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State v. Timmendequas

August 11, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JESSE TIMMENDEQUAS, DEFENDANT-APPELLANT.



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

Argued December 1, 1998

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

In May 1997, a jury convicted defendant Jesse Timmendequas of the capital murder of Megan Kanka, committed in the course of a kidnapping and sexual assault. Following a penalty-phase proceeding on the capital-murder conviction, the court sentenced defendant to death. He appeals directly to this Court as of right. See R. 2:2-1(a)(3). We affirm defendant's conviction for murder and his sentence of death.

I.

Procedural History

On October 19, 1994, Jesse Timmendequas was charged with: knowing or purposeful murder of Megan Kanka by his own conduct, in violation of N.J.S.A. 2C:11-3a(1) or (2) (count one); felony murder, in violation of N.J.S.A. 2C:11-3a(3) (counts two and four); first degree kidnapping, in violation of N.J.S.A. 2C:13-1b (count three); and first degree aggravated assault, in violation of N.J.S.A. 2C:14-2a(1) (counts five, six, seven and eight).

On November 18, 1994, the Mercer County Prosecutor's Office filed a Notice of Aggravating Factors. The aggravating factors were: (1) the murder was committed to escape detection, apprehension, trial, punishment or confinement for the aggravated sexual assault and/or kidnapping of the victim, N.J.S.A. 2C:11-3c(4)(f); and (2) the murder was committed in the course of the commission of an aggravated sexual assault and/or kidnapping of the victim, N.J.S.A. 2C:11-3c(4)(g). On June 29, 1995, defendant moved to change the trial venue from Mercer County. On October 20, 1995, the trial court granted the motion, setting venue in Camden County. On December 15, 1995, the State moved for reconsideration, asking the court either to empanel a foreign jury or change the venue to a county contiguous to Mercer. On December 21, 1995, the court granted the State's motion, holding that a foreign jury would be empaneled from Camden County. The court then invited the parties to submit briefs on the option of empaneling a foreign jury from a contiguous county. On January 29, 1996, the court chose Hunterdon County as the source of the foreign jury.

Pre-trial hearings also were held on various evidentiary issues. Defendant's motion to employ a struck jury system and to permit attorney participation in voir dire was granted. The court ruled that all of defendant's statements to police were admissible. The court also dismissed defendant's motions: to suppress evidence obtained during a consent search and a search authorized by warrant; to dismiss the indictment due to prosecutorial misconduct before the grand jury; to select a fourteen-person jury; and to consolidate all murder offenses.

The court further denied defendant's motion to exclude from the jury pool all jurors with knowledge of "Megan's Law," holding that the court would advise prospective jurors of defendant's prior record. That record included convictions for the aggravated sexual assault of a young girl in 1982, sexual assault and attempted aggravated assault in 1982, and theft of a vehicle in 1980. Defendant sought interlocutory relief from the Appellate Division. The Appellate Division declined to intervene, but directed the trial court not to advise jurors of defendant's prior convictions. It also ordered the court to prepare in writing the questions it intended to ask potential jury members. A subsequent application for interlocutory relief based on the trial court's prepared questions was denied by the Appellate Division. Defendant's motion with this Court for leave to appeal also was denied.

Jury selection for the trial began in Hunterdon County on January 13, 1997. On April 15, 1997, defendant moved for reconsideration of the change of venue decision and requested that jury selection be moved to Camden County. That motion was denied. A jury was selected on April 21, 1997, following individual interviews of 331 prospective jurors. Defendant subsequently renewed his change of venue motion; again, it was denied.

The guilt phase was held from May 5 to May 30, 1997. Defendant was convicted on all counts. The penalty phase was held from June 9 to June 20, 1997. Defendant alleged as mitigating factors: that he was under the influence of extreme emotional disturbance, pursuant to N.J.S.A. 2C:11-3c(5)(a); that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect, pursuant to N.J.S.A. 2C:11-3c(5)(d); and twenty-two circumstances of his upbringing under the "catch-all" mitigating factor, N.J.S.A. 2C:11-3c(5)(h).

The jury concluded that the aggravating factors outweighed the mitigating factors. "By virtue of the verdict," the court sentenced defendant to death. On July 30, 1997, defendant was sentenced on the non-capital counts of the indictment. The felony murder convictions, counts two and four, were merged into murder (count one). Defendant was sentenced to life imprisonment on that count, in the event that his death sentence was vacated. Counts five through eight, the aggravated sexual assault convictions, were merged with the kidnapping conviction (count three). Defendant was sentenced to life imprisonment on the kidnapping charge, with 25 years of parole ineligibility, to run consecutive to count one. Defendant was also required to pay a Violent Crimes Compensation Board penalty of $100. Defendant filed a Notice of Appeal.

II.

The Trial

A. Guilt Phase

The victim, Megan Kanka, lived at 32 Barbara Lee Drive in Hamilton Township with her parents, Maureen and Richard Kanka, and her two siblings. Defendant lived diagonally across the street at 27 Barbara Lee Drive with Brian Jenin, Joseph Cifelli and Cifelli's mother.

Megan's mother was the first witness for the State. She testified about the events on July 29, 1994, the night of Megan's disappearance. Mrs. Kanka testified that she took a nap at approximately 6:30 p.m. While she was sleeping, Megan went down the street to visit a friend. When Mrs. Kanka awoke, she could not find Megan. The Kankas asked neighbors if they had seen Megan. A number of the neighbors, including defendant, told Mrs. Kanka that they had seen Megan in the neighborhood earlier that day. Defendant also told the Kankas he had seen Megan before dinner when she and her friend Courtney stopped to talk to him about his new boat, which was on the street in front of his house.

Shortly after Megan's disappearance, Mrs. Kanka called the police. When they arrived at Barbara Lee Drive, she gave them a photograph of her daughter and a description of the clothing Megan was wearing. She also gave the police a pair of shorts resembling those that Megan was wearing when she disappeared.

Hamilton Township Patrol Officer Paul Seitz testified that he and Officer Mike Smith arrived at the Kanka's residence at 8:49 p.m. After searching the Kanka's house and property, and questioning some of the Kankas' neighbors, Seitz spoke with defendant. Defendant told the officer that he had seen Megan riding her bicycle at 2:30 p.m. that day. When asked if he had seen Megan at any other time (because his statement conflicted with what other neighbors had said and what he had said earlier), defendant stated that he had seen Megan riding her bicycle in front of her house between 5:30 p.m. and 6:00 p.m. Defendant also told Seitz that his roommates, Cifelli and Jenin, were out shopping between 5:30 p.m. and 7:00 p.m. and would not have seen Megan.

Officer Nelson then testified that at approximately 10 p.m., he and three other officers approached 27 Barbara Lee Lane to obtain consent to search the house. Mr. Cifelli, the owner, agreed to let them search the house, yard and boat for Megan. They did not find her. During the course of the search, Officer Nelson noticed heavy brown blankets being washed in the washing machine. Although he found it to be unusual, none of the residents at 27 Barbara Lee Lane was a suspect at the time of this first search.

At approximately 12:30 a.m., Detectives O'Dwyer and Kieffer and Detective Sergeant Stanley obtained a signed consent from owner Cifelli to search the home again. Jenin, Cifelli and defendant also were questioned individually at that time.

During the search, O'Dwyer found "what appeared to be four pairs of women's underwear," one having a teddy-bear pattern, under the bed in Cifelli's room. The officer read Cifelli his Miranda rights and Cifelli waived his rights. Cifelli explained that the underwear belonged to an ex-girlfriend. O'Dwyer soon realized that the underwear was adult-sized and did not believe it was connected to Megan's disappearance. Cifelli gave officers an alibi and receipts proving he and Jenin were not at home at the time of Megan's disappearance.

The officers then interviewed Brian Jenin. They did not administer Miranda rights since, according to O'Dwyer, the search of Jenin's room disclosed nothing suspicious and the police were just trying to obtain information. Jenin's account was consistent with Cifelli's.

After questioning Cifelli and Jenin, the officers then called defendant into the room. They did not read defendant his Miranda rights because nothing suspicious had been found in his room and the police were just seeking information. Defendant related that he had gone out that day with Jenin and Cifelli to purchase a boat, and then washed it in front of his home. He spoke to Megan, who he knew as a "neighborhood child," and her friend Courtney between 5:00-5:30 that day while he was washing the boat. Jenin and Cifelli were out running errands at the time.

O'Dwyer testified that defendant was shaking and perspiring heavily throughout the course of the interview. When Kieffer sat down next to defendant, defendant crossed his arms and legs and turned away. Based on defendant's account, his nervousness, and his assertion that he was alone at the time of Megan's disappearance, the officers thought defendant should be re-interviewed at headquarters. Defendant agreed to accompany the officers, but wanted to drive himself. The officers followed behind in their vehicle. The officers felt no need to speak with Cifelli or Jenin again.

