The opinion of the court was delivered by: O'hern, J.
On appeal from the Superior Court, Law Division, Camden County.
This is a capital murder case. There must be a new sentencing because the State withheld evidence favorable to the defense and material to the jury's determination whether defendant deserved the death penalty.
Defendant Leslie Nelson has pled guilty to the killing of two police officers, Investigator John McLaughlin and Officer John Norcross, and to the second-degree aggravated assault of a third officer, Detective Richard Norcross, the brother of Officer John Norcross. The killings and the assault occurred on April 20, 1995, during a shootout with the officers, who had come to defendant's home with a search warrant.
The standoff was central to one of the mitigating factors in defendant's case. Investigator McLaughlin, who worked for the Camden County Prosecutor's Office, and Investigator Carmelo Garcia, of the Division of Youth and Family Services, went to defendant's home on the morning of April 20 to respond to a complaint that defendant had fondled her niece and threatened her niece with a shotgun. Haddon Heights Police Detectives Robert Griffith and Richard Norcross accompanied the two investigators.
Defendant lived with her elderly parents in Haddon Heights. Defendant's van was parked outside of the home when the police arrived. When no one answered the door, the officers had their dispatcher call the home. Defendant answered, told the dispatcher she would not open her door, then hung up. The dispatcher called again and persuaded defendant to open the door by telling her the officers were investigating a problem with the van.
After opening her door, defendant was reluctant to cooperate with the officers. At first she insisted on speaking only through the screen door. After a time, defendant agreed to allow Investigator McLaughlin inside the home. When McLaughlin would not enter alone, defendant agreed to let Garcia inside as well. The other officers remained outside.
Once inside, McLaughlin and Garcia spoke to defendant for approximately ninety minutes in her living room. The conversation was generally calm. Defendant, however, became upset and raised her voice when the officers told her that she had been accused of committing a sexual crime. In the course of the Discussion the officers learned that defendant had a knife and a shotgun and that she kept the shotgun locked in her bedroom closet. Defendant would not allow the officers to search her bedroom, although her mother allowed them to search the rest of the house. The search of the house, including the part of defendant's bedroom the officers could see through defendant's partly opened bedroom door, did not reveal any evidence of crime.When the officers went downstairs, Investigator McLaughlin went outside. While McLaughlin was outside, Investigator Garcia noticed that defendant was very upset. She paced from window to window to see what the police were doing outside. Garcia described defendant's behavior at this stage as "paranoid." McLaughlin returned and asked defendant about her knife. Defendant at this point agreed to allow the officers to see her bedroom. In the room the officers saw a number of bullets and a four-inch lock-blade knife.
As the officers left the house, defendant asked about their plans for further investigation. Garcia told defendant that his part of the investigation was over, but McLaughlin said that he would have to discuss the matter with his superiors. Defendant told them that she would kill herself if she had to go to jail.
Norcross decided to obtain a warrant to search defendant's bedroom for weapons. Believing that "things might get hairy" when they served the warrant, the officers asked for a "no-knock" provision in the warrant. A municipal court Judge issued the "no-knock" warrant. Upon further consideration, the officers decided not to use the "no-knock" provision. They believed that the relationship that McLaughlin developed with defendant would make the search go smoothly.
At about 2:00 p.m. that same day, six officers, including McLaughlin and Detective Richard Norcross, went to defendant's home to conduct the search. McLaughlin and Norcross went to the door, while the other officers remained outside. According to the testimony of Detective Norcross, defendant's mother answered the door and called upstairs to defendant that McLaughlin had returned. Defendant called back, "What the f--- does he want?" McLaughlin, in a "soothing tone," told defendant that he needed to ask some more questions. McLaughlin attempted to coax defendant down the stairs, speaking to her from the foot of the stairway as defendant stood at the top. Defendant asked if the officers had a warrant for her. McLaughlin explained that they did not have an arrest warrant, but they did have a warrant to search her bedroom. Just then Detective Norcross heard defendant begin to run, and he saw McLaughlin reach for his firearm and run up the stairs after defendant. When McLaughlin reached the top of the stairs and turned toward defendant's bedroom, defendant fired a rifle at him. McLaughlin fell, fatally wounded.
