The opinion of the court was delivered by: O'hern, J.
Argued September 23, 1997
On appeal from the Superior Court, Law Division, Mercer County.
In his Concurring opinion in State v. Allen, 73 N.J. 132, 146 (1977), Justice Pashman described a similar case as one involving "the interplay between two of our most basic constitutional guarantees -- free speech and fair trial -- which are also, as Mr. Justice Black correctly noted, `two of the most cherished policies of our civilization.'" Id. at 146 (quoting Bridges v. California, 314 U.S. 252, 260, 62 S. Ct. 190, 192, 86 L. Ed. 192, 201 (1941)).
In this capital case a jury has convicted defendant of the murder of Kristin Huggins and recommended that he be sentenced to death. Pervasive media publicity surrounded the conduct of the trial. In Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), the Supreme Court held that [d]ue process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances.
[Id. at 362, 86 S. Ct. at 1522, 16 L. Ed. at 620.]
Defendant contends that he was denied a fair trial because the court did not "take strong measures" to assure that his trial was free from the outside influence of prejudicial publicity. Central issues raised in his appeal are (1) whether the trial court should have granted defendant's motion for a change of venue, that is, whether it should have transferred the case for trial outside the county where the crime was committed, and (2) whether, because of recurring prejudicial publicity during the course of the trial, the court should have questioned jurors individually concerning their exposure to such midtrial publicity. We find that the measures taken by the trial court, the selection of a jury composed of out-of-county residents, and its general questioning of the jurors during the trial concerning any exposure to trial publicity sufficiently ensured that defendant's trial was free of extraneous influences. We find no other errors that tainted his trial. We affirm the convictions for murder and other crimes found and affirm the sentence of death. Proportionality review will take place in later proceedings.
Because in cases involving the death penalty a trial court's responsibility under both the federal and state constitutions is to "minimize the danger that prejudice will infiltrate the adjudicatory process," State v. Williams, 93 N.J. 39, 63 (1983) (Williams I), we hold that when hereafter there is a reasonable likelihood that the trial of a capital case will be surrounded by presumptively prejudicial media publicity (as that phrase is understood in the law) the court should transfer the case to another county. Other devices, such as restraints against the publication of material concerning the trial or the sequestration of jurors, have proven either to be unavailable to counter the effects of continuing prejudicial publicity or to produce a contrary effect than desired. In some cases a court may conclude that an initial tide of inherently prejudicial publicity will have subsided at time of trial and will not require a change of venue if the jury selection process yields an impartial jury. E.g., State v. Koedatich, 112 N.J. 225, 273-82 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989) (Koedatich I). When, however, a court is satisfied that there is a reasonable likelihood of the continuing recurrence at a capital trial of presumptively prejudicial publicity that might infiltrate the trial, a change of venue is required.
On December 17, 1992, Kristin Huggins left her parents' home in Bucks County, Pennsylvania, to paint a mural at the Trenton Club, in downtown Trenton. She was driving a red Toyota sports car. Huggins never returned home. According to the State's case, Ambrose Harris, with the aid of Gloria Dunn, raped and killed Huggins in the course of a carjacking and robbery.
Police discovered Huggins' car on December 18, 1992, but were unable to locate her. In the later stages of the investigation, witnesses informed the police that defendant had been seen driving a red Toyota with Pennsylvania plates on the night of Huggins' disappearance. One witness, Tariq Ayres, told the police that Harris said he had "knocked off some white girl" and "hijacked" the car. Another witness reported that Harris had a wallet containing an ATM (automatic teller machine) card and a driver's license with Huggins' picture on it. An ATM video showed defendant attempting to make a $400 cash withdrawal from Huggins' account on that night.
On February 18, 1993, Gloria Dunn went to the police with her sister, Eleanor Williams, and told the police that she knew where Huggins' body was, claiming at first that the two had found the body by following Williams' "psychic vision." They asked about reward money.
Dunn led the police to Kristin Huggins' badly decomposed body. That same day, she gave the police a statement about the murder. Over the next year and a half, Dunn provided the police with several additional statements containing a number of inconsistencies and additions. Of greatest significance, she waited a year and a half to inform the police about defendant's having raped Huggins. When she did inform the police about the rape, she lied about the circumstances.
On June 8, 1994, a Mercer County Grand Jury indicted defendant for purposeful or knowing murder by his own conduct, felony murder, kidnapping, robbery, aggravated sexual assault, possession of a handgun for an unlawful purpose, and various theft offenses. The State served a notice of aggravating factors as a basis for the death penalty, alleging that the murder was committed in the course of a felony, N.J.S.A. 2C:11-3c(4)(g), and for the purpose of escaping detection, N.J.S.A. 2C:11-3c(4)(f).
Defendant filed a number of pretrial motions, several of which were appealed to the Appellate Division on an interlocutory basis. A significant pretrial motion, based on massive pretrial publicity in the Trenton area, was for a change of venue or, in the alternative, empanelment of a jury from a county other than Mercer. The trial court denied the motion for a change of venue but agreed to empanel a jury from Hunterdon County. Both parties sought leave to appeal. The State contended that an out-of-county jury was unnecessary. Defendant argued that Camden County was the proper juror source.
The Appellate Division granted leave to appeal and held that defendant was entitled to an out-of-county jury and that the trial court should consider the racial makeup of the county from which jurors would be drawn. State v. Harris, 282 N.J. Super. 409, 419 (1995). On that basis, the Appellate Division held that the trial court had erred in choosing a pool of jurors from Hunterdon County, which has a small minority population. Id. at 420. On remand, after denying defendant's request to reconsider the motion for a change of venue, the trial court selected Burlington County as the county from which jurors would be selected, rejecting defendant's suggestion that Camden County be used.
Defendant also moved for closure of the trial, for exclusion of his criminal record if he were to testify, and for separate guilt-phase and penalty-phase juries. The court denied those motions. The court did limit media photographs of defendant in order that shackles did not appear.
Jury selection occurred between October 10, 1995, and January 3, 1996. Defendant made several motions during voir dire (the process of questioning of potential jurors), relating principally to the court's termination of attorney-conducted voir dire, the court's limitation on inquiry into the racial attitudes of prospective jurors, and death-qualification. The trial court refused to delay the voir dire further to consider these motions. The Appellate Division, taking an interlocutory appeal on an emergency basis, affirmed that refusal, but one member of the appellate panel expressed concern at oral argument about the scope of the voir dire on racial bias. The trial court thereafter questioned more extensively concerning racial bias.
After voir dire was complete, the trial court denied defendant's motions to dismiss the entire jury panel because of the allegedly faulty selection process, to reconsider various other pretrial issues raised, and to increase juror security in order to protect the jury from pervasive publicity, which included newspaper headlines displayed prominently at courthouse newsstands.
The guilt phase began on January 10, 1996. The jury reached its verdict on February 20, 1996. Dunn's testimony provided the only direct evidence linking defendant to the crime. From the evidence a jury could have found the following facts. Dunn and defendant met several months before the murder and had spoken on several occasions thereafter. Harris offered to give her drugs and to "pop" an ex-boyfriend who was giving her trouble.
In late November 1992, defendant asked Dunn to take part in a holdup. She hesitated at first but agreed to participate in return for a part of the proceeds, which she intended to use to buy drugs for resale. The two agreed to meet at 8:00 a.m. on December 17. Harris came on a bicycle. He had a gun in his possession. He decided to "carjack" someone so that he and Dunn would not have to walk through the rain to the luncheonette they planned to rob. The two took a route through downtown Trenton at a time when many employees were arriving for work.