When they arrived at the station at approximately 2:50 a.m., Defendant was read his Miranda warnings. He signed a form stating that he understood and waived his rights. He never asked for a lawyer or said that he did not want to talk. He said he would help in any way that he could.

Defendant gave police a written statement documenting his whereabouts on the 29th. The statement conflicted with previous accounts defendant had given to the officers. In particular, defendant wrote that he had seen the victim a second time on the 29th, at 6:30 p.m. He had previously told Kieffer that he had seen her only once, earlier in the afternoon by his boat.

At approximately 4:00 a.m., defendant signed a form consenting to a search of his vehicle. Detective O'Dwyer, while looking for latent fingerprints, found a brown toy chest and a piece of black felt in the back of defendant's pickup truck. Defendant, who was present during the search, volunteered that he recently had cut his hand on the curtain rod that hung in front of the glass separating the passenger and cap portions of the truck. Defendant had an injury on the palm of his hand, but O'Dwyer found no blood or skin on the curtain rod. At 4:00 a.m., after the search, defendant left headquarters, promising to return the next day for more questioning.

Detective Martin Ingebrandt testified that he was called into headquarters at approximately 5:30 a.m. to help with the Kanka investigation. At approximately 7:00 a.m., Ingebrandt was sent to defendant's house to obtain consent to search the boat in the yard. Cifelli signed the consent and the officers began to search the boat for prints.

Detective Ingebrandt testified that when they walked over to the boat, there was no garbage on the curb at 27 Barbara Lee Drive. During the course of the search, Ingebrandt noticed someone, whom he later learned was defendant, walking a puppy down Barbara Lee Lane. A few minutes later, Ingebrandt noticed three garbage cans between the curb and the side of the boat that had not been there before. The officers obtained Cifelli's consent to search the garbage. At about 9:15 a.m., the officers returned to headquarters with the garbage. Nothing was confiscated from the boat.

Upon searching the garbage, the officers found a rope with some knots tied in it and a substance that appeared to be dried blood on it, the waistband of a small pair of pants appearing to be for a child, and a piece of material that matched the waistband. Unsuspicious items were found as well.

At approximately 10:00 a.m., Ingebrandt and Butera brought the articles of clothing to the Kankas for identification. Mrs. Kanka confirmed that the articles of clothing were Megan's. The Kankas then went to police headquarters to make a statement.

At 12:17 p.m. on the 30th, Pukenas and McDonough interviewed defendant. They read defendant his Miranda rights. Defendant signed a form stipulating that he understood his rights and waived them. After questioning defendant, Pukenas asked him to write a statement detailing his activities on the 29th, which defendant did while Pukenas and McDonough waited outside. Pukenas noticed differences between defendant's first and second written statements. Pukenas also noted that defendant kept focusing on the 6:00 to 6:30 p.m. time frame, mentioning it three or four times, even though the detectives had not asked him to highlight that period. After detectives reviewed defendant's statement with him, questioning continued. At that point, Pukenas showed defendant either the clothes or the photographs of the clothes. Defendant identified them as rags from his job and continued to deny any involvement in Megan's disappearance.

Pukenas and McDonough questioned defendant until approximately 6:35 p.m., allowing him two twenty to twenty-five minute breaks, though he remained in the conference room throughout. Towards the end of this period of questioning, at approximately 6:20 p.m., Pukenas' notes indicate that defendant asked to speak to his roommate, Jenin. Jenin was brought into the interview room, accompanied by Kieffer. Jenin spoke first saying to defendant, "They got you, they got you, they got you. You're going to need a friend on the outside, I'll be that friend." In response, defendant put his head down and then looked up and said, "She's in Mercer County Park." He then proceeded to tell the detectives that Megan was dead and that he had put a bag over her head. He agreed to show the police where she was. Pukenas denied that Jenin was told to ask defendant where the body was or what to say.

Police drove defendant to the park. Once inside, defendant brought the detectives directly to the body. The victim was lying in tall weeds concealed from view, with a plastic bag over her head. On the car ride back to headquarters, defendant, at the officers' request, recounted what happened.

Defendant made a written statement at Pukenas's request back at headquarters. It was approximately 7:30 p.m. In this statement, which was read to the jury, defendant relayed the following: on the 29th, the victim wanting to see defendant's puppy came over to defendant's house while his roommates were out; defendant brought Megan into the bedroom and started to touch her; the victim screamed and tried to get away; afraid that she would tell her mother, defendant grabbed the victim, ripping her shorts; defendant then grabbed a belt and put it around the victim's neck, pulling her back in the room; she fell and started to bleed; to stop the bleeding and to prevent the blood from getting on the carpet, defendant placed a plastic bag over her head; he used a second plastic bag to tie off the first; at this point, Cifelli and Jenin arrived home; thinking the victim was dead, defendant put her in a large toy box, which he had converted to a tool box, and carried her downstairs; as defendant put the box in the van, he thought he heard the victim cough.

Defendant wrote that he was going to dump the body near the power lines, but saw a police car there. Instead, he took the victim to Mercer County Park. As defendant was pulling her out of the box, he placed his fingers in her vagina, "played with her a little" and then dumped her in the weeds. He left the park and went to WaWa, where he bought cigarettes and a paper. He then returned home. Upon arriving home, defendant ripped up the victim's shorts that were in his bedroom and went outside. Mrs. Kanka asked defendant if he had seen the victim. Defendant said that he had seen her by the neighbor's driveway. Defendant then helped look for the victim by handing out fliers.

After writing out his statement, defendant's clothes were removed and he was fingerprinted. At 4:00 a.m., while taking consensual nail clipping from defendant, Officer Wilkins noticed what appeared to be a bite mark on defendant's hand. He took photographs of the mark and measured it with defendant's consent. Dr. Haskell Askin, a forensic odontologist, performed a bite- mark analysis of defendant's hand. He determined that the victim had bitten defendant, leaving the mark.

Dr. Raafat Ahmad, the Mercer County Medical Examiner, performed an autopsy on the victim's body. Dr. Ahmat testified that he found, among other things, petechial hemorrhages in both eyes, a telltale sign of death by strangulation. He found a ligature mark on the neck that was consistent with the leather belt found in defendant's room. The victim had bruising and contusions under her chin, consistent with an object or hand placed on the neck. The victim received a blunt trauma to the eye, caused either by a fist or by striking the head against an object. There was also bruising on the back, arms and legs, indicating the victim had been grabbed and held on her back with someone on top of her. Some of the abrasions could have been caused by rubbing against the carpet.

Internally, the victim had bruises on her colon and right kidney, probably caused by separate blows and/or someone's weight on top of her. There was a tear in the hymenal margin and penetration of the vagina caused by a finger or penis. Additionally, there were two tears in the mucosa covering the anus, indicating penetration by a penis. Severe hemorrhaging was caused by three separate blows to the head with a blunt object.

Dr. Ahmed concluded that the cause of death was mechanical strangulation with the leather belt, constricting oxygen to the brain, causing brain death within three to four minutes. The plastic bags hastened, but were not the cause of death.

Upon reviewing the autopsy, Detective Stanley reread Miranda rights to defendant. Again, defendant waived his rights. Stanley told defendant that based on the autopsy reports, he knew defendant was not telling them everything. Stanley said he knew about the sexual assault and blunt trauma to the head. Defendant then admitted to sexually assaulting Megan.

Officer Stanley administered Miranda rights again and obtained another waiver. Stanley then took defendant's formal statement, which was read to the jury at trial. The substance of that statement, as it differed from his first formal statement, is as follows: when Megan tried to leave defendant's room, a struggle ensued; as she fell to the floor, the victim hit her head on the door frame and her face on the dresser; defendant then slapped her face, causing her mouth to bleed; he pulled her pants down and tried, unsuccessfully, to penetrate her vaginally with his penis; he penetrated her with his finger instead. Defendant denied trying to penetrate the victim anally, but "may have slipped" while trying to penetrate her vaginally. During this time, the victim was unconscious but breathing. She was still breathing after he put the bags over her head. Stanley added that after signing this last statement, defendant, in a "flat and unemotional" tone, said he felt he had been "slipping for a while," meaning "getting those feelings for little girls . . . for a couple of weeks or a couple of months."

Forensic analysis of the evidence found the following: the tool box in defendant's truck contained an Allen wrench set similar to the wrenches found near Megan's body; an investigator from the FBI DNA Analysis Unit who performed DQ Alpha polymarker testing on rug cuttings from defendant's room concluded that Megan's markers were consistent with two of the rug samples; blood stains found on defendant's belt were consistent with Megan's DNA markers; over 99% of the Caucasian population could be excluded from the possibility of matching Megan's DNA markers; there was insufficient seminal fluid to perform a DNA test on the anal swabs.