Detective Norcross continued up the stairs after Investigator McLaughlin fell. When he reached the top, defendant shot him, hitting him in the chest, hand, arm and leg. Norcross fell and slid back down the stairs. As he slid, defendant leaned out over the railing and shot Norcross once more in the leg. She then ran to the top of the steps and began to follow Norcross down. Defendant's mother called to her to stop, and she stepped between defendant and the detective. Norcross struggled to his feet and left the house through a side door.
Defendant went to a second-floor window and began firing at the officers outside. Ten or fifteen minutes after the gunfire began, defendant fatally shot Officer John Norcross, who was standing across the street from defendant's home.
The Haddon Heights dispatcher called defendant's home soon after John Norcross was shot. Defendant told the dispatcher that she did not want police officers searching her room or taking her to jail. After a long negotiation conducted by telephone, defendant eventually surrendered.
A Camden County Grand Jury indicted defendant on two counts of knowing and purposeful murder by her own conduct, eight counts of first-degree attempted murder, third-degree unlawful possession of an assault firearm, and second-degree possession of a firearm for an unlawful purpose. Defendant pled guilty to the two capital murder counts and to second-degree aggravated assault of Detective Richard Norcross and was convicted of those charges on the basis of her plea.
At the sentencing trial, the State asserted the following aggravating factors in connection with the murder of Investigator McLaughlin: 1) the murders created a grave risk of death to Detective Norcross (the "grave risk" factor); 2) each murder was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement for the unlawful possession of a firearm (the "escape detection" factor); 3) each murder was committed while defendant was engaged in the murder of the other officer (the "other murder" factor); and 4) each murder occurred while the officers were engaged in the performance of their official duties (the "public servant" factor). For the murder of John Norcross, the prosecution submitted only the escape detection, other murder, and public servant factors. It did not submit the grave risk factor.
Defendant countered with three mitigating factors for both murders:
1) she was "under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution" (the "emotional disturbance" factor); 2) her "capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of law was significantly impaired as the result of a mental disease or defect, but not to a degree sufficient to constitute a defense to prosecution" (the "impaired capacity" factor); and 3) "any other factor that the jury might find relevant to her prospects of rehabilitation or to the circumstances of the offenses, including [her] contention that the . . . officers [who came to her house] had inadequate training, preparation, and support from the Camden County Prosecutor's Office and from the Haddon Heights Police Department for dealing with a disturbed person, particularly one known to possess a firearm" (the "catch-all" factor).
Defendant's mitigating evidence centered on the mental illness she suffered as a result of years of painful doubt about her sexual identity. Defendant began life as a male named Glen Nelson. In 1986, defendant consulted a Colorado doctor about sexual reassignment. The doctor advised him to begin the sex-change process by taking estrogen and progesterone. Following a nineteen-day commitment to a mental hospital in 1988, defendant was diagnosed with severe depression and with schizoid and antisocial tendencies.
In July 1989, defendant underwent psychological testing to determine if he would be a good candidate for sex-change surgery. The test indicated that defendant may have suffered from a depressive disorder, a dysthymic disorder, a major affect disorder or paranoia. He was not approved for the sex-change operation, but he began taking estrogen and progesterone. Defendant had breast augmentation surgery in May 1991, changed his name to Leslie, and began to live and dress as a woman. In September 1991, one of defendant's doctors described defendant as having "severe psychological problems." Still, defendant's doctors approved the sexual reassignment, in part because they feared defendant would commit suicide if he did not have the surgery. Defendant had the operation in May 1992.
After the sex-change operation, defendant's depression persisted. She developed a fixation or transference on a Browning handgun that she had bought, along with a semi-automatic assault rifle, in early 1989. As defendant's depression worsened, her obsession with guns deepened. Her bedroom, where she would spend hours polishing the guns, took on a surreal significance. A defense psychiatrist testified that her deteriorating mental condition caused an abnormal reaction to the threat of the police entering her bedroom.
With respect to the murder of Officer John Norcross, the jury unanimously found the "escape detection," "other murder," and "public servant" aggravating factors. It unanimously rejected the "emotional disturbance" and "impaired capacity" mitigating factors, and it voted nine to three to reject the "catch-all" factor. The jurors were unanimous in declaring, beyond a reasonable doubt, that the collection of aggravating factors, and each aggravating factor in isolation, outweighed the mitigating factors.