Dunn asked defendant what he was going to do with the people who were in the car he carjacked. According to Dunn, defendant said he would "tie them up and leave them somewhere" if they were black. He said he would kill them if they were white. *fn1 Dunn claimed to want no part of a murder but to have remained because she feared defendant.
As the two passed the Trenton Club on West State Street, they saw a young woman drive a red Toyota into the parking lot. Harris said, "I'm going to get that bitch." He followed on his bicycle to the rear of the driveway, leaving Dunn in the front area. Dunn did not leave because she feared for herself and for the woman. Defendant returned, driving the car with Huggins in the passenger seat. Dunn was "relieved" that Huggins was then unhurt.
Harris told Dunn to get into the car. Huggins sat on Dunn's lap. Dunn tried to calm Huggins, but defendant told Dunn to shut up. He drove to a deserted area under the Southard Street Bridge, near Route 1 and Perry Street in Trenton. He asked Huggins how to open the front trunk of the car. Harris forced Huggins into the trunk because he feared that the image of a white woman riding in a two-seated sports car with a black man and woman would create suspicion.
With Huggins in the trunk, Harris drove to West End Avenue and parked. He then walked back to the Trenton Club to recover the bicycle. Two club employees saw defendant walk to the rear of the parking lot at 9:15 a.m. and return with a bicycle. Harris drove the car back to the Southard Street area. He had Huggins get out of the trunk. Defendant then raped Kristin, ignoring her cries for mercy. After the rape, defendant put Huggins back in the trunk but then decided to kill her. He opened the trunk and shot her in the back of the head as she climbed out of the trunk. He placed the body under a mattress located a short distance from the car.
Harris went to his mother's home to get a shovel. When he returned, he planned to shoot Huggins again. Dunn asked him why he was doing it, since Huggins was already dead. Defendant said he wanted to make sure, and he shot Huggins in the face. Defendant dug a shallow grave in which he and Dunn buried Kristin's body. Dunn also testified that defendant took thirty dollars and an ATM card from Huggins' wallet. Dunn claimed that she did not get any of the cash.
Harris threatened to "come looking" for Dunn if she told anyone about what had occurred. Dunn claimed that his threats prevented her from going to the police immediately, as did her fear of being implicated in the crimes herself. When news of Huggins' disappearance appeared on the television news, Harris called Dunn to say, "That white bitch is on the news."
Several pieces of physical evidence linked defendant to the crimes. The gun that a ballistics expert later linked to the crime was seized from defendant during an unrelated arrest on December 27, 1992. Defendant's nephew further connected defendant to the gun. The nephew bought the gun for his own protection and then gave it to defendant before the murder. The nephew also testified that defendant had the gun on the night of the murder. Finally, Dunn identified the gun as the murder weapon. Because Kristin's body had so badly decomposed, DNA and forensic evidence regarding the sexual assault was inconclusive. Defendant did not testify during the trial. He attacked the credibility of the State's witnesses, seeking to convince the jury that those witnesses, not he, were actually responsible for the murder of Kristin Huggins and that they were attempting to frame him. Although his defense was not entirely consistent, his major goal was to cast doubt on Dunn's version of defendant as principal and Dunn as accomplice. He thus came close to admitting his presence during the crime, while pointing to Dunn as triggerperson. That distinction had death-eligibility consequences. According to N.J.S.A. 2C:11-3c, one who kills by his own conduct is death eligible.
Defendant attacked Dunn's credibility, pointing out the various inconsistencies in Dunn's testimony and statements to the police. He stressed her involvement in the crimes, her failure to attempt to escape or to seek help for Huggins when presented with the opportunity, and her long delay in notifying the police. Defendant also emphasized the reduction in charges that Dunn had received in exchange for her testimony against defendant, *fn2 the allegedly leading nature of the questioning by the police when Dunn gave her statement on October 5, 1994, and the State's failure to investigate fully whether Dunn, not defendant, was the one who pulled the trigger. Defendant sought to introduce evidence of Dunn's violent Disposition in order to rebut her claim that she feared him and to cast doubt on his status as triggerman. The trial court, however, excluded the evidence. Defendant challenges that exclusion.
Defendant specially emphasized Dunn's desire to get the $25,000 reward money as her motive to implicate Harris. At trial, Dunn denied ever having been interested in obtaining a reward for leading authorities to the body and to defendant, but parts of her testimony and the testimony of various police officers demonstrated that she and her sister repeatedly inquired about the reward. She explained her inquiries about the reward as a strategy to lead the police to the body without incriminating herself.
Defendant also attacked the credibility of the young men who gave evidence, all of whom had either been involved with drugs, had criminal records, had motives to seek favor with prosecutors, or had lied to the police. Defendant presented testimony that one of the men had shown off a gun similar to the murder weapon sometime in December and stated that he had plans for the gun. Certain of the witnesses had been seen driving Huggins' car without defendant. One had Huggins' Blockbuster Video card. Defendant also elicited testimony that the police had not compared hair found in the car with the hair of the witnesses.
At the Conclusion of the guilt phase, the jury convicted defendant on all counts and found that he had killed Huggins by his own conduct.
During the penalty phase, the State presented no new evidence to support the aggravating factors that it had submitted, the escape-detection and felony-murder factors. Nor did the State rebut defendant's mitigating evidence beyond cross-examination.
Defendant sought to submit 180 mitigating factors to the jury, all related to various aspects of his childhood and the abuse that he had suffered during that period. The trial court consolidated those "factors" into one factor with 180 supporting points. Defendant challenges that "deflation" of his mitigating evidence.
Defendant presented his evidence through three experts--a mitigation expert, a child psychologist, and a psychiatrist. The evidence revealed that defendant came from a dysfunctional family. His mother had been abused by her father and had married, when she became pregnant, a man whom she did not love--a man who abandoned her and their child. She raised a child whom she did not want and whom she neglected. She and a new boyfriend often abused Harris physically. Defendant was exposed to sexual activity in the home. A neglected child, he was soon involved in violent and sexual activity. He was hospitalized and placed on "Thorazine" (a mood elevator) and diagnosed as mentally retarded. He began to experiment with drugs.
A defense expert expressed the opinion that because of defendant's neglected and violent life, his problems at school, his experience at the mental hospital, and his self-perception as being mentally retarded, he harbored "rage against women." Harris should have been classified at age thirteen as having a "severe conduct disorder." A witness said that defendant should not have been allowed to remain in his dysfunctional home and that he should have been placed in a structured residential facility where he could get intensive psychiatric treatment for his mental illness. The witness also testified that defendant's poor treatment by school officials contributed to his problems. Another defense expert concurred that defendant suffered from a conduct disorder stemming from biological, psychological, and social causes and that he should have been removed from the "squalor" of his home. He stated that "if I were trying to write a book about how not to raise a child during those years, I would [have the parents] do everything that was done to him."
At the Conclusion of the penalty phase, the jury found the existence of both aggravating factors and the sole consolidated mitigating factor. It also concluded that the aggravating factors outweighed the mitigating factor beyond a reasonable doubt and that Harris should be sentenced to death. Defendant appeals to us as of right under Rule 2:2-1(a)(3).
A. Motion to Transfer Trial From Mercer County
Defendant challenges his conviction on the ground that prejudicial pretrial and midtrial publicity in Mercer County undermined his right to trial by a fair and impartial jury, a right guaranteed to criminal defendants by the state and federal constitutions. U.S. Const. amend. 14; N.J. Const. art. 1, ¶ 10; see Williams I, supra, 93 N.J. at 59-62. Justice Stein set forth a concise account of the relevant principles in State v. Bey, 112 N.J. 45 (1988) (Bey I):
"The securing and preservation of an impartial jury goes to the very essence of a fair trial. * * * [This right] is of exceptional significance. * * * [T]riers of fact must be as nearly impartial `as the lot of humanity will admit.'" "It is axiomatic that a criminal defendant's right to a fair trial requires that he be tried before a jury panel not tainted by prejudice." "[F]ailure to accord an accused a fair hearing violates even the minimal standards of due process."