A forensic chemist and a forensic scientist analyzed the trace evidence. They concluded that the shorts found in the garbage contained fibers chemically and physically consistent with fibers found on defendant's bedroom rug, the sleeping bag, and in the lint trap of defendant's dryer. Fibers found on the sweat pants matched those taken from Megan's blouse. Over thirty hairs found near defendant's bed, on a dishcloth, on the carpet, and in the black felt cloth had the same physical and microscopic qualities as Megan's. There were four head hairs on Megan's blouse that were consistent with defendant's hair and inconsistent with Cifelli's and Jenin's. A pubic hair on Megan's blouse compared favorably to defendant's. The forensic chemist examining fluid evidence found blood on defendant's bed sheets, the black belt, swabs taken from defendant's bedroom door, oral and anal swabs taken from the victim, and on her blouse and earring.

Defendant did not testify or present witnesses in the guilt phase. His defense was presented through cross-examination and by argument. The jury found defendant guilty on all counts.

B. Penalty Phase

1. Defendant's Case

In the penalty phase, defendant presented two witnesses who testified to mitigating factors: Carol Krych, a forensic social worker; and Dr. John Podboy, a clinical and forensic psychologist. Defendant also exercised his right of allocution.

The first witness, Ms. Krych, holds a master's degree in counseling, an international certification in drug and alcohol counseling, and has worked as a forensic social worker for nineteen years. Her testimony was based on over two years of investigation into defendant's social history, from birth to the age of seventeen. According to Krych, defendant clearly had a dysfunctional family life. His mother Doris was a promiscuous alcoholic who had a total of ten children by seven men. Several of her children had been placed for adoption or foster care. Doris was not certain when all of her children were born or who their fathers were. An evaluation of Doris by the United Family and Children's Society prepared in 1955 described her as "quite limited mentally and emotionally," "promiscuous," "amoral," and from a "deprived background."

In 1960, while living with one William Neill, an excessive drinker who had a criminal record and "abused" Doris, she began a relationship with a man named Skip. Jesse was born to Skip and Doris on April 15, 1961. Although Doris was pregnant with Jesse, she accompanied Skip around the country, as he was "basically running from the law." She drank throughout the pregnancy, although she did "cut down." Doris became pregnant with Paul, Jesse's brother, shortly after Jesse's birth.

Doris told Krych that she and Skip lived with her parents on their return to New Jersey. Thereafter they lived in a series of homes, one of which was a "shack." They obtained clothing from "rummage sales," the electricity was frequently off, and the children were cold, dirty and hungry. Although Skip was a painter, Doris said he was "basically . . . a con man" who did not work full-time. The evidence also established that he was a drinker with a criminal record and a tendency toward violence.

Krych's testimony and report drew heavily on school records. Although acknowledging that "conflicting materials" exist, Krych testified that defendant had been diagnosed with emotional problems and was classified as "educably retarded" by a child study team. He had multiple social, emotional and academic problems. He was never given follow-up counseling or psychological evaluation in the school system. Krych further asserted that Jesse lacked adequate medical care as a child, based on the fact that Doris had no memory of a family physician and included no medical records in the documents she gave to Krych.

Krych conducted extensive interviews with Paul as well. Two of those interviews were taped with Paul's consent and shown to the jury. Paul acknowledged that he had a history of "severe" alcohol and drug addiction, which he attributed to "having such terrible memories." Krych testified that Paul and "other sources" told her that Skip had sexually molested Jesse and Paul several times each week for many years. Paul stated that Skip had drowned a pet dog to scare the boys, forced them to eat a pet rabbit, and cut the head off a cat. Paul also related that when Jesse was eight or nine years of age, the two saw Skip rape a 7-year-old girl in his truck. Skip threatened them and ordered them not to tell anyone.

Krych acknowledged that Paul was "now" saying that Jesse "should be put to death." She noted that this apparent change of heart occurred after Paul discovered that Skip was alive. Paul had told a friend of Skip's, whom Krych had contacted, that "the person that had done this to him could come after and get him."Dr. Podboy, relying on Krych's report to form the basis of his testimony (he never evaluated defendant), testified that defendant suffers from pedophilia, along with disorders of reading, math, and written expression. Podboy found "probable generalized anxiety, perhaps including post-traumatic stress disorder" and "schizoid personality disorder in defendant." The expert also noted borderline retardation and fetal alcohol effect. He concluded that support from defendant's family was inadequate and that his overall functioning level was 50/100. Podboy testified that if a child's mother drinks and neglects her child between the ages of birth and 5-7, the child will experience difficulties with trust, sex roles and self-control. If a child 5-7 years old is sexually abused, the child's moral development can be substantially impaired.

Dr. Podboy testified that at the time of the crime, defendant was under "extreme emotional disturbance" and was "unraveling psychologically." Defendant's "capacity to appreciate the wrongfulness of his conduct" was "very much impaired," as was his ability to "conform his conduct . . . to the requirements of the law." Defendant had strong urges to be with underage females. His reckless conduct resulted from his desire to satisfy those urges.

Podboy concluded that although defendant demonstrated an ability to engage in knowing and purposeful behavior, his level of functioning was "pretty primitive." Defendant's powerful compulsion resulted from being abused. Low IQ and genetic defects also may play a role. The doctor went on to state that the results of a "SPECT" evaluation, measuring blood flow in regions of the brain, showed a possible serious problem with defendant's brain that could reflect a "vascular insult," "congenital abnormality," or a "post-traumatic insult."

Finally, Podboy testified that defendant's sexual intent towards the victim was separate from her death. Her death was caused by a reflexive response to the panic defendant felt when the victim attempted to flee.

2. The State's Case

The State relied on evidence presented in the guilt phase to support the aggravating factors. To rebut defendant's mitigating evidence, the State cross-examined defendant's witnesses and presented four rebuttal witnesses of its own -- Dr. Sadoff, a forensic psychologist, and three law enforcement officers. Mr. Kanka also read a victim impact statement to the jury.

On cross-examination, Krych acknowledged that no one outside the family ever had corroborated the stories of sexual and physical abuse told to her by family members. Krych also conceded that there was no evidence in the record supporting the contention that defendant set fires, was cruel to animals, behaved inappropriately or exposed himself to girls. She further acknowledged that she had not incorporated academic progress reports in her findings, including a 1969 school report that concluded that defendant was making exceptional progress, and that there were records showing defendant had a family doctor, a family dentist, and had received all his vaccinations.

Dr. Sadoff testified that there was no support for the mitigating factors of extreme emotional disturbance or mental disease or defect. Defendant's statements about his conduct during the murder revealed that he acted in a logical manner to prevent detection and was in control of the situation. The doctor added that defendant's IQ was borderline, but not so low as to render him unable to function or appreciate the nature of his conduct.

Detectives Raymond and Cowen of the Mercer County Prosecutor's Office stated that Krych's claims that defendant's mother was drunk all the time were disputed by people who knew the family during defendant's childhood. Similarly, witnesses interviewed by the detective disputed claims that defendant's house and clothes were disheveled.

Raymond also testified about the eight meetings he had with Paul Timmendequas. Raymond reported that during their first meeting, Paul said that he thought defendant should die and wanted to "pull the switch." He also told Raymond that everything he said to the defense had been "twisted around." In one meeting, Paul told Raymond that he and defendant had been physically abused by Skip and that Doris had broken defendant's arm when defendant was seventeen. Paul later denied the physical abuse and said that he had been drunk when he made the video tapes with Krych.

The jury unanimously found that the State had proven both aggravating factors beyond a reasonable doubt. With respect to the mitigating factors, four jurors found that defendant was under the influence of extreme emotional disturbance, two jurors found that he suffered from mental disease or defect, and varying numbers of jurors found ten of the twenty-one catch-all mitigating factors. *fn1 They were as follows: defendant (1) did not plan in advance to kill or seriously injure the victim (twelve jurors); (2) felt remorse (six jurors); (3) was subjected to years of sexual and physical abuse by his father, including but not limited to fondling, forced oral sex, anal penetration, and beatings by his father's hand or a strap (three jurors); (4) was exposed to domestic violence between his mother and several of her paramours (twelve jurors); (5) was born to a father who had a history of incarceration, drank excessively and totally disregarded the needs of his family and even their lives (eleven jurors); (6) was born to a promiscuous mother who had ten children by seven different men and gave up or had to relinquish seven of these children to the State (twelve jurors); (7) was raised in an atmosphere that did not provide him with stability, having moved twenty-one times by the time he was seventeen years old (twelve jurors); (8) was born to a mother who was emotionally unfit and unable to meet his physical and emotional needs and caused him to suffer from fetal alcohol effect due to her drinking throughout her pregnancy (four jurors); (9) suffered traumatic loss when his stepfather, the only father figure who did not abuse him, died (seven jurors).

The jury also found its own mitigating catch-all factor, 25(a), on which they unanimously agreed: "Jesse Timmendequas' childhood and adolescence were characterized by exposure to domestic violence, criminal activity, substance abuse, instability of the home, emotional and physical neglect and possible physical and sexual abuse. His parents did not serve as role models of normal behavior and treated him poorly. Also, the family was poor and received public assistance."