In connection with the murder of Investigator McLaughlin, the jury unanimously found three of the four proffered aggravating factors: the "escape detection" factor, the "other murder" factor, and the "public servant" factor. Only ten of the twelve jurors found the "grave risk" factor. The only mitigating factor the jury was unanimous in finding was the "emotional disturbance" factor. The jurors voted ten to two in rejecting the "impaired capacity" factor and eight to four in rejecting the "catch-all" factor. The jurors could not unanimously agree that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt.
The trial court sentenced defendant to death for the murder of Officer John Norcross and to life in prison with thirty years of parole ineligibility for the murder of Investigator McLaughlin. The court further sentenced defendant to a consecutive term of ten years in prison with a five-year parole bar for the second-degree aggravated assault of Detective Richard Norcross.
After the trial, it was revealed that Detective Richard Norcross, who had followed McLaughlin up the stairs and who was injured in the siege, had filed a civil suit against the county and municipal authorities. His tort claim alleged that the Borough of Haddon Heights and the Camden County Prosecutor's Office acted in a "palpably unreasonable" manner in "failing to provide proper training and instruction to ensure the safety of the Haddon Heights Police Officers" who served the search warrant on defendant. Norcross claimed that the officers' conduct had caused Leslie Nelson to react as she did and injure him. The complaint was served on the County Prosecutor's Office on May 8, 1997, which was the seventh day of the ten-day sentencing phase. Two years before serving the complaint, on July 14, 1995, Detective Norcross sent notice of his claims to the prosecutor's office, in accordance with the Tort Claims Act, N.J.S.A. 59:8-3 to -11. The detective's tort claims notice alleged "improper hiring, screening, training and supervision." The prosecutor's office did not disclose this information to the defendant or defense counsel. Defendant called attention to the State's nondisclosure of the Norcross complaint in a post-sentencing motion for a new trial. The trial court denied that motion on July 22, 1997.
Defendant now appeals her death sentence under Rule 2:2-1(a). She has not challenged the convictions, which were based on her guilty pleas.
In every criminal case the prosecution must disclose to the defendant all evidence that is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963). There are three elements of a Brady violation. The evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972).
Evidence of the Norcross complaint would have been favorable to defendant in the penalty phase. The allegation that law enforcement personnel had been inadequately trained lent direct support to defendant's catch-all mitigating factor. Thus, the first Brady element is satisfied.
Whether the prosecution should be understood to have suppressed evidence of the Norcross complaint, satisfying the second Brady element, depends on whether the prosecution actually or constructively possessed that evidence during the penalty phase. The Brady disclosure rule applies only to information of which the prosecution is actually or constructively aware. See, e.g., Calley v. Calloway, 519 F.2d 184, 223 (5th Cir. 1975) (en banc), cert. denied sub nom. Calley v. Hoffmann, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976). We accept that the trial prosecutor himself did not have personal knowledge of the Norcross complaint. The question is whether knowledge of the complaint should be imputed to the prosecution.
In Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995), the Supreme Court reversed the denial of habeas corpus relief to a Louisiana defendant convicted of capital murder. The prosecution in that case failed to disclose several statements the police had taken that, according to the Court, "would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense." Id. at 441, 115 S. Ct. at 1569, 131 L. Ed. 2d at 510. The trial prosecutor was not aware of those statements prior to trial, but the lack of actual awareness did not relieve the State of its Brady obligations. Justice Souter reasoned for the Court that "the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf, including the police." Id. at 437, 115 S. Ct. at 1567, 131 L. Ed. 2d at 508. He defined the contours of that duty:
[N]o one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that "procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it." . . . Since, then, the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.
[Id. at 438, 115 S. Ct. at 1568, 131 L. Ed. 2d at 508-09 (quoting Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 109 (1972)).]
In Giglio, the Supreme Court reversed a conviction for the passing of forged money orders because the Government did not disclose that its key witness testified in exchange for a promise that he would not be prosecuted. The promise was made by one of the trial prosecutor's colleagues in the United States Attorney's Office. As in Kyles and the present case, the trial prosecutor was unaware of the promise. The Court held the prosecution was constructively aware of the promise to the witness. Chief Justice Burger wrote, "the prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government." Giglio, supra, 405 U.S. at 154, 92 S. Ct. at 766, 31 L. Ed. 2d at 109 (quoting Restatement (Second) of Agency § 272); see also State v. Carter, 91 N.J. 86, 111 (1982) ("The prosecutor is charged with knowledge of evidence in his file, `even if he has actually overlooked it.'") (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342, 349 (1976)).