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."
[Bey I, supra, 112 N.J. at 75 (citations omitted).]
Before applying these principles, we digress to examine important differences in four related concepts: (1) media publicity that is inherently prejudicial; (2) media publicity that is presumed to prejudice a fair trial; (3) the federal standard for reversing a state court conviction, and (4) the state standard for ordering a change of venue.
Obviously, not all publicity about a crime is prejudicial to an accused. Some news accounts may simply report that charges have been made and include an outline of facts alleged in the indictment. Other types of media publicity, however, are prejudicial to fair trial rights because the publicity is inherently prejudicial or inflammatory. Several types of publicity fall into this category. The [perfect example] is a report of a confession or of other significant evidence that is suppressed or otherwise inadmissible. Closely related are reports of important factual details that the defendant will actively seek to dispute at trial. Also included are emotionally charged editorials. This category [of inherently prejudicial publicity] further encompasses prejudicial accounts of the defendant's criminal history, particularly when such accounts are inaccurate.
[Newcomb v. State, 800 P.2d 935, 939 (Alaska Ct. App. 1990).]
Our cases have described such publicity as "presumptively prejudicial." Koedatich I, supra, 112 N.J. at 351. It is preferable to refer to the type of such media publicity described in Newcomb as "inherently prejudicial" publicity in order to distinguish such publicity from publicity that is "presumptively prejudicial" to fair trial rights. The latter concept describes a torrent of publicity that creates a carnival-like setting in which "the trial atmosphere is so corrupted by publicity that prejudice may be presumed." State v. Biegenwald, 106 N.J. 13, 33 (1987) (Biegenwald II). In Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975), the Supreme Court described the cases in which prejudice may be presumed.
In such cases, the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings. . . . The trial in Estes [,for example,] had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, Sheppard arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.
[Id. at 799, 95 S. Ct. at 2035-36, 44 L. Ed. 2d at 594.]
Cases of presumed prejudice due to pretrial publicity are "relatively rare and arise out of the most extreme circumstances." Koedatich I, supra, 112 N.J. at 269. Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985), cert. denied, 476 U.S. 1164, 106 S. Ct. 2289, 90 L. Ed. 2d 730 (1986) offers an example of the analysis that is required to reach the Conclusion that the "presumed prejudice" standard may be invoked. In Coleman, the community had been saturated with prejudicial and inflammatory pretrial publicity and an insufficient effort had been made to root out jurors exposed to the publicity.
The doctrine of "presumed prejudice" arising from massive and pervasive publicity is one of two tests currently prescribed by the federal courts to demonstrate that fair trial rights have been infringed. The other is a test for "actual prejudice." If prejudicial pretrial publicity makes it impossible to seat an impartial jury, then the trial judge must grant the defendant's motion for a change of venue. The prejudice requirement will be satisfied by a finding of: (1) presumed prejudice; or (2) actual prejudice.
"Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime." Courts rarely find presumed prejudice because "saturation" defines conditions found only in extreme situations.
Actual prejudice exists if the jurors demonstrated actual partiality or hostility that cannot be laid aside. "[J]urors need not, however, be totally ignorant of the facts and issues involved."
According to the Ninth Circuit, trial courts must grant a defendant's motion for a change in venue if either test is met. Ibid. And federal habeas corpus relief is warranted if a state trial court has failed to comply with the rule. See ibid. The federal standard for reversal of a state court conviction should not, however, be confused with the state standard for granting a change of venue. See United States v. Houlihan, 926 F.Supp. 14, 16 n.3 (D. Mass. 1996) (observing that "the [supervisory] threshold for unacceptable prejudicial publicity triggering a change in venue may well be lower than the constitutional standard"). New Jersey Rule 3:14-2 authorizes a change of venue or trial by a foreign jury "if the court finds that a fair and impartial trial cannot otherwise be had." Our law respecting motions for a change of venue in capital cases was initially considered in Williams I, supra, 93 N.J. 39. It was further developed in Biegenwald II, supra, 106 N.J. 13, and in Bey I, supra, 112 N.J. 45. In Biegenwald II the Court observed that under the former test set forth in State v. Wise, 19 N.J. 59, 73-74 (1955), which required clear and convincing proof that an impartial jury could not be obtained in the county where the indictment took place, few defendants succeeded in obtaining a change of venue. Biegenwald II, supra, 106 N.J. at 33. Accordingly, in Williams I, the Court modified the defendant's burden, conferring on trial courts the discretion to change venue when it is "necessary to overcome the realistic likelihood of prejudice from pretrial publicity." Williams I, supra, 93 N.J. at 67 n.13.
There can be no doubt that this case was accompanied by widespread, inherently prejudicial pretrial media coverage. Strong measures were "necessary to overcome the realistic likelihood of prejudice from pretrial publicity." Id. at 67-68. The trial court found that one media source, the Trentonian, a Mercer County newspaper, had conducted a "vengeance seeking crusade" against defendant. It had published a "stream of invective" that had been "constant," "prolonged," and "sensationalized." According to the trial court, there was a "reasonable likelihood of its taint permeating the trial." The newspaper ran many front-page, invective-filled headlines:
"Ex-Inmate: Suspect is a Loudmouthed Punk," "Huggins Suspect `Would Kill You in a Heartbeat,'" "Profile of a Monster: The Man Who Killed Kristin Huggins Committed His First Rape as a Teenager," "From Boy to Beast," "Huggins Slayer Terrorizes Prison," "He's Satan in Disguise." Other news accounts discussed the defendant's prior criminal record as well as other crimes he was suspected of committing. An editorialist predicted that death by lethal injection would rid society of "one of the biggest pieces of human trash ever to blight Trenton streets." A sample of the accounts is attached as Schedule A.
Based on the content of the newspaper coverage and the paper's editorial stance, the trial court concluded that Ambrose Harris "was no longer the subject of a news story, but rather the target of the newspaper's crusade." The court concluded that the pretrial publicity met the federal standard of "presumed prejudice." In its decision affirming the importation of foreign jurors the Appellate Division observed that such coverage had continued unabated, even during the oral argument of the interlocutory appeal. That event generated a full-page headline: "Justice for Kristin Delayed Again." State v. Harris, supra, 282 N.J. Super. at 415.
The reason that we do not reverse defendant's conviction is that the trial court agreed with defendant that there was a realistic likelihood of prejudice from prejudicial trial publicity and used one of the trial management techniques specifically approved to ensure that a defendant's right to an impartial jury is not compromised. We said in Biegenwald II:
In criminal cases attended by widespread and inflammatory publicity, various trial management techniques can be employed to assure that the defendant's right to an impartial jury is not compromised. One available option is a change in venue. Other means of protecting the defendant's constitutional rights include the use of searching voir dire examinations, the impaneling of "foreign jurors" to augment the pool of eligible jurors in the vicinage, adjournment of the trial date, and restraints on public comments by participants in the trial.
[Biegenwald II, supra, 106 N.J. at 32 (emphasis added).]
In fact, the empanelment of foreign jurors was the first trial management technique that Williams I suggested to combat the effects of pre-existing prejudicial pretrial publicity. The Court said: "The court should explore the feasibility of augmenting the pool of eligible jurors in the vicinage, and should consider the practicability of using citizens from beyond the particular vicinage to serve as potential jurors, the use of so-called `foreign jurors.' Similarly, a change of trial venue may help to overcome the risk of prejudice." Williams I, supra, 93 N.J. at 67 (emphasis added).