The jury found beyond a reasonable doubt that the aggravating factors, both individually and collectively, outweighed the mitigating factors, thereby fixing defendant's sentence as death. This appeal followed.

III.

Pretrial Issues

A. Change of Venue Motion

Defendant moved for a change of venue because of the extensive publicity surrounding this case. In the motion he cited 437 separate articles *fn2 from the Trentonian and the Trenton Times, Mercer County's two leading newspapers. He claimed those articles prevented him from receiving a fair trial in Mercer County.

The pretrial publicity in this case was constant, prolonged and horrendous. The Trentonian, a Mercer County newspaper, referred to defendant as "scum," a "predator," a "piece of trash," an "animal," a "pervert," a "dirtball," a "sicko," a "monster," and a "bottom-feeder." The articles often assumed defendant's guilt and disclosed defendant's prior sex offense convictions, including the fact that he had refused psychological treatment while serving a previous sentence. The Trentonian frequently stressed that defendant had confessed to the crime, and many articles called for his execution. The case also received nationwide publicity as a result of the activity associated with Megan's Law.

A criminal defendant is guaranteed the right to trial by a fair and impartial jury. State v. Harris, 156 N.J. 122, 142 (1998). U.S. Const. amend. XIV; N.J. Const. art. I, ¶ 10. The concept of impartiality requires that "the jury's verdict be based on evidence received in open court, not from outside sources." Harris, supra, 156 N.J. at 467-68. A trial court, therefore, must take "significant precautions to minimize adverse pretrial and mid trial publicity that is capable of affecting juror perception of the case." State v. Feaster, 156 N.J. 1, 50 (1998).

In determining whether to grant the motion for change of venue, the trial court analyzed the publicity in accordance with five factors laid out in State v. Koedatich, 112 N.J. 225, 271 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989) (Koedatich I). The court held that first, the extent of the coverage was "significant." Though not comparable to the "`stream of invective' and `vengeance seeking crusade' found by the trial court in State vs. Harris . . .," the court nevertheless found that "the totality of the coverage and its nature" had "been constant and prolonged . . . ." Even State officials had commented on the case in various media sources. The court further observed that this case is different from Harris, supra, in that "the parents of Megan Kanka have worked with singular purpose towards the goal of generating passage of legislation that would require registration of sex offenders, together with community notification." Second, the court noted that the nature and gravity of the offense cannot be more serious than in a death penalty case. Third, the trial court recognized that the size of the Mercer County community and its potential exposure to media coverage regarding the case were serious concerns. Fourth, the court considered the respective standing of the deceased and the accused. Megan Kanka had become a national figure after her death. As a result, defendant "has a high profile," especially in Mercer County. Finally, with respect to community hostility, the court observed that although there had not yet been crowds or major protests in the courtroom, "that does not mean that the community . . . and surrounding municipalities do not feel and harbor a silent rage against the defendant."

Based on its findings, the trial court properly recognized that the media coverage created a realistic likelihood of prejudice to defendant. See Harris, supra, 156 N.J. 142-46; State v. Biegenwald, 106 N.J. 13, 32-35 (1987) (Biegenwald II). Accordingly, the trial court ordered a change of venue to Camden County pursuant to Rule 3:14-2.

B. Reconsideration of Change of Venue Order

At the Conclusion of the change of venue motion, the State requested a hearing on the location chosen by the court. It had not yet presented evidence on demographics and wanted the opportunity to provide information about other counties as potential locations. The court signed the order changing venue to Camden, but permitted the State to submit a motion for reconsideration of the place of venue.

On November 21, 1995, the State filed for reconsideration of the Order changing venue to Camden. The State requested that the court empanel a foreign jury from Camden in lieu of changing trial venue. In the alternative, the State asked the court to move the trial to a county more convenient to the victim's family (suggesting Burlington, Middlesex or Hunterdon Counties).

The State argued that the court should reconsider its holding in light of the constitutional rights of the victim's parents. The Victim's Rights Amendment, the State argued, required the court to take into account the "extreme hardship" that would result if the Kankas had to travel to Camden County daily to watch defendant's trial. The State submitted affidavits from Mr. and Mrs. Kanka stressing the emotional and financial burdens that would be placed on the couple if the trial were moved to Camden. The State originally had not argued that point in response to defendant's motion.

The court granted the State's motion and ordered that a foreign jury be empaneled in Mercer County from Camden County. Although still concluding that "[t]here is a realistic likelihood of prejudice from pretrial publicity in Mercer County[,]" the court recognized the importance of protecting the victims' rights. Changing venue would violate the Victim's Rights Amendment of the N.J. Const., art. I, ¶ 22, as it would impose great hardship on the victim's parents. The court further observed that the neighborhood in which the Camden County courthouse sits is dangerous, thereby taking a greater toll on the victim's family and other members of the public who wished to attend the trial. The savings in time and costs also would be significant. Finally, the court stressed the competency of the staff and security at the Mercer County courthouse, noting that the administrators' experience in handling the Harris trial would ensure that the proceedings would be adequately safeguarded. The court did "not see any diminishment of the defendant's rights" resulting from a reversal of the decision to change venue.

Defendant now asserts that the trial court's decision to reconsider the change of venue motion was incorrect because: (1) interlocutory motions of reconsideration in criminal matters are not allowed; and (2) the Victim's Rights Amendment does not apply to the question of whether there should be a change of venue or an empanelment of a foreign jury. Defendant claims those errors violated due process and his constitutional right to a fair trial.

1. Interlocutory Motion to Reconsider

Rule 1:7-4 provides that "[u]pon motion made not later than 10 days after service of the final order or judgment . . ., the court may grant a rehearing. . . ." *fn3 However, Pressler, Current N.J. Court Rules, comment 3 on Rule 1:7-4[1] (1995) states:

"It is also important to note that the 10-day provision of both this rule and R. 4:49-2 apply only to final orders and judgments. Reconsideration of interlocutory orders, up to the time of final judgment is entered, is a matter within the sound discretion of the trial court to be exercised in the interests of Justice. (emphasis added)." *fn4

Defendant relies on dicta in State v. Fitzsimmons, 286 N.J. Super. 141, 147 (App. Div. 1995), rev'd o.g., 143 N.J. 482 (1996) to argue that reconsideration motions are inapplicable to criminal matters. In that case, the Appellate Division stated that "[t]here is no corollary rule [governing motions for reconsideration] applicable to practice in the criminal courts." Ibid. We disagree. This Court has never questioned the appropriateness of interlocutory motions to reconsider in criminal matters. A motion to reconsider an interlocutory order, such as a change of venue, may be filed in the court's discretion up to the time the final judgment is entered.

2. Victim's Right Amendment

Defendant also contends that the trial court improperly considered the impact changing venue to Camden County would have on the victim's family, both financially and emotionally. The Victim's Rights Amendment was approved by New Jersey voters in 1991. That Amendment provides that:

"A victim of a crime shall be treated with fairness, compassion and respect by the criminal Justice system. A victim of a crime shall not be denied the right to be present at public judicial proceedings except when . . . the victim is properly sequestered in accordance with the law . . . . A victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature." [N.J. Const., art. I, ¶ 22.]

Defendant urges the Court to hold that the amendment merely allows victims to attend a trial and no more.

Defendant views the Legislature's commitment to victim's rights too narrowly. Over the past decade, both nationwide and in New Jersey, a significant amount of legislation has been passed implementing increased levels of protection for victims of crime. State of New Jersey in the Interest of J.G., N.S. and J.T., 151 N.J. 565, 581-82 (1997); State v. Muhammad, 145 N.J. 23, 33-34 (1996). Specifically, in New Jersey, the Legislature enacted the "Crime Victim's Bill of Rights," N.J.S.A. 52:4B-34 to -38. Muhammad, supra, 145 N.J. at 33. That amendment marked the culmination of the Legislature's efforts to increase the participation of crime victims in the criminal Justice system. Ibid.

The purpose of the Victim's Rights Amendment was to "enhance and protect the necessary role of crime victims and witnesses in the criminal Justice process. In furtherance of [that goal], the improved treatment of these persons should be assured through the establishment of specific rights." *fn5 N.J.S.A. 52:4B-35 (1985). One of the enumerated rights guaranteed for victims is "[t]o have inconveniences associated with participation in the criminal Justice process minimized to the fullest extent possible." N.J.S.A. 52:4B-36(d).

Giving those words their ordinary meaning, we find that the Crime Victim's Bill of Rights was aimed at preventing the types of hardship argued by the State on behalf of the victim's family. The hardships documented in the Kankas' affidavits are significant. The trip to Camden would add two hours a day to the already substantial period of time spent away from their two young surviving children. The emotional toll of the trial and the financial expense of traveling would greatly add to that burden. Considerations of "fairness" and "respect," supra, justify the trial court's decision to balance the very real harms the Kanskas would suffer if venue were changed to Camden.

