to hear the case in Gloucester County.

Defendant contended that the proper choice would be a jury from Cumberland County, because media penetration there was less intensive than in surrounding counties. The court, however, relying on the Appellate Division's decision in State v. Harris, 282 N.J. Super. 409 (1995), concluded for several reasons that Salem County would be the source of the foreign jury. Although the murders were the subject of more press coverage in Salem County than in Cumberland County, the court observed that the articles published in Salem County's Today's Sunbeam were shorter, fewer in number, and less prominently placed than articles in the other papers. Additionally, the court noted that Salem County possessed a reserve juror panel sufficient to satisfy the court's need for a large jury pool, whereas Cumberland County would have required several months to assemble an adequate pool. Moreover, the demographic makeup of Salem County approximated that of Gloucester County more closely than Cumberland County.

Finally, the court determined that because of the possibility of a second trial for the Ronald Pine murder, Cumberland County should be reserved for that case. The court reasoned that in view of its closer link to Gloucester County, Salem County would experience publicity no matter where the first trial was held. Thus, Salem would be a problematic location for a second trial. Conversely, holding the first trial in Gloucester County with a Salem County jury would be unlikely to result in significant publicity in Cumberland County, which is more detached from newsworthy events in Gloucester County, thereby preserving Cumberland for the possible second trial.

Because a criminal defendant is guaranteed the right to an impartial jury, Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961), a trial court must observe significant precautions to minimize adverse pretrial and midtrial publicity that is capable of affecting juror perception of the case. State v. Williams, 93 N.J. 39, 63 (1983) (Williams I). Whether a "realistic likelihood of prejudice from pretrial publicity," id. at 67-68 n.13, exists is the standard to be applied by trial courts in resolving what precautionary measures to take. Available options include a change of venue, selection of a foreign jury, and augmentation of the jury pool. Id. at 67; Biegenwald II, supra, 106 N.J. at 32; see also R. 3:14-2 (authorizing change of venue or foreign jury if "a fair and impartial trial cannot otherwise be had"). A court must also conduct adequate voir dire to guard against the dangers of hidden bias. Williams I, supra, 93 N.J. at 68; Biegenwald II, supra, 106 N.J. at 32 (noting that "searching voir dire examinations" are means of protecting defendant's constitutional rights). We place great reliance on a trial court's voir dire examinations in determining a juror's actual bias. Koedatich I, supra, 112 N.J. at 274 (citing Patton v. Yount, 467 U.S. 1025, 1038-39, 104 S. Ct. 2885, 2892-93, 81 L. Ed. 2d 847, 858 (1984)).

In criminal prosecutions in which the level of pre-trial publicity does not justify a trial court in presuming prejudice to the defendant, we ordinarily will affirm a trial court's determinations regarding appropriate prophylactic measures unless they constitute an abuse of discretion. See State v. Marshall, 123 N.J. 1, 76 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Here, the trial court relied on Harris, supra, 282 N.J. Super. at 421, an Appellate Division decision that adopted the American Bar Association's recommended test to determine the source of a foreign jury or the appropriate venue. That test is comprised of five factors:

(1) The nature and extent of pretrial publicity, if any, in the proposed venue;

(2) The relative burdens on the respective courts in changing to the proposed venue;

(3) The relative hardships imposed on the parties, witnesses, and other interested persons with regard to the proposed venue;

(4) The racial, ethnic, religious and other relevant demographic characteristics of the proposed venue, insofar as they may affect the likelihood of a fair trial by an impartial jury;

(5) Any other factor which may be required by the interests of Justice.

[Ibid. (quoting Criminal Justice Standards: Trial by Jury ABA Criminal Justice Section Standard 15-1.4 (3d ed. 1993)).]

We are confident that impanelment of a Salem County jury was an appropriate exercise of the court's discretion. First, as this was not a case of sustained, inflammatory publicity, see Harris, supra, __ N.J. at __ (slip op. at 19-20), defendant concedes that a change of venue was not mandatory. Although Salem County was shown to have a higher level of publicity than Cumberland County, it was by no means inundated with publicity about the murders. Also, Cumberland County's lack of a large reserve juror pool weighed in favor of impanelling a Salem County jury. Additionally, the demographic makeup of Salem more closely reflected that of Gloucester County. The court meticulously identified and discussed each relevant factor and concluded that Salem County was the appropriate source for defendant's jury. We agree.