In the footnote to its opinion, the Williams I Court observed that "a change of venue has the same benefits and drawbacks as the impanelling of a foreign jury since both methods utilize jurors from communities where publicity may be less intense." Id. at 67 n.13. In order to "facilitate" the empanelment of foreign juries, the court held that the number of peremptory challenges should not be reduced if a foreign jury was chosen by the court in the exercise of its sound discretion. Id. at 67 n. 12. In short, every intendment of our law was that the empanelment of a foreign jury be an adequate response to the realistic likelihood that the jury would be subjected to adverse trial publicity.
Hence, we find no error in the trial court's decision to empanel a foreign jury rather than to transfer venue. When, however, a capital case is accompanied by a stream of public invective such as surrounded this case, it occasions us to reconsider our precedent.
In analyzing this conflict between free press and fair trial rights, we take guidance from Justice Jackson. He wrote:
The right of the people to have a free press is a vital one, but so is the right to have a calm and fair trial free from outside pressures and influences. Every other right, including the right of a free press itself, may depend on the ability to get a judicial hearing as dispassionate and impartial as the weakness inherent in men will permit.
[Craig v. Harney, 331 U.S. 367, 394-95, 67 S. Ct. 1249, 1263, 91 L. Ed. 1546, 1561 (1947) (Jackson, J., Dissenting).]
In an ideal world a free press would seek to foster fair trial rights by not circulating inherently prejudicial publicity at least during a time of trial. See Fred W. Friendly & Martha J. H. Elliott, The Constitution: That Delicate Balance 148 (1984). If this cannot be so, courts must guarantee the preservation of fair trial rights without any restraint of the editorial freedom of the press. We long ago made the choice that "free speech is the national currency." Maressa v. New Jersey Monthly, 89 N.J. 176, 201, cert. denied, 459 U.S. 907, 103 S. Ct. 211, 74 L. Ed. 2d 169 (1982).
In future capital cases a court should change the venue of a capital trial when there is a realistic likelihood that presumptively prejudicial publicity will continue during the conduct of a trial. Presumptively prejudicial publicity is recognized as a barrage of inflammatory reporting that may but need not include all of the following: evidence that would be inadmissible at the trial, editorial opinions on guilt or innocence, and media pronouncements on the death-worthiness of a defendant. We realize that this respect for a free press imposes an added expense and inconvenience on the State and the victims of crime. The alternatives, sequestration of jurors or gag orders on the press, have proven unacceptable. See generally Allen, supra, 73 N.J. 132.
B. Selection of a Burlington County Jury
In his initial motion for a change of venue, Harris asked the trial court to select Camden County as the place for trial because of the county's relative proximity to Mercer County, the minimum circulation of newspapers containing prejudicial publicity, and because the racial makeup of the county's population (its demographics) was nearly the same as Mercer County. Initially, the court rejected Camden County as a transfer site or source for a jury because it was not one of the counties contiguous to Mercer County and because there was no legal authority requiring the court to consider the racial makeup of the alternate jury pool in its decision. The court considered the two contiguous counties of Hunterdon and Burlington. It chose Hunterdon because the two Trenton newspapers (the Times and the Trentonian) had a combined Burlington County circulation of approximately 20,000, split fairly evenly between the two. The circulation of the two Trenton newspapers in Hunterdon County was about 3,000 daily, of which some 1,200 were of the Trentonian.
After the Appellate Division determined that racial demographics should be considered by the court and that the trial court had erred in refusing to consider Camden County merely because it was not contiguous to Mercer County, Harris again urged the selection of Camden County based upon publicity and the demographic considerations. Camden County, like Mercer County, consisted of an urban center surrounded by rural areas with a sixteen percent African-American population. At most, 250 copies of the Trentonian circulated in Camden County. In contrast, Burlington County consisted of largely rural areas with an African-American population of only fourteen percent.
The trial court concluded that the racial demographics of the counties were virtually identical and that the circulation of the Trenton newspapers in Burlington County was not large enough to prejudice defendant. Relying upon the considerations of proximity and efficiency, it chose Burlington County as the source for selection of the jury.
Defendant finds it to be a paradox that although the relatively large local circulation of the Trenton papers had motivated the trial court to reject Burlington County in the first instance (Hunterdon's circulation of 3,000 having been preferable to Burlington's circulation of 22,000), when required by the Appellate Division to reconsider, the court chose Burlington County over Camden even though the circulation figures were more widely disparate: Burlington's 22,000 copies compared with Camden's 250. The trial court held that the extent of news coverage in Burlington County should not be decisive because even if the case were tried "on the Ross Ice Shelf [in Antarctica], it would generate publicity. There is no way to avoid that."
Defendant argues that because the goal is to "minimize the danger that prejudice [from extensive pretrial publicity] will infiltrate the adjudicatory process," Koedatich I, supra, 112 N.J. at 268 (quoting Williams I, supra, 93 N.J. at 63), the most effective method of minimizing the potential was to select a jury from a county which was outside of the circulation range of the Trenton newspapers.
Defendant would prevail if the court had taken no other steps to minimize the danger that prejudice would infiltrate the adjudicatory process. The court took firm steps to ensure that none of those households that received the Trentonian (the newspaper containing the most inflammatory material) would be on this jury. A questionnaire specifically inquired whether a potential juror had read the Trenton newspapers. Any juror who regularly read the Trentonian was effectively subject to elimination for cause in the jury selection process. In addition, the court ensured that during the course of the trial most jurors were assembled at the Burlington County Court House and transported directly to the Mercer County Court House with attempts to minimize the exposure to the hawking of papers en route to the court house.
Although the court empaneled the jurors from Burlington County, the net effect was not significantly different than if the jury had been from Camden County. As noted, the racial demographics of the two counties were substantially similar, although Camden is more urban. When the jury panel was finally composed, it included two minority members. The court systematically excluded readers of the Trentonian from the panel of jurors. (The court's initial goal was to select sixty jurors and eventually qualified forty-nine jurors on the day before trial was to commence on January 3, 1996.) The principal risk of jury contamination in this case arose in Mercer county and not in the home counties of the jurors. It made little difference whether the jurors were from Burlington or Camden counties.
Defendant contends that assuming that it was not an abuse of discretion to employ an out-of-county jury, the court's refusal to question jurors individually concerning any possible exposure to inherently prejudicial midtrial publicity deprived defendant of a fair trial. Defendant specially challenges the penalty-phase portion of the trial. After the guilt verdict was returned, defense counsel moved for sequestration of the jury and that the court conduct an individual voir dire. Counsel argued that jurors, particularly juror number seven, may have been exposed to prejudicial publicity that the jurors might have been reluctant to discuss in a group setting.
Dramatically prejudicial headlines were attendant to the guilt-phase deliberations. The Trentonian headlines read, "One Juror Stalls Verdict," and "Battling Harris Jury Draws Public Fire." A feature story quoted a Trenton resident as expressing the opinion that "[m]ost people figure the jury would think, `We'll have lunch on the county, and we'll squirt him--this afternoon.'" Similar publicity continued during the penalty phase. A headline such as "Ambrose Eyed in '67 Slay." An editorial recommended death for Harris. The day after the jury returned its guilt verdict, a front-page photograph of Harris ran over a caption which read, "So why's this killer smiling? Because he's seen juror No. 7 crying, and he thinks she'll never go for the death penalty."
Defense counsel acknowledge that whenever they requested the court to question jurors concerning any prejudicial headlines and accounts, the court did ask the jurors to acknowledge by a show of hands if they had seen or read any news accounts of the trial and that on each of these occasions it received no response. But defendant argues that because of the inherently prejudicial nature of these articles, particularly those that singled out a specific juror, the court should have granted defense counsel's request for an in camera individual voir dire of the jurors. (In camera individual voir dire means one-on-one interviews between the Judge and each juror, without the press or the public present.)