We recognize that the trial court also must give due respect to the Constitutional rights of defendant. In reversing the change of venue order, the trial court stated that "[t]he court does not see any diminishment of the defendant's rights . . ." resulting from the decision to empanel a foreign jury. The court explicitly stated that it was not favoring the rights of the victims over those of defendant. Rather, it was simply taking their concerns into consideration, as it had not done previously. Taking the concerns of the victim's family into account does not constitute error, provided that the constitutional rights of the defendant are not denied or infringed on by that decision. As we find no infringement upon defendant's constitutional rights, we reject this argument.

C. Option of Empaneling Foreign Jury

In State v. Harris, supra, 156 N.J. at 146, we held that it was not reversible error to empanel a foreign jury rather than to change venue. Similar to here, Harris involved a capital murder case in which pretrial publicity created a realistic likelihood of prejudice to the defendant. We refused to reverse because the court had "used one of the trial management techniques specifically approved to ensure that a defendant's right to an impartial jury is not compromised." Ibid. We observed that the empanelment of foreign jurors was the first trial management technique suggested in State v. Williams, 93 N.J. 39, 67 (1983) (Williams I). Other "[a]vailable options include a change of venue, selection of a foreign jury, and augmentation of the jury pool." Feaster, supra, 156 N.J. at 50. Nonetheless, we noted that "[i]n 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." Harris, supra, 156 N.J. at 147.

This trial was held before we decided Harris. Hence, when defendant was tried, "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." Ibid. We adhere to our observation that the necessity of requiring a change of venue because of a "barrage of inflammatory reporting" imposes an added expense and inconvenience on the State and the victims of the crime. Id. at 147-48. In capital cases, we caution newspapers to refrain from the inflammatory reporting demonstrated by the Trentonian and the Trenton Times in this case and in Harris. However, we decline to reverse on this ground given the state of the law at the time of defendant's trial.

1. Empaneling a Jury from Hunterdon County

After having decided to empanel a jury from Camden County, the trial court agreed to hear subsequent argument from the State in favor of empaneling a jury from Hunterdon County. On January 29, 1996, the court granted the State's motion to empanel a jury from Hunterdon. Defendant argues that Camden County was the proper jury pool.

Rule 3:14-2 authorizes a change of venue or trial by a foreign jury "if the court finds that a fair and impartial jury cannot otherwise be had." However, that Rule does not offer any guidelines in selecting the county for venue or the source of a foreign jury. The Appellate Division, in State v. Harris, 282 N.J. Super. 409, 421 (App. Div. 1995), appeal after remand, 156 N.J. 122 (1997), relying on the American Bar Association guidelines for venue and jury selection in choosing Hunterdon County, applied the following factors:

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

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

(3) The hardships to prospective jurors in traveling from their home county to the site of the trial and the burden imposed upon the court in transporting the jurors; *fn6

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

(5) Any other factor which may be required by the interests of Justice." [Id. at 421, (quoting Criminal Justice Standards: Trial by Jury, ABA Crim. Just. Sec. Standard 15-1.4 (3d. ed. 1993)).]

We find that the trial court did not abuse its discretion in empaneling a jury from Hunterdon County. The trial court applied the Harris factors in determining that Hunterdon County was the appropriate source for the foreign jury. The court first considered the nature and extent of pretrial publicity in the proposed counties. The Trentonian and, to a lesser extent, the Trenton Times, were the main sources of objectionable publicity about defendant. The circulation of the Trentonian and the Trenton Times in Mercer, Hunterdon, and Camden Counties was as follows:

Trentonian Circulation

1991

Mercer Hunterdon Camden

Circulation 51,810 1,342 110

Times Circulation

1992

Mercer Hunterdon Camden

Circulation 60,215 1,796 under 25

In other cases we have upheld the empanelment of a jury from a county with a far greater circulation disparity than that present here. In Harris, the combined newspaper circulation figures were as follows:

approximately 20,000 in Burlington County; 3,000 in Hunterdon County; and 250 in Camden County. We approved the empanelment of a Burlington County jury because "the net effect was not significantly different than if the jury had been from Camden County." Id. at 150. Similarly, in Feaster, supra, 156 N.J. at 51, we allowed the empanelment of a Salem County jury even though it had a higher level of publicity than the proposed county. (Observing Salem County "was by no means inundated with publicity about the murders.")

In this case, the combined circulation rates of the two papers for Mercer County were 34.3 percent; for Hunterdon County, 2.8 percent; and for Camden County, .03 percent. *fn7 Given the assumptions implicit in determining the extent of pretrial publicity, we disagree with the Dissent's assertion that this factor weighs heavily in defendant's favor. Post at ___ (slip op. at 19) (Handler, J., Dissenting). The circulation rates for Hunterdon County were significantly lower than those of Mercer County. Although Camden County had the lowest circulation rates, the net effect of a two percent disparity indicates that Hunterdon County also was clearly outside the circulation range of the Trenton newspapers. Harris, supra, 156 N.J. at 148-50 (noting defendant's argument that most effective method of minimizing potential prejudice is to pick jury from county where Trenton newspapers are not ubiquitous).

With regard to Factor 2, the court properly determined that empaneling a Hunterdon County jury would disrupt the judicial system in Hunterdon County far less than it would disrupt the Camden County judicial system. The trial court contacted Hunterdon County court officials and was assured that jury selection would not disrupt their caseload. Hunterdon County had no capital murder cases pending. By contrast, Camden County had five pending capital murder cases. Moreover, Camden County had 2,057 criminal cases pending indictment as of September 1995, while Hunterdon County had 147. Camden had 4,551 post-indictment cases pending, and Hunterdon County had 180. Clearly, the relative hardships imposed on the prospective courts favored Hunterdon County.

Factor 3, the relative burdens on the parties and other interested parties, also favored Hunterdon County. Traveling between Camden and Trenton takes about one hour. By contrast, a trip between Flemington, in Hunterdon County, and Trenton takes about 35 minutes. Obviously, those travel times would affect how long the trial could last each day. Moreover, the area in Camden where the jurors would be dropped off was relatively desolate. A local law enforcement officer described it as a dangerous area after hours. Given those circumstances, the court properly determined that the hardship would be less onerous for Hunterdon County jurors.

Concerning factor 4, defendant argues that the demographic characteristics of Camden County are more similar to those of Mercer County. As of 1990, Mercer County had a population of 325,824. Hunterdon's population was 107,776 and Camden's was 502,824. 1994-1995 New Jersey Municipal Data Book (hereinafter, "Data Book"). Females comprised 52.6 percent of Mercer County, 50.1 percent of Hunterdon, and 51.9 percent of Camden counties. In 1989, the per capita income in Mercer was $18,936, $23,236 in Hunterdon and $15,733 in Camden. Data Book at 584-85, 578. The percentage of college graduates was 19.4 percent in Mercer, 23.4 percent in Hunterdon, and 13.4 percent in Camden. Ibid. Thus, in many demographic respects, Hunterdon County was more comparable to Mercer than Camden.

With regard to racial demographics, however, there was a disparity between the counties-- Mercer had an 18.89 percent african-american population, Hunterdon had a 2.06 percent african-american population, and Camden had a 16.2 percent african-american population. Defendant's jury pool in Hunterdon County contained only fifteen minority jurors in a pool of 715, substantially less than the african-american representation of 18.8 percent in Mercer County. Defendant argues that the court should have empaneled jurors from Camden County since it more closely reflected the racial composition of Mercer County. Failure to do so, he contends, violated his constitutional rights.

This Court has emphasized that a defendant has the "right to trial by an impartial jury drawn from a representative cross-section of the community." State v. Gilmore, 103 N.J. 508, 523 (1986). Under Rule 3:14-2, a court must consider racial demographics in deciding whether to change the venue of a criminal trial or to empanel a foreign jury. Harris, supra, 282 N.J. Super. at 417. However, racial demographics should not be the sole factor in that decision. In selecting the county from which to draw a foreign jury, the court "should . . . consider racial demographics together with all other pertinent factors[,]" especially the ABA factors. Id. at 419. "Racial demographics should be a particularly weighing factor in selecting the source of a foreign jury when the victim and the defendant belong to different races." Id. at 419-20. In this case, defendant and the victim were of the same race.

The Constitution does not guarantee a defendant a jury of any specific racial composition. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690, 703 (1975). What the Constitution guarantees is that every defendant will be tried by an impartial jury whose members are selected pursuant to "nondiscriminatory criteria." Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S. Ct. 1712, 1717, 90 L. Ed. 2d 69, 80 (1986) (challenging prosecutor's use of peremptory strikes in discriminatory manner); Holland v. Illinois, 493 U.S. 474, 480-81, 110 S. Ct. 803, 807, 107 L. Ed. 2d 905, 916-17, reh'g den. 494 U.S. 1050, 110 S. Ct. 1514 (1990).