The Tenth Circuit has stated that "the `prosecution' for Brady purposes encompasses not only the individual prosecutor handling the case, but also extends to the prosecutor's entire office . . . , as well as law enforcement personnel and other arms of the state involved in investigative aspects of a particular criminal venture." Smith v. Secretary of N.M. Dep't of Corrections, 50 F.3d 801, 824 (citation and footnote omitted), cert. denied sub nom. Mondragon v. Smith, 516 U.S. 905, 116 S. Ct. 272, 133 L. Ed. 2d 193 (1995).
In this case, the complaint was filed by one of the "law enforcement personnel" involved in the investigation of defendant's "particular criminal venture," and it was brought against the "prosecutor's entire office." Smith, supra, 50 F.3d at 824. In fact, after receiving Richard Norcross' tort claim notice in July 1995, the Camden County Prosecutor notified County Counsel, in a letter dated August 7, 1995, that the Prosecutor would discuss the complaint with the assistant prosecutor handling defendant's trial. It appears that discussion never took place. Under either Kyles or Giglio, we must impute awareness of the Norcross complaint to the trial prosecutor and hold that the evidence was suppressed for Brady purposes.
The materiality element of the Brady rule is also satisfied. Undisclosed evidence is material for Brady purposes if there is a "reasonable probability" that a different result would have obtained had the evidence been disclosed. United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Ibid. For these purposes, the "outcome" of the trial may refer to either the determination of guilt or the imposition of punishment. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. For an appellant, the materiality standard is not difficult to achieve. "[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Kyles v. Whitley, supra, 514 U.S. at 434, 115 S. Ct. at 1565, 131 L. Ed. 2d at 506. Rather, the question is whether in the absence of the undisclosed evidence the defendant received a fair trial, "understood as a trial resulting in a verdict worthy of confidence." Id. at 434, 115 S. Ct. at 1566, 131 L. Ed. 2d at 506.
In order to disregard the suppression of favorable evidence, we would have to be confident that the jury would have chosen the death penalty over a term of imprisonment had the State made defendant aware of Norcross' complaint. It is not for us to assess the merits of Richard Norcross' complaint or to Judge thereby the conduct of the police. It suffices to observe that the allegations would have profoundly altered the jury's perspective of the case. Norcross was the State's key witness to defendant's conduct during the standoff. He testified about her vicious assault on him as well as the murder of Investigator McLaughlin. Had the jury been aware that this crucial witness, the brother of one of the dead police officers, agreed with defendant that inadequate police training had sparked defendant's violent reaction, it is at least reasonably probable that an additional juror or jurors would have found the existence of one or more of defendant's mitigating factors. Not only did the prosecution dispute the existence of the mitigating factor concerning the inadequate training of the police officers, it excoriated the defendant for daring to question the conduct of deceased police officers. (Defense counsel referred to the prosecutor's Discussion on this point as the "pinnacle" of his summation.) It is also reasonably probable that the jury would have given greater weight to the mitigating factor(s) thus substantiated and would not have been convinced beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating ones. The Brady violation requires a retrial of defendant's sentence.
Because the non-disclosure of the Norcross complaint requires us to order a new sentencing trial, we address only briefly the other issues in the case.
Did the trial court erroneously instruct the jury to disregard, for capital-sentencing purposes, the fact that defendant could be non-capitally sentenced to sixty years' imprisonment for the two murders?
Defendant asserts that the court did not accurately inform the jury that it could legitimately consider the cumulative consequence of two non-death verdicts. The court told the jury that for each non-death verdict that it returned, defendant would be sentenced to a term of imprisonment of thirty years to life and would spend at least thirty years in prison. The court added that if it were imposing sentence on both murder charges, there was a reasonable likelihood that the sentences would run consecutively, creating a minimum prison term of sixty years. However, the court admonished the jury not to consider in its deliberations the likelihood that the sentences would run consecutively.