Bey I, supra, 112 N.J. 45, presented a similar issue. In that case the defendant had been charged almost simultaneously with two murders in the same county. Because the defendant had not been convicted of either murder, evidence of the other murder was inadmissible at the first guilt-phase trial. During voir dire, the court questioned jurors concerning exposure to any pretrial publicity and admonished prospective jurors not to read newspaper accounts of the case. These protective instructions were repeated frequently at trial. After the commencement of trial, a newspaper circulating in the county printed articles concerning the other murder and also published a strongly worded commentary criticizing sentences in other murder cases as overly lenient. Id. at 79-80.
Defense counsel produced the articles and requested a mistrial or, in the alternative, that the jury be polled concerning any exposure. The court declined to question the jury with respect to any exposure to the newspaper articles, relying on the presumption that jurors would faithfully adhere to the court's instruction. Id. at 80.
Notwithstanding the general presumption that jurors act in good faith and seek to comply with a court's instructions, we held that general warnings not to read trial publicity are inadequate when inherently prejudicial information has been published during a trial and it is likely that one or more jurors may have been exposed to the publicity. Id. at 81. If a court is satisfied that published information has the capacity to prejudice a defendant, the court should first "determine if there is a realistic possibility that such information may have reached one or more of the jurors." Id. at 86. If such a "possibility exists, the court should conduct a voir dire to determine whether any exposure has occurred." Ibid. In a footnote, the Court wrote that "[t]hough the form and content of this initial questioning is better left within the trial court's sound discretion, we note that a practice of polling the jurors individually, in camera, is likely to be more effective in uncovering any exposure than is questioning the jury en banc, in open court." Id. at 86 n.26. Justice Stein further prescribed that [i]f there is any indication of such exposure or knowledge of extra-judicial information, the court should question those jurors individually in order to determine precisely what was learned and establish whether they are capable of fulfilling their duty to Judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court.
We reversed the conviction in Bey I because the court refused to question the jurors in accordance with defense counsel's request. We observed that "[s]uch an inquiry might have revealed that no exposure to the publicity had occurred at all." Id. at 91. That scenario did not occur in this case. Harris' jurors were questioned generally and that inquiry revealed that no exposure had occurred.
United States v. Bermea, 30 F.3d 1539 (5th Cir. 1994), cert. denied sub nom. Rodriguez v. United States, 513 U.S. 1156, 115 S. Ct. 1113, 130 L. Ed. 2d 1077 (1995), is similar. After instances of possible exposure to inherently prejudicial publicity had been brought to its attention, the court conducted a collective voir dire. The negative response received on each occasion disclosed that jury exposure did not occur and supported the court's discretionary decision that individual voir dire was unnecessary. The Bermea court wrote: "We have found nothing in our cases to support a rule that midtrial publicity requires individual voir dire even after the district Judge has made a collective inquiry to the jury and received no positive response." Id. at 1560; see also United States v. Tolliver, 61 F.3d 1189, 1204 (5th Cir. 1995) (holding that a two-step inquiry is necessary to assess whether individualized voir dire is necessary because of midtrial publicity, concerning the nature of the media coverage and its prominence).
In Bey I, the court was at pains to point out that "with respect to the trial court's failure to poll the jury about exposure to media reports, we have gone no further than to adopt the approach accepted by the majority of states that have considered the matter for capital and non-capital cases alike." Bey I, supra, 112 N.J. at 92. Had we intended to go further than prevailing practice on the question of exposure to midtrial publicity, we should have done so explicitly. Not having done so in Bey I, a denial of individual voir dire should not form the basis for reversing a conviction when there is no evidence of exposure.
Unlike in Bey I and Bermea, in which the jurors were exposed in their homes to newspapers and television accounts of inherently prejudicial material, the jurors in this case were not exposed to publicity in their homes. The question was whether, in their travels by bus in and out of the county and in their trips for lunch, they would have read and been influenced by the prominently displayed headlines of the tabloid newspaper involved. In such circumstances, the collective voir dire was acceptable.
A question may arise whether we should reconvene the jury and poll the members individually to determine whether any individual juror was, in fact, exposed to prejudicial midtrial publicity. In Koedatich I, supra, 112 N.J. 225, defendant sought to question jurors after his trial. He relied on a newspaper article that quoted some jurors as having knowledge of his involvement in a second murder. We held that questioning jurors after a trial is "an extraordinary procedure" that should be invoked only when there is a strong representation that a defendant may have been harmed by juror misconduct. Id. at 288 (quoting State v. Athorn, 46 N.J. 247, 250, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966)). We did not wish to create a situation where "disappointed litigants would be encouraged to tamper with jurors to harass them and to employ fraudulent practices in an effort to repudiate their decisions." Ibid. (quoting Athorn, supra, 46 N.J. at 250). Nor did we wish to extend "an open invitation . . . to any disgruntled juror who might choose to destroy a verdict to which [the juror] had previously assented." Ibid. (quoting Athorn, supra, 46 N.J. at 250). Privacy and secrecy must attach to the process, not only to promote the finality of jury verdicts but also to aid the deliberative process itself, allowing each juror the freedom to discuss his or her thoughts. Ibid. For the same "strong policy reasons" that led us to the decision not to interrogate the Koedatich jury, Koedatich, supra, 112 N.J. at 288-90, we ought not reconvene the jury that convicted and sentenced defendant.
D. Refusal to Sequester Jury
On February 22, 1996, prior to the commencement of the penalty phase, defense counsel moved to sequester the jury. The impetus for this motion was a "new direction" that the publicity had taken. The February 21, 1996, edition of the Trentonian contained in bold type the bold headline, "Guilty," over a picture of Mr. Harris with a caption, "So why's this killer smiling? Because he's seen juror No. 7 crying, and he thinks she'll never go for the death penalty." Several days before, while the jury was deliberating defendant's guilt, a cover page headline said, "One Juror Stalls Verdict." Defendant describes this as a clear attempt by the media to seek to influence or intimidate this jury, and, more specifically, to intimidate, by personal attack, a single juror who happened to be a black female.
In this context, sequestration of jurors means that jurors would not return to their homes at the end of a day of trial and would be housed by the court, take all meals, and receive outside information under the supervision of court officers. See Marcy Strauss, Sequestration, 24 Am. J. Crim. L. 63, 66 (1996). This is not to be confused with the sequestration of witnesses, the practice of not allowing prospective witnesses to hear the testimony of other witnesses, the theory being that the witnesses might shape their testimony to that which they have heard.
Defendant emphasizes that under our prior death-penalty practice, sequestration of the jury was required at all times in capital cases. State v. Pontery, 19 N.J. 457, 479 (1955) (Heher, J., Concurring). It was not until September 5, 1972, that Judges were permitted to disperse a criminal jury during deliberations. Pressler, Current N.J. Court Rules, comment 3 on R. 1:8-6 (1998). The Sub-Committee on Jury Deliberations of this Court's Criminal Procedure Committee, which recommended the 1972 rule change, suggested that sequestration after commencement of deliberations be a discretionary decision for the trial court based on such factors as the nature of the case, the identity of the defendant, the length of the trial, and the kind of public interest evidenced on the day and the hour when deliberations begin. More importantly, the Committee recommended that the presumption against sequestration, which applies during the course of the trial, not carry over to the deliberations phase. Ibid.
We acknowledge that sequestration was once considered the norm during jury deliberations in criminal cases, where the need to protect jurors from the outside influences of pretrial publicity was a constant. Allen, supra, 73 N.J. at 155 (Pashman, J., Concurring). Yet, sequestration did not originate as a means of preserving juror impartiality.