To establish an Equal Protection violation, defendant must show purposeful discrimination in the decisionmaking process, Whitus v. Georgia, 385 U.S. 545, 550, 17 L. Ed. 2d 599, 603-04, 87 S. Ct. 643 (1967), that had a discriminatory effect on the outcome. Wayte v. United States, 470 U.S. 598, 608, 84 L. Ed. 2d 547, 556, 105 S. Ct. 1524 (1985). Purposeful discrimination implies that the decisionmaker selected a particular course of action "at least in part `because of,' not merely `in spite of' its adverse effects . . ." Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 2296, 60 L. Ed. 2d 870, 887-88 (1979). Thus, to prevail on this claim, defendant would have to show that the trial court's decision to empanel a jury from Hunterdon was motivated by a racially discriminatory purpose or because the court anticipated a racially discriminatory effect. Defendant has not proven such intent or effect.

The record is devoid of evidence remotely hinting that the trial court's decision to empanel a jury from Hunterdon County was animated by a discriminatory purpose. The court changed venue to ensure that the victim's family could exercise their State Constitutional right to be present at the trial. It also considered the fact that Hunterdon County is closer in proximity to Mercer County. That would mean more time for trial each day and less time that the jurors would have to travel. The court also took into account the juror's personal security. Jurors drawn from Camden would be dropped off in a dangerous area. Given the trial court's focus on relevant considerations, we find that the empanelment of a Hunterdon jury did not deprive defendant of equal protection.

Defendant also has failed to show he was deprived of rights under the Sixth Amendment. The Sixth Amendment, in pertinent part, provides that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ." U.S. Const. amend. VI. "The fair cross-section venire requirement is obviously not explicit in this text, but is derived from the traditional understanding of how an 'impartial jury' is assembled." Holland, supra, 493 U.S. at 480, 110 S. Ct. at 807, 107 L. Ed. 2d at 916. The Constitution does not require that petit juries actually mirror the community or reflect the various groups in the population. Holland, 493 U.S. at 483, 110 S. Ct. at 808, 107 L. Ed. 2d at 918; Taylor, supra, 419 U.S. at 538, 95 S. Ct. at 702, 42 L. Ed. 2d at 703. It does not guarantee that every discrete group will be represented proportionally in the jury venire or on the petit jury. Gilmore, supra, 103 N.J. at 525. The purpose of the cross-section requirement is to assure that defendant is tried before an impartial jury, which the Constitution demands. Holland, supra, 493 U.S. at 480, 110 S. Ct. at 807, 107 L. Ed. 2d at 916.

There is no evidence that the racial composition of the jury venire affected the jury's ability to be impartial. This case does not involve any racial issue but rather involves human concerns that touch the hearts and minds of all people, regardless of their race, religion or gender. Given the overwhelming evidence against defendant, it is highly doubtful that a jury from Camden would have reached a different verdict or sentence. Moreover, there is no assurance that the composition of the jury pool would have been radically different in Camden County. Because the case received basically the same amounts of press coverage in both Camden and Hunterdon Counties, and the victim and the defendant were of the same race, the trial court properly decided that the disparate racial composition of the counties was an important, but not the critical factor. Absent a showing of illegal discrimination, defendant had no constitutional right to a jury from Camden County simply because it might have increased his chances of having more minorities on his jury.

We find little merit in the Dissent's assertion that racial demographics outweigh the other demographic characteristics enumerated in Harris factor four. Post at ___ (slip op. at 23) (Handler, J., Dissenting); see Harris, supra, 1282 N.J. Super. at 421. "[W]here . . . race is the demographic characteristic at issue, the change of venue must be to a county having the same racial demographics. . . ." Pressler, Current N.J. Court Rules, comment on R.3:14-2 (1998) (citation omitted) (emphasis added). Unlike Harris, race is not the demographic characteristic at issue. In Harris, the defendant, a black man, was charged with the capital murder and rape of a young white girl. Id. at 411. In this case, defendant and the victim were of the same race.

The Dissent also asserts that the failure to empanel a jury from Camden constitutes a Sixth Amendment violation of such magnitude that it cannot be considered under the harmless error analysis. Post at ___ (slip op. at 27) (Handler, J., Dissenting). In State v. Bey, 112 N.J. 45, 94, 95 (1988) (Bey I), we held that in capital cases "we shall continue to determine the reversibility on the basis of a qualitative determination that considers, in the context of the entire case, whether the error was clearly capable of affecting either the verdict or the sentence." We noted, however, that the only exception where harmless error analysis would not apply involves "constitutional violations . . . [that] by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless." (quoting Satterwhite v. Texas, 488 U.S. 249, 100 S. Ct. 1792, 1792, 100 L. Ed. 2d 284 (1988). *fn8 We find that the alleged error of not having jurors empaneled from Camden was not clearly capable "by its nature of affecting either [defendant's] verdict or the sentence." As we stated in Harris, "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." Ibid. Once the initial taint is dispelled by the empanelling of a foreign jury, the source of that jury does not "by its very nature" render the trial process so fundamentally unfair as to require automatic reversal.

2. Effect on Jury

Moreover, defendant offers no evidence showing that any jury member actually was prejudiced by the trial being held in Mercer County. To the contrary, the evidence indicates that jury members remained untouched by press coverage throughout the trial.

Central to the court's decision to empanel a foreign jury was the fact that the Mercer County court administrators had substantial experience in the procedures necessary to protect jurors from trial-related publicity, gained while "host[ing]" the Harris trial. Jurors were picked up each morning and transported to Mercer County. Prior to trial, a special area on the fifth floor of the Mercer County Courthouse was designated for the jurors' use. The court repeatedly admonished jurors that it was vital for them to avoid any publicity about the case and to avoid discussing the matter with anyone.

When trial began on May 5, 1997, the trial court told the jurors to eat lunch inside the courthouse and to avoid any contact with outsiders. The court then asked if anyone had been subjected to accounts of the case. All jurors answered in the negative. The court told jurors to inform the court if any information about the case came to their attention during the trial. The court also told jury members to "have somebody screen [all media sources] for them." Every single day of the trial the court asked the jurors whether they had seen, heard, or read anything about the case. Every day, the answer was no.

Although defendant brought inflammatory news stories about the trial to the court's attention on an ongoing basis, there is no evidence that any of the jury members ever saw any inflammatory publicity. The court took great precautions to ensure that jurors remained isolated. For example, immediately before the penalty phase, the defense moved to terminate the trial and sentence defendant as a non-capital offender because of the Trentonian's unprecedented coverage of the verdict. To see whether any juror was adversely affected by publicity and whether the jurors could remain impartial during the penalty phase, the court individually questioned each juror. At the Conclusion of the individual voir dire, the court determined that all jurors remained fair and impartial. The court continued to question jurors about their exposure to publicity throughout the penalty phase. The jurors each time indicated they had not viewed or read any information about the case.

It would have been preferable if the trial court had not reversed its decision to change venue. Nevertheless, because of the precautions taken by the trial court, the fact that empanelment of a foreign jury was a valid management technique at the time of the trial to avoid the effect of prejudicial pretrial publicity, and the lack of evidence indicating actual jury taint resulted from the trial being held in Mercer County, defendant's constitutional rights were not infringed upon. The court's decision to reverse its prior determination to change venue and to empanel a foreign jury was not reversible error.

The record reveals that the trial court took more than adequate measures to "minimize the danger that prejudice would infiltrate the adjudicatory process." Harris, supra, 156 N.J. at 149. The trial court carefully weighed the Harris factors in selecting a jury from Hunterdon. There is no evidence of purposeful discrimination or actual bias. Empaneling a jury from Hunterdon County did not infringe on or deny defendant's constitutional rights. Accordingly, the trial court's decision to change its original venue order is not an abuse of the trial court's discretion and is not reversible error.

IV.

Jurors' Knowledge or Suspicion of Defendant's Prior Criminal History As A Sex Offender

The court and counsel voir dired three hundred and thirty-two prospective jurors. Of that pool, only five stated they were unaware of defendant's prior convictions. Over defendant's objections, the court qualified sixty-six jurors who announced they could decide the case solely on the evidence adduced at trial and the court's instructions. Only two jurors on the deliberating panel did not suspect that defendant had a prior record. Nine deliberating jurors suspected that defendant previously had been convicted of a sex offense. One juror knew about the convictions.

At the Conclusion of voir dire, defendant asked the court to dismiss the jurors and reconvene in Camden County. He argued that despite what jurors said, they really would not be able to set aside their knowledge of defendant's prior record. Defendant now claims he was denied a fair trial because the jurors who deliberated knew or suspected he had a prior record. We disagree.