Moreover, the searching voir dire conducted by both the court and counsel in Salem County reassures us that the jury considering defendant's case was fair and impartial. In addition to filling out a thirteen-page questionnaire, each potential juror who revealed his or her familiarity with either the defendant or any facts of the case was automatically excused. The court took that extra precaution even though we have not mandated automatic excusal for jurors whose impartiality is intact but who may have been exposed to publicity about some aspects of a pending prosecution. Marshall I, supra, 123 N.J. at 77. In sum, we have no reason to believe "that any juror was so tainted by pretrial publicity as to affect the deliberative process." Id. at 78.

During the trial itself, the court continuously admonished the jury to avoid any exposure to publicity about the case. The following comment is representative of the court's reminders to the jury:

Continue please, to follow the instructions that I've given you all along. Do not discuss this case. Do not read anything about it. There's been quite a bit of coverage of this case. Be sure if you want to read the papers you have someone screen those papers for you ahead of time and pull out or cut out any articles that deal with this case in any way directly or indirectly.

Additionally, on one occasion during the penalty phase the court stated on the record that it ordered sheriff's officers to place themselves in front of a newspaper vending box that contained a newspaper with a headline about the case.

On at least three instances during the trial defense counsel requested individualized voir dire to determine whether jurors were exposed to prejudicial publicity. The court declined in each instance, choosing instead to conduct a collective voir dire of the jury. None of the jurors volunteered that they had heard or read anything about the case.

During the penalty-phase deliberations, defense counsel requested that the court conduct individualized voir dire after the return of a verdict, and to ask each juror directly whether they had received any information about the second murder, either before or during the trial. The court denied this request, characterizing it as "speculative and not a realistic possibility." The court discharged the jury without having inquired, either individually or collectively, about their knowledge of the second murder.

Defendant contends that the court erred in failing to conduct individualized voir dire during the trial, and by rejecting defendant's request to poll the jury individually after its penalty-phase verdict to uncover any possible knowledge of the Pine murder. In the context of another death penalty case, we recently stated the principles that guide us in resolving these claims of prejudice based on alleged prejudicial publicity:

Of particular significance here is that aspect of impartiality mandating "that the jury's verdict be based on evidence received in open court, not from outside sources." As expressed by Justice Holmes, "[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." . . . The Court has consistently required trial courts to protect both jurors and their deliberations from illegitimate influences that threaten to taint the verdict. [T]rial Judges must "seek out and expose outside factors impinging upon the jury's freedom of action and its impartiality and essential integrity."

[Harris, (supra) __ N.J. at __ , (slip op. at 15)(quoting State v. Bey, 112 N.J. 45, 75)(1988))(Bey I)(citations omitted).]

We address the problem of midtrial publicity in much the same manner as prejudicial pretrial publicity. Bey I, supra, 112 N.J. at 74-78; Williams I, supra, 93 N.J. at 63. Whether midtrial voir dire is necessary to uncover jury exposure to prejudicial publicity depends upon (1) the publicity's ability to prejudice the defendant, and (2) whether there is a "realistic possibility that such information may have reached one or more of the jurors," focusing on the "extent, notoriety, and prominence of the media coverage." Bey I, supra, 112 N.J. at 83-86. Although noting that individualized voir dire was more likely to ferret out a juror's exposure to prejudicial publicity than an en banc examination, we declined to adopt a hard and fast rule mandating individualized jury voir dire. Id. at 86-87 n.26.

In the context of this case, we find no error in the court's collective voir dire of the jury during the trial. We note that this was a trial that did not engender extensive publicity. Moreover, the "realistic possibility that [prejudicial publicity] may have reached one or more of the jurors," id. at 86, was minimized by the court's extensive pretrial voir dire and continuous instructions throughout the trial admonishing the jurors to avoid any publicity regarding the case. Unlike Bey I, supra, 112 N.J. at 79-80, this was not a case in which the court simply told the jurors to come forward if they were ever exposed to publicity; the court did conduct collective voir dire on several occasions during the course of the trial. We find the court's discharge of its obligations in this regard to be cautious and conscientious, and do not perceive any abuse of discretion.

Similarly, we find no error in the court's refusal to poll the jurors individually after the penalty-phase verdict to determine whether they had been exposed to publicity regarding the other murder. We have previously rejected similar contentions. See State v. Loftin, 146 N.J. 295, 382 (1996)(Loftin I) and Koedatich I, supra, 112 N.J. at 288-89. We note that defendant's claim here is weaker than those presented in Loftin I and Koedatich I because he has not presented any evidence suggesting that any juror obtained prejudicial information. Defendant's assertion that this case is different because the request to poll was made before the jury was discharged is of no moment. "Good cause" must still be shown to poll jurors after a verdict under Rule 1:16-1, a showing that defendant has failed to make.

In sum, defendant has not offered a persuasive reason either to question the adequacy of the trial court's precautionary measures or to undermine our confidence in the ...

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