Rather than to protect the defendant by keeping the deliberating jurors from being improperly influenced by contacts with or communication from outside sources, it appears that the purpose of the ancient common law practice of keeping the jurors locked up without food or drink and sometimes without heat and light until they have reached a verdict was simply to force them to agree.
[Strauss, supra, 24 Am. J. Crim. L. at 70-71.]
Because trials then generally lasted less than a day, this ancient requirement was "less onerous in practice than may appear on first glance." Id. at 71. The "trend of modern decisions seems to be constantly tapering off from the ancient idea that the confinement of the jury in a criminal case is a prerequisite to insure an uninfluenced verdict." Id. at 72.
The principal reason for the decline in sequestration is the burden it imposes on the judicial system and on jurors themselves. Sequestration has been described as "a glorified prison," where "[e]very contact to the outside world is censored," and where "[e]verything the sequestered jury reads, hears, and sees is monitored." Christo Lassiter, TV or Not TV--That Is The Question, 86 J. Crim. L. & Criminology 928, 986 (1996). Such conditions can cause feuding among jurors and can motivate jurors to rush their deliberations. Id. at 985-86.
In addition, even a short sequestration will reduce the number of potential jurors because the prospect of sequestration will deter many potential jurors from serving. Id. at 985. In one highly publicized case, ninety-five percent of the nearly 4500 potential jurors said that sequestration would impose a prohibitive hardship. Mark Hansen, Sequestration: Little Used, Little Liked: Tensions on Simpson Jury Could be Symptom of Record Confinement, 81 A.B.A.J. 16, 17 (Oct. 1995).
Sequestration has thus been viewed as a "drastic remedy [that] cannot be recommended lightly." United States v. Simon, 664 F.Supp. 780, 794 (S.D.N.Y. 1987), aff'd sub nom. In re Application of Dow Jones & Co. v. Simon, 842 F.2d 603 (2d Cir.), cert. denied sub nom. Dow Jones & Co. v. Simon, 488 U.S. 946, 109 S. Ct. 377, 102 L. Ed. 2d 365 (1988). Although the trial court did alert the jurors during orientation that they might be sequestered for several days during deliberations, the court was understandably reluctant to sequester the jury on the basis of the contemporaneous publicity reported in the Trentonian. As near as can be determined from this record, no prejudicial publicity appeared on any of the televised news broadcasts to which the jurors might have been exposed in their homes, nor in any of the other newspapers circulating in the State. The jurors chosen tended not to read the Trentonian. Because the overnight activities of the jurors did not pose a threat of taint and because there is no indication of any actual exposure during the jurors' lunch hours, it was not necessary to sequester the jury.
A. Motion to Empanel Separate Guilt-and Penalty-Phase Juries
Before trial, defendant requested that the court bar the State from introducing evidence of defendant's prior criminal record or, in the alternative, that the court empanel separate guilt-phase and penalty-phase juries. The trial court denied defendant's motion. The court found that defendant possessed an "extensive criminal record which could be used to impeach him in the event he elects to testify during the guilt phase of the trial." Defendant had been convicted of possession of stolen property, larceny, burglary, robbery, attempt to commit robbery, and unlawful possession of a weapon for unlawful purposes. The court found that use of defendant's criminal record would not prejudice defendant at the penalty phase. The court relied on two considerations. First, the court found that "sanitizing" defendant's criminal record, as required by State v. Brunson, 132 N.J. 377 (1993), would lessen the possibility of prejudice considered in State v. Erazo, 126 N.J. 112 (1991) and State v. Monturi, 195 N.J. Super. 317 (Law Div. 1984). Under Brunson, supra, a prosecutor may impeach a defendant's credibility by introducing evidence of prior criminal convictions. 132 N.J. at 394. However, if the past crimes are similar to the instant charge, the prosecutor may only inform the jury of the degree of the prior crimes and the dates of conviction. Ibid. Counsel may not specify the nature of the offenses. Ibid. The trial court found that the Brunson decision obviated the need for separate guilt-phase and penalty-phase juries. Second, the court found that selection of a foreign jury would "reduce the possibility that the jurors will be aware of the exact nature of defendant's crimes by virtue of pretrial publicity."
Despite his expressed desire to testify without regard for the trial court's decisions on these issues, defendant did not testify during the guilt phase. Defendant argues that the trial court's ruling prevented him from testifying, denying him his Sixth Amendment rights to a fair trial, because he was unable to present fully his contention that Gloria Dunn was in fact the trigger person causing Kristin Huggins' death. Defendant contends that the use of his criminal record for impeachment purposes, while proper during the guilt phase of the trial, would have led the jury to improper consideration of that evidence during the penalty phase. During voir dire, six of the jurors who ultimately went on to deliberate expressed the opinion that defendant's criminal record would be a relevant consideration during sentencing. Defendant contends that no limiting instruction would have been effective.
Trial courts are authorized to empanel separate guilt-phase and penalty-phase juries in capital murder cases. N.J.S.A. 2C:11-3c(1) provides, in part:
Where the defendant has been tried by a jury, the [penalty] proceeding shall be conducted by the Judge who presided at the trial and before the jury which determined the defendant's guilt, except that, for good cause, the court may discharge that jury and conduct the proceeding before a jury empaneled for the purpose of the proceeding.
Thus, although a single jury is preferable, State v. Biegenwald, 126 N.J. 1, 44 (1991) (Biegenwald IV), a trial court may, for good cause, empanel two juries. That decision rests in the sound discretion of the trial Judge. State v. Long, 119 N.J. 439, 475 (1990).
"One of the purposes of the bifurcated-trial system established by the New Jersey Death Penalty Act is to prevent the jury's determination of death-eligibility from being influenced by evidence relevant only to adJudgement of the appropriate sentence." Biegenwald IV, supra, 126 N.J. at 44. Evidence of other crimes has the capacity to prejudice the penalty-phase proceedings of a capital murder case. Erazo, supra, 126 N.J. at 132; State v. Moore, 113 N.J. 239, 276-77 (1988). "With the stakes so high, the possibility of prejudice on the penalty phase persists as a cause for continuing concern." Erazo, supra, 126 N.J. at 132. The use of two juries "commends itself when guilt-phase evidence is so prejudicial that the same jury could not fairly sit on both phases of the trial." Id. at 133 (citing Monturi, supra, 195 N.J. Super. 317). One instance in which the Court has required separate juries is when the State relies on aggravating factor c(4)(a), conviction of another murder. See Biegenwald IV, supra, 126 N.J. at 43-44 (recognizing "that our finding that defendant is entitled to voir dire potential jurors on the possible blinding impact of the c(4)(a) factor most likely will require a two-jury system for all capital cases in which the State seeks to prove that factor").
Except for that specific category of cases (in which it is inevitable that a reverse spillover will taint the guilt phase of a capital trial), a motion for separate guilt- and penalty-phase juries should be decided at the close of the guilt phase of a criminal proceeding. The statute contemplates that procedure. It is then that a trial court may properly assess whether prejudicial evidence has been presented to the jury. In Monturi, supra, Judge Stern addressed a defendant's pre-trial motion to empanel separate guilt- and penalty-phase juries. 195 N.J. Super. at 321-23. The defendant was accused of two murders and two counts of conspiracy to commit murder as well as a number of unrelated, "post-murder" crimes. The court found that some evidence necessary to prove guilt of the "post-murder" offenses would be inadmissible during the penalty phase. Id. at 326. "Nevertheless, to preJudge the evidence and order pre-trial that the case be tried to separate juries would be imprudent." Id. at 327. The court withheld decision on the issue of separate juries, suggesting that a court should wait until the end of the guilt phase to decide if the evidence presented was prejudicial in fact or would be admissible in some way during the penalty phase of the proceeding. Id. at 329-30. The potential introduction of Harris' sanitized prior convictions did not pose so grave a risk of prejudice as to warrant before trial the empanelment of two juries.