A. The Law

This Court in Williams I, supra, held that the trial court's responsibility to preserve the integrity of the jury "under both the federal and state constitutions . . . is at its peak in cases involving the death penalty." 93 N.J. at 63; see also State v. Ramseur, 106 N.J. 123, 324 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). A "trial by an impartial jury . . . goes to the very essence of a fair trial." Williams I, supra, 93 N.J. at 60. However, a jury with knowledge about a case still can be impartial. The right to an impartial jury does not require that jurors be totally ignorant of the facts and issues involved in a given case. State v. Marshall, 123 N.J. 1, 77 (1991) cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), (Marshall I); Koedatich I, supra, 112 N.J. at 268; State v. Sugar, 84 N.J. 1, 23 (1980). Indeed, "it is difficult to imagine how an intelligent venireman could be completely uninformed of significant events in his community." United States v. Abello-Silva, 948 F.2d 1168, 1178 (10th Cir. 1991), cert. denied, 506 U.S. 1087, 113 S. Ct. 107, 121 L. Ed. 2d 65 (1992). It is sufficient "if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." State v. Williams, 113 N.J. 393, 429 (1988) (Williams II) (quoting Dobbert v. Florida, 432 U.S. 282, 302, 97 S. Ct. 2290, 2303, 53 L. Ed. 2d 344, 362 (1977)).

The Supreme Court has concluded that pretrial exposure to a defendant's prior conviction in the initial trial does not create an irrebuttable presumption of juror prejudice. Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 2891, 81 L. Ed. 2d 847 (1984). Properly motivated and carefully instructed jurors can, and have, exercised the discipline to disregard such information. Cf. United States v. McVeigh, 918 F. Supp. 1467, 1473 (W.D. Okla. 1996), aff'd., 153 F.3d 1168 (10th Cir., 1998). We therefore reject a per se rule that presumes a juror is incapable of remaining impartial if he knows or suspects that a defendant has prior convictions.

"[T]o distinguish potential jurors who are able to put their opinions or prior knowledge aside from those who are unable to serve in an impartial fashion, the trial court must conduct a probing voir dire of [the] jurors." Williams II, supra, 113 N.J. at 429. In determining whether a juror is predisposed to bias or prejudice, the trial court has a duty to evaluate the juror's entire response. Ramseur, supra, 106 N.J. at 257. Appellate courts should not disturb a trial court's determination of whether a jury can render an impartial verdict without careful consideration. Williams II, supra, 113 N.J. at 410. "[T]his Court is 'perhaps too far removed' from the realities of the voir dire to appreciate the nuances concealed by a 'bloodless record'; therefore, deference to the trial court is usually prudent." Williams II, supra, 113 N.J. at 411.

The question we must address is whether the trial court abused its discretion in determining that the seated jurors could disregard their suspicions and knowledge of defendant's prior convictions and render an impartial verdict. We reiterate that the Constitution does not require ignorant jurors, but only jurors who can lay aside any preconceived notions and Judge the defendant impartially. Mu'min v. Virginia, 500 U.S. 415, 430, 111 S. Ct. 1899, 1906, 114 L. Ed. 2d 493, 509 (1991); Marshall I, supra, 123 N.J. at 77, 86-87. A trial court's finding of impartiality must be given deference, and overturned only when manifestly erroneous. Id.,123 N.J. at 87.

B. Analysis

Knowledge of Megan's Law and defendant's role in its enactment was widespread. However, the record supports our finding that defendant was afforded an impartial jury that decided the case on the evidence presented in court, rather than on information gained from publicity.

The victim's parents led a nationwide crusade to secure passage of sex offender notification laws. Their efforts culminated on May 7, 1996, when the United States Senate passed a law requiring each state to implement a sex offender notification system. Newspapers all over the State, from the Trenton Times to the New York Times to USA Today, carried the story. Many of the articles mentioned that defendant was the inspiration for the law and some explicitly referred to defendant's two prior sex offense convictions.

Prior to the commencement of voir dire on January 13, 1997, defendant preemptively moved to strike for cause all jurors who had knowledge of Megan's Law. Defendant argued that anyone with this knowledge would, at some point, make the connection between defendant and Megan's Law. From there, he or she could deduce that defendant had a prior record as a sex offender. Probing questioning to determine the extent of a jurors' knowledge, defendant argued, would not eliminate the problem and would most likely exacerbate it.

The court rejected defendant's motion, finding that the only way to ensure juror impartiality and to avoid the prospect that jurors made the forbidden connection mid-trial was to question the jurors extensively on their knowledge of Megan's Law and defendant's prior history. *fn9 In his colloquy explaining the decision, the court stated,

"The gross prejudice that would be visited on the defendant, should this connection occur during the deliberation process, or at some other earlier point, and not disclosed, would certainly have the clear capacity to produce an unjust result. The potential for such a circumstance is real, and must be confronted in a forthright manner."

So, on the first day of jury selection, the trial court provided the pool of prospective jurors with an overview of the case, including the fact that it involved the murder and sexual assault of seven-year-old Megan Kankas.

The trial court then conducted an extensive and careful voir dire of each juror, taking approximately three months. Each juror was asked to fill out a lengthy questionnaire containing questions ranging from:

"their professional life; to the newspapers they read; to their knowledge and opinion of both the case and Megan's Law; to their thoughts on the criminal Justice system and the death penalty; to their ability to remain fair and impartial."

Specifically, Question #81 asked: "Do you believe or suspect that defendant . . . has a criminal record?" If the juror answered "yes," she had to detail the sources of the belief or suspicion and answer whether she could put that belief aside and follow the court's instructions. Each juror also had to provide detailed information on the sources from which she received her news and whether she regularly read either of the Trenton papers. Each juror also was asked whether she had formed an opinion concerning defendant's guilt or innocence.

Next, the court and the attorneys engaged in an extremely detailed oral questioning of each potential juror, specifically probing any questionnaire answer that signaled potential bias. Defense counsel was allowed to conduct additional questioning. Throughout the process, the court focused on the jurors' knowledge of defendant, the crime against Megan Kanka, Megan's Law, and their feelings and thoughts about each. On the basis of voir dire, the court qualified seventy-one jurors who either had no knowledge of defendant's prior convictions (five jurors) or who knew about the prior convictions but said they could be impartial (sixty-six jurors). The jury then was selected.

Throughout the trial, the court repeatedly expressed to the jury the importance of evaluating the case only on the evidence presented at trial. The court strenuously warned the jury to "insulate [themselves] from discussing the case, even with fellow jurors" and to insulate themselves "from radio, from television, sound bytes as well as from the newspaper and other media accounts . . . ." At various points, the court admonished the jury to remember that "[n]ewspaper accounts, media accounts are not evidence . . . They [are] often based upon second or third hand reports, on hearsay." Such evidence "simply is unreliable." The jury's "obligation is to decide this case on the basis of evidence that comes before you during the course of this trial . . . ."

In charging the jury, the court again explained the importance of using only the evidence presented at trial: "As you know, your obligation is to decide this case on the basis of evidence that comes before you during the course of this trial . . . ." "You're Judges, Judges of the facts. Your sole interest is to ascertain the truth from the evidence presented . . . ."

"You must decide the case on the basis of the evidence without bias, without prejudice, without sympathy. We all have our preDispositions, our prejudices, our sympathies, but they may not influence legal rulings in this courtroom, they may not influence the jury verdict. These things, bias, prejudice, sympathy, have no place in the jury deliberation room."

Again on May 30 the court reminded the jury to

"remain the kind of jury that you have been throughout these proceedings, following the instructions, paying close attention, deciding this case on the basis of the evidence that comes before you, not on the basis of opinion pieces, editorials, whatever it may be."

Based on our examination of the record, we conclude that defendant was tried by a fair and impartial jury at both the guilt and penalty phases of the trial. The voir dire process was carried out meticulously and thoughtfully to ensure that the jurors ultimately empaneled could render a fair and impartial verdict and sentence based solely on the evidence presented at trial. Many potential jurors admittedly could not set aside their knowledge of defendant's prior convictions. Those jurors were dismissed. The jurors who sat on the jury were subjected to painstaking questioning. Their answers convinced the court they could disregard defendant's prior record or their suspicion of that record and decide the case solely on the facts introduced into evidence at the proceeding. We will not overturn the court's decision merely because the jury might have known of defendant's prior convictions. There is no evidence that such information corrupted their deliberations. We will presume that the jury adhered to the court's instructions. Muhammad, supra, 145 N.J. at 52; State v. Manley, 54 N.J. 259, 270 (1969).

In Koedatich I, supra, 112 N.J. at 285, the defendant also moved to excuse for cause any juror who read or heard about the case. In denying that request we stated: "[i]mplicit in defendant's contention that the trial court should have excluded for cause any juror who read or heard about the case is the notion that voir dire is an ineffective means of determining juror prejudice under such circumstances." Ibid. We declined "to adopt such a rule for which we find no support in this or any other jurisdiction. In fact, such a rule would be inconsistent with long-established precedent holding that acceptable jurors need not be entirely ignorant of the matter at hand." Ibid. (citing Murphy v. Florida, 42l U.S. 794, 799-800, 95 S. Ct. 2031, 2035-36, 44 L. Ed. 2d 589, 594-95 (1975)).