The consequences of the jury's decision whether to vote in favor of the death penalty were explained as follows:
If the answer is yes, the defendant shall be sentenced to death. If the answer is no or the jury is unable to reach a unanimous Conclusion after due deliberation, I shall sentence the defendant to a term of imprisonment of between thirty years and life which the defendant shall serve at least thirty years before being considered for parole. If separate sentences are to be imposed by me, the reasonable likelihood is they will run consecutive to one another so the defendant will have to serve at least sixty years before being considered for parole . . . .
Please note that throughout the explanation of the verdict sheet and otherwise during the course of the charge at the request of the parties I have instructed you and told you that if I do not impose -- if you do not impose -- if the result of your decision is the defendant does not get the death penalty, you do not impose the death penalty and the decision is one of incarceration, the reasonable likelihood is that I will impose or give consecutive sentences, which mean[s] that the defendant would have to serve sixty years before being considered eligible for parole. Now, remember, that's not an aggravating factor, it's not a mitigating factor, [I] went over all the aggravating factors, I've gone through all the mitigating factors. Therefore, you shall not consider the likelihood, that likelihood as a basis for your decision to impose the death penalty or a sentence of imprisonment because simply put it's not an aggravating factor and simply put it's not a mitigating factor, but I do bring it to your attention because you should be aware of all the potential consequences of your decision. That's why I bring it to your attention.
The defendant relies upon the general proposition codified in N.J.S.A. 2C:11-3f, that "[p]rior to the jury's sentencing deliberations, the trial court shall inform the jury of the sentences which may be imposed pursuant to subsection b. of this section on the defendant if the defendant is not sentenced to death."
Defendant's argument is that the consequence of a non-death verdict in this case would have been two sentences of thirty years to life that would probably run consecutively. Therefore, the jury should have been asked to weigh death against the likelihood that a non-death verdict on both murder counts would result in a sentence of life in prison without the possibility of parole for sixty years. (Because defendant was thirty-seven years of age at the time of the crime, this effectively meant that she would die in prison.) Instead the jury was told to weigh death against a prison term of thirty years to life, and was, in effect, told to disregard the likelihood that the sentences would run consecutively.
A penalty-phase jury in a capital case, prior to the start of its deliberations, must be informed of the sentencing consequences of its decision. N.J.S.A. 2C:11-3f. In State v. Ramseur, 106 N.J. 123 (1987), the Court stated, "To hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation, is to mock the goals of rationality and consistency required by modern death penalty jurisprudence." Id. at 311.
In State v. Bey, 129 N.J. 557 (1992) (Bey III), the Court considered whether to inform a penalty-phase jury of the length of a sentence the defendant is serving for a prior crime, there a prior murder that was an aggravating factor in the capital case. The Court held that the jury should be told (1) the amount of time being served under the prior sentence, (2) whether the prior sentence is final or up on appeal, (3) that the decision of whether a non-capital sentence in the present case will be concurrent or consecutive with respect to the sentence already being served is solely up to the court, and (4) not to consider the prior sentence in its decision to impose life or death. Id. at 603. The Bey III Court explained that jurors should not be permitted to consider prior sentences as aggravating or mitigating factors. It reasoned as follows:
The focus of the Capital Punishment Act is on individualized sentencing, requiring that the jury determine whether death is the appropriate punishment based on the circumstances of the offense and the aggravating and mitigating factors. To permit consideration of pending sentences for prior crimes might lead to the incongruous result that first-offenders would be more likely to be sentenced to death than would repeat-offenders. The proper balance is struck by informing a jury of pending sentences on request, but instructing the jury to base its life or death decision only on the aggravating and mitigating factors presented by the evidence.
In State v. Martini, 131 N.J. 176 (1993) (Martini I), cert. denied, ___ U.S. ___, 117 S. Ct. 699, 136 L. Ed. 2d 621 (1997), the Court adopted a prospective rule that required analogous instructions on sentences to be imposed for non-capital counts prosecuted in the same case as the capital count being considered by the jury. Id. at 313.
The Court held that in the future when defense counsel or the jury requests instructions on the potential sentences a defendant will receive for convictions arising from the same trial as his capital-murder conviction, such information should be provided by the trial court. The jurors should be informed of the sentencing options available to the Judge, and that the determination of sentence had not yet been made. In addition, the trial court should explain that the sentence may or may not run consecutively to that for murder, but that the determination is left to the court. Finally, the court should inform the jury that ...