We will not speculate whether the trial court's decision prevented defendant from testifying. There are many factors that influence that decision. Defendant stated that he would testify regardless of the court's decision to admit his criminal record or empanel only one jury. It may be, then, that some other consideration prevented defendant from testifying.
The trial court did not abuse its discretion in failing to empanel two juries before trial. Whether a guilt-phase jury's exposure to a "Brunsonized" version of a criminal defendant's prior record of convictions rises to the level of "good cause" required under N.J.S.A. 2C:11-3c(1), must remain in the sound discretion of the court. We can envision circumstances in which evidence of other "unsanitized" convictions, such as child sexual abuse, might pose a potential for impermissible spillover into the penalty phase thus requiring two juries. See Erazo, supra, 126 N.J. at 132-33.
B. Jury Selection Process
Defendant contends that the trial court, without proper justification, excluded defense counsel from direct participation in jury selection and, remaining insensitive to counsel participation throughout jury selection, proceeded to conduct an entirely valueless voir dire. He contends that the jury voir dire was so inadequate that he was denied his right to a fair trial by an impartial jury. Although his argument states a broad-based challenge to the trial court's conduct of voir dire, there are distinct aspects to the challenge: (1) whether the trial court improperly terminated attorney-conducted voir dire; (2) whether the overall quality of the voir dire was insufficient to enable counsel to exercise peremptory challenges with respect to issues such as the presumption of innocence, the exposure to publicity, and the awareness of other crimes on the defendant's part; (3) whether the court failed to explore a potential racial bias of jurors; and (4) whether the court failed to excuse for cause jurors whose views substantially interfered with their ability to be fair and impartial.
The death-qualification and jury selection process is "important, delicate, and complex," and requires a "thorough and searching inquiry" into jurors' opinions and biases. State v. Williams, 113 N.J. 393, 413 (1988) (Williams II). Under our single-jury capital trial system, jury selection must serve double duty as both a time to "death qualify" jurors and a time to enable counsel to exercise the valuable constitutional prerogative of selecting a fair and impartial jury. The two purposes of the inquiry tend to overlap. See State v. Zola, 112 N.J. 384, 398 (1988), cert. denied sub nom. Zola v. New Jersey, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Significant inquiry into jurors' feelings, views, and attitudes on the death penalty and relevant issues in a case is required in capital voir dire. We have therefore encouraged open-ended questioning. We have strongly disapproved closed-ended questions that predetermine answers or elicit narrow yes-or-no responses. Williams II, supra, 113 N.J. at 423. We have encouraged the formulation of additional questions that will provide insight into a juror's views on a subject in controversy. Obviously, a court must control voir dire examination, but in doing so it must remain neutral. The court must not proselytize, and it must not indicate in any way its views of the "right" or "wrong" answers to voir dire questioning. The voir dire should be probing, extensive, fair, and balanced. Such voir dire is the essential predicate to securing a jury with the strong sense of fairness necessary in a capital prosecution. We have repeatedly stressed that the need for jury impartiality is heightened in cases in which the defendant faces death. Williams I, supra, 93 N.J. at 61. We have therefore repeatedly held that in capital cases trial courts should be especially sensitive to permitting attorneys to conduct a portion of voir dire. Biegenwald II, supra, 106 N.J. at 30. It is against these standards that we must assess the conduct of the voir dire in this case.
1. Court Conducted Voir Dire
Prior to the commencement of jury selection, the parties agreed that the court would begin the questioning of jurors and allow each side an opportunity to ask follow-up questions. In the course of the first several days, sixty potential jurors were dealt with in this manner. The overwhelming majority were excused for various hardships. Seven were fully questioned and four were qualified for service. On the fourth day of jury selection, the court reached the belief that defense counsel had asked questions designed to confuse and exhaust the potential jurors, citing the questioning of two excused jurors in particular. The court concluded that counsel was using the procedure to shop for a jury favorable to the defense. Defendant argues that pursuant to Biegenwald IV, supra, 126 N.J. 1, there is nothing wrong with shopping for jurors and that his questioning of these jurors was appropriate. The attorney-conducted voir dire resulted in excusals for cause of each of the disputed jurors, one having subscribed to the philosophy of "an eye for an eye" and another stating, "You take a life, you give your life." Both beliefs constituted sound bases for excluding the jurors. Hence, defendant argues that it was inappropriate to curtail attorney participation.
The basic issue was resolved by our decision in Biegenwald II, supra, 106 N.J. 13. We there held applicable to capital cases the rule of State v. Manley, 54 N.J. 259, 281 (1969), as well as Rule 1:8-3a, which states that for purposes of determining whether a challenge should be interposed, "the court shall interrogate the prospective juror." Biegenwald II, supra, 106 N.J. at 28-29. It may be unwise but it is not unconstitutional for a court exclusively to conduct voir dire in capital cases. Whether conducted by court or counsel, voir dire is not an end in itself, but rather a means to select an impartial jury. Long, supra, 119 N.J. at 479. The question is whether, despite excluding counsel, the court provided a "thorough and searching inquiry" into the jurors' attitudes and biases. The general tenor of voir dire in this case was that the court, in consultation with counsel, first reviewed a questionnaire that it had submitted to all jurors. The questionnaire covered issues such as racial attitudes and exposure to pretrial publicity. Submission of the questionnaire followed a general orientation of jurors in which the court outlined the contours of the case, what the issues were, and how long it would take. As the jurors were called individually, the court addressed general questions to them concerning their ability to follow the death penalty law and concerning specific issues raised by their answers to the questionnaire. During the course of the questioning, many jurors candidly admitted that they were biased, had been exposed to pretrial publicity, or had formed opinions of guilt.
As noted, the court initially commenced voir dire with counsel asking follow-up questions. The court's decision to curtail counsel's role produced a curious contretemps. Even as court and counsel were debating their proper roles, prospective jurors were reading contemporaneous accounts in the Trentonian reporting with editorial approval that the court had cut down the role of Harris' defense attorneys, implying that an attorney who zealously pursues his client's SixthAmendment rights is an obstructionist. We would have preferred that the court have permitted direct participation by counsel in the voir dire process. The trial court reasoned that counsel were posing hypothetical questions to the jurors that were inconsistent with the capital sentencing scheme and that were designed to confuse potential jurors. Rather than cut off all questioning, the court could have controlled such questioning. We are not so certain that there was any great savings of time through a court-conducted voir dire. There were frequent side-bar conferences following the court's questioning, resulting, at times, in ten or fifteen minutes of objection to the court's questioning. The time might better have been spent in allowing counsel seven to ten minutes of direct questions of their own.
Nonetheless, the court-conducted voir dire was sufficiently probing to meet constitutional standards. The court discharged every juror who responded "unsure" on the questionnaire concerning whether the race of defendant and the victim would affect his or her judgment. Almost every regular reader of the Trentonian was excused either because they had learned extraneous information concerning the defendant or had formed an opinion as to his guilt. At first, the court asked closed-ended questions about jurors' attitudes concerning whether they would be able to consider mitigating factors in the context of a murder accompanied by rape, robbery, and kidnapping. The court frequently followed up with open-ended questioning sufficient to draw out their attitudes, explaining on one occasion, "The court is just trying to understand your feelings." The court was not insensitive to counsel's requests for further inquiry. Very early on, the court agreed to ask more open-ended questions concerning the jurors' understanding of the meaning of the presumption of innocence. For example, one prospective juror was asked, "What do you understand the presumption of innocence to mean?" This type of questioning furnished counsel with a good insight into the jurors' understanding of such concepts.
Concerning the issue of death-qualification, there can be no doubt that the court's questioning was sufficiently probing to provide a fair and impartial jury. The court began the questioning of each juror with open-ended questions about their general attitudes concerning the death penalty. The court then went through the specific pattern of the death penalty, inquiring if the jurors could follow the law. In this way the court was able to root out many jurors who found it "pretty difficult" to assess mitigating factors or did not "want to hear" about a defendant's troubled life. Jurors who expressed philosophies such as "the punishment fits the crime," "it's worse if they had to stay thirty years in prison," or "I would go with death no matter what the background" were excused.
On potential racial bias, many jurors candidly expressed on their initial questionnaires that they were unsure whether race would affect their determinations. These jurors were immediately excused by the court. The court's own questioning on race was initially closed-ended, usually asking whether the fact that the victim was white and the defendant black would affect their ability to be fair and impartial. Defense counsel strongly protested such closed-ended questioning, describing the case as "every suburban housewife's worst nightmare, . . . an interracial crime to the nth degree." Defense counsel are sometimes criticized for their advocacy roles in the conduct of criminal trials. Had defense counsel in this case been obstructive, they could have sat back and let the voir dire on racial attitudes of jurors proceed with built-in error that would most likely have guaranteed a new trial for the defendant had the verdict been unfavorable. See Rosales-Lopez v. United States, 451 U.S. 182, 191, 101 S. Ct. 1629, 1635, 68 L. Ed. 2d 22, 30 (1981); Ristaino v. Ross, 424 U.S. 589, 597, 96 S. Ct. 1017, 1021, 47 L. Ed. 2d 258, 264 (1976); State v. Ramseur, 106 N.J. 123, 246 (1987); see also post at ___ (slip op. at ___) (Handler, J., dissenting). Knowing that their obligation as attorneys was to insure a trial that was fair to both the defendant and to the State, defense counsel sought leave to appeal the court's ruling on questioning on cross-racial bias. Although the Appellate Division did not grant leave to appeal, the doubts expressed by one member of that panel and the pendency of an application for single-Justice relief to this Court occasioned the State and defense to agree on a series of ten questions that would have better explored cross-racial attitudes. The trial court did not accept the ten agreed-upon questions, although it did agree to ask several of the questions. (On the choice of questions, defendant disputed the value of the court's asking white jurors if they had ever experienced feelings of discrimination, asking rhetorically whether it could be that black people would not have let whites move into their neighborhoods. In fact, some of the white jurors did report experiences of felt discrimination.) The most significant question asked was whether or not the defendant's repeated reference to Kristin as a "white bitch" would affect potential jurors' deliberations. The question was frequently phrased as whether that fact, standing alone, would affect their deliberations. Defendant appealed again to the court to be more open-ended in its questioning. The court appeared concerned that by doing so it would inject into the case an issue of racism that it did not perceive to be present in the case. The court may have sensed that to describe the case as a bias crime would have crossed the line defined in State v. Carter, 91 N.J. 86 (1982). In that case the prosecution was criticized for attributing a racial bias for a crime when one did not exist. We said "[t]here is no place in the courtroom for . . . group labeling." Id. at 105.
Still, the questioning was sufficiently probing to enable court and counsel to gain a perception of jurors' attitudes. As the questioning of jurors continued, more open-ended questions, asking how the issue of race would weigh in their deliberations, produced more open-ended responses. The court excused one juror who "left [the court with] a lingering feeling about race."Jurors who had initially been qualified without the later, more extensive questioning on race were recalled for further questioning. Some expressed reservations, saying "I wonder if I could be fair;" "I would certainly try;" "it might be somewhat of a factor, all those [racial] things." One juror expressed the view that Harris "was a bit of a racist, taking his anger out on her because she was white or something." Fortunately, all jurors were asked during initial questioning fairly open-ended questions concerning attitudes they might have had about the O.J. Simpson trial, the highly-publicized trial of a celebrity athlete accused of a cross-racial murderand a case that stirred deeply emotional responses and polarized attitudes between whites and blacks. The combination of questioning on the Simpson case and the later more open-ended questioning produced a voir dire that was sufficient to probe jurors' racial attitudes and biases. As noted, many jurors were extraordinarily candid in expressing their hesitation about impartiality in a case of cross-racial sexual attack. It strikes us that the court may have relied too much on its intuitions about the fairness of potential jurors after observing their demeanor. Still, to observe a juror answering questions is an invaluable asset. The prosecutor observed that seeing one juror "biting her lips" and "breathing very hard" during questioning left those in the courtroom with impressions that cannot be perceived in reading a cold record.
On balance, the voir dire insured that counsel were sufficiently informed to exercise their peremptory challenges and that a properly-qualified, fair and impartial jury was selected. The court was consistent in its rulings. In many ways, defendant was his own worst enemy. During at least two orientation sessions, jurors observed defendant making an obscene gesture to the Judge. In the thirty-nine days of jury selection, there was not one bitter exchange between court and counsel. Although court and counsel disagreed strenuously on their understanding of the law, the court never failed patiently to consider, even if it did not accede to, counsel's requests. Counsel would have been better served had they more sharply focused their requests for follow-up questions than to have presented the court with a preprinted series of follow-up questions. On many occasions when counsel focused on a specific area the court did follow with more questions.
2. Jurors Excluded For Cause
We have considered whether the exclusion of two prospective black jurors, Harry Corbett and Margaret Proctor, violated defendant's constitutional rights. Under the Adams/Witt test *fn3 that this Court adopted, the right to an impartial jury prohibits the exclusion of jurors for cause in capital cases unless their stated opposition to the death penalty would prevent or substantially impair the performance of their duties as jurors.
Over defense objection, the trial court excused Corbett because of his views on capital punishment. Defendant complains that the court's actions were premature because they were taken without first fully explaining the law or the duties and obligations of a capital juror.
We disagree that it was premature to have excused juror Corbett. The court had questioned Corbett for several minutes before the concern arose. In the preceding questions, he had been asked about the standard of proof and whether he would be able to decide the case based upon a standard of proof which is beyond a reasonable doubt. He answered, "I imagine I would." The court continued: "Do you have any doubt in your mind about your ability to do so?" Corbett answered, "I believe I'd be able to Judge this case for guilt or innocence but I do have reservations about life or death." The court asked, "What are your reservations about life or death?" Corbett answered, "Historically, the death penalty has been disproportionately applied against minority and poor people. That's the reservations that I have."
The court acknowledged that his was a concern "shared by many people." Nonetheless, the court asked, "Will those concerns [about disproportionality] affect your ability to decide this case on its own merit?" After repeating his willingness to come to a "reasonable conclusion" as to guilt or innocence, there was a pause. The court asked the juror if he found the State had proven "whatever it has to prove to obtain a death sentence," would "your concerns about this disproportionate application of the death penalty preclude you from following what your mind tells you is the proper verdict?" Corbett replied, "Truthfully, honestly, I can't answer that. I guess I just don't know at this time." Corbett was an intelligent juror. We cannot fault the court for concluding that these honestly held convictions would substantially interfere with the juror's obligations to apply the law. The question of disproportionality in sentencing is one that this Court will ultimately have to decide.
Margaret Proctor was another prospective juror whom the trial court excused over defense objections because of her views on capital punishment. Although Mrs. Proctor stated, "I believe in the death penalty," the court excused her because she believed that all criminals were capable of being rehabilitated except those who kill over and over again. Defendant challenges the excusal as premature. Defense counsel asked the court to give further explanation of the legal definition of murder but the ...