We further disagree with defendant's assertion that State v. Brunson, 132 N.J. 377 (1993) is applicable. In Brunson, we held that the State could offer into evidence only the number, degree, and date of defendant's prior convictions when defendant had prior convictions for the offenses that were the same or similar to the offense charged. The State could not specify the offense. Id. at 391. There is a difference, however, between allowing evidence of a prior conviction to impeach a defendant's testimony and allowing jurors who suspect or have knowledge of a defendant's prior conviction to serve on a jury.

Even where the jury has learned of defendant's prior convictions, we have refused to reverse when evidence of a defendant's guilt was overwhelming. In Harris, supra, 156 N.J. at 160, we held that "[t]he trial court did not abuse its discretion in failing to empanel two juries before trial" even though some or all of Harris' long list of prior convictions might have been brought to jurors attention during trial. See also State v. Pennington, 119 N.J. 547 (1990) (holding that prior murder convictions could be admitted into evidence to impeach testifying defendant in his capital murder trial). In Pennington, the jury learned of the defendant's prior murder conviction. Id. at 573. We refused to reverse because of "the practical recognition that in the context of the cumulative weight of [the defendant's] inculpatory statement, admission of that evidence would not have affected the jury's determination concerning [his] responsibility for the victim's death, . . ." Brunson, supra, 132 N.J. at 392 (explaining holding in Pennington, supra). Similarly, in State v. Rose, 112 N.J. 454, 489 (1988), due to the overwhelming evidence of guilt, we held that it was not reversible error to admit evidence in the guilt phase of defendant's past conduct. Id. at 508 (reversing death sentence where court failed to give careful and precise limiting instruction).

Unlike Harris, Pennington, and Rose, defendant's prior convictions and "bad acts" were never admitted into evidence, nor mentioned by defense counsel or the State during trial or summation. The State did not even offer evidence of defendant's prior convictions in the penalty phase to rebut defendant's claim of "remorse." Defendant also never requested that the case be tried by two juries. Given defendant's confession and the overwhelming evidence against him, suspicion or knowledge of defendant's prior convictions would not have affected the jury's determination of whether he killed Megan or the outcome of the penalty phase.

Moreover, in the absence of defense counsel's request for limiting instructions on the use of defendant's prior convictions, we do not find that the trial court should have given such instructions sua sponte in either the guilt or penalty phase. Defendant's prior convictions were brought to the jurors' attention only during voir dire as a screening mechanism to eliminate jurors who would be unable to decide the case based only on the evidence presented at trial. Defendant's prior convictions were never introduced into the record or confirmed by the court. Indeed, the trial court redacted as inadmissible all references in defendant's confession to his prior convictions. The court also repeatedly admonished jurors to consider only the evidence in the record. In light of those circumstances, compelling the trial court to issue instructions sua sponte would have marked an unwarranted intrusion into defense counsel's strategy and would have been damaging to defendant.

The court was faced with an unusual problem in this case. There was national and state-wide publicity regarding Megan's Law. Jurors knew about the law and defendant's role in its enactment. Under those circumstances, the court needed to screen jurors to ensure they could carry out their task of impartially judging defendant's guilt. Inquiring into jurors' knowledge about Megan's Law and defendant's prior criminal history was a reasonable way to deal with that problem and not an abuse of discretion.

We therefore conclude that allowing jurors to serve on the jury, despite suspicions that defendant previously had been convicted of sexual offenses, was not reversible error. We further conclude that to give limiting instructions sua sponte would have been inappropriate and would not have changed the outcome of the penalty phase. There were sufficient indicia that the jury relied only on the evidence presented, and not on their suspicions of defendant's prior convictions in reaching their decisions.

Prosecutorial Misconduct

Defendant also maintains that numerous instances of prosecutorial misconduct, in both the guilt and penalty phases of the trial, constitute reversible error.

The standard for reversal based upon prosecutorial misconduct is well-settled in the law. It requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial. We long have held that prosecutorial misconduct is not grounds for reversal of a criminal conviction unless the conduct was so egregious as to deprive defendant of a fair trial. State v. Chew, 150 N.J. 30, 84 (1997) (Chew I); State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 117, S. Ct. 540, 136 L. Ed. 2d 424 (1996); Ramseur, supra, 106 N.J. at 322. The "fair trial" test applies to alleged prosecutorial misconduct in both the guilt, Koedatich I, supra, 112 N.J. at 320-25, and penalty phases of a capital trial. Pennington, supra, 119 N.J. at 565; Rose, supra, 112 N.J. at 509-11.

To justify reversal, the prosecutor's conduct must have been "clearly and unmistakably improper," and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense. Roach, supra, 146 N.J. at 219; State v. Hightower, 120 N.J. 378, 411 (1990); Williams II, supra, 113 N.J. at 452. In determining whether the prosecutor's comments were sufficiently egregious to deny defendant a fair trial, we consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred. State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div. 1997). Specifically, the Court should consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ramseur, supra, 106 N.J. at 322-23; Chew I, supra, 150 N.J. at 84.

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. State v. Irving, 114 N.J. 427, 444 (1989). Failure to object also deprives the court of the opportunity to take curative action. Ibid.

Even if defense counsel fails to object,

"[a] prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that Justice is achieved. Absolute adherence to this duty is stringently compelled in capital cases where the penalty is death." [State v. Long, 119 N.J. 439, 483 (1990) (citations omitted).]

A. Guilt Phase

Defendant alleges numerous instances of prosecutorial misconduct in the guilt phase. Specifically, defendant alleges errors in the prosecutor's opening and closing statements, in her examination of witnesses and in comments denigrating the defense. The State claims, as a general defense, that the prosecutors' statements were based upon inferences reasonably drawn from the evidence presented and therefore, were proper.

Because defense counsel did not object to any of the prosecutor's opening remarks, or to many other remarks now claimed to constitute prosecutorial misconduct, defendant must demonstrate plain error to prevail. State v. Irving, supra, 114 N.J. at 444. Plain error is "error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." Ibid. (citations omitted).

1. Opening Statement

Defendant argues that the prosecutor introduced two themes in her opening statement that she returned to throughout the trial, which constituted error: defendant's sexual perversion before the crimes; and his lack of emotion after the crimes.

In her opening statement, the prosecutor described defendant's interest in Megan in the following way:

"This was not the first time that the defendant had noticed Megan. To the contrary, you will learn that that man, the defendant, had been watching that little girl for months. He had had his eye on Megan, his thoughts anything but pure. And so Megan walked into that house. She couldn't know that about the defendant. So when she walked, her head was filled with vision of a puppy. One can only imagine the visions that filled the defendant's head."

The prosecutor also described defendant's lack of emotion following the murder by: pointing out that defendant denied to the victim's mother that he had seen the victim; describing how defendant calmly and calculatingly placed the victim's body in a toy chest for disposal; and contrasting defendant's demeanor following the crime with the relatively emotional response of the investigating officers.

A prosecutor in her opening statement may state only those facts that she intends to prove in good faith. She also may argue all inferences that properly may be drawn from those facts. Chew, supra, 150 N.J. at 84. As all damaging evidence is inherently prejudicial, the court affords the prosecutor considerable leeway in making her opening. Ibid. However, the court must patrol the boundaries of propriety to ensure that defendant's right to a fair trial is not compromised.

Evaluating the prosecutor's guilt phase opening statement in its entirety along with the trial court's curative instructions, we are unable to conclude that the statement, although at times improper, was so prejudicial as to deny defendant the right to a fair trial. Most of the statements in the State's opening were a fair comment on the evidence actually produced at trial. The prosecutor commented on defendant's motive in kidnapping, sexually assaulting and murdering the victim. Although such information was highly prejudicial and inflammatory, it was excerpted from defendant's own confessions that were admitted into evidence. As we previously have recognized, admissions are always prejudicial. State v. Kuske, 109 N.J. Super. 575, 588 (App. Div.) certif. denied, 56 N.J. 246 (1970). Nonetheless, they are admissible evidence. N.J.R.E. 803(c)(25); State v. Rechtschaffer, 70 N.J. 395, 413-14 (1976). Therefore, we conclude that reference to an admissible portion of a defendant's confession in an opening statement is not reversible misconduct, even if prejudicial to the defense.

Moreover, the court's instructions mitigated the likelihood of error. The trial court clearly advised the jury that opening statements are not evidence. "Opening statements are a means to alert . . . [jurors to] what the case is all about . . . it's somewhat like a road map to tell you where . . . the state is going to go, perhaps indicating the witnesses and the order of witnesses, what witnesses are expected to testify to. But those are expectations. That's not evidence . . . ." We presume that the jury followed the court's specific admonitions regarding the role of opening statements. Feaster, supra, 156 N.J. at 65. Therefore, we find no evidence that the prosecutors remarks substantially prejudiced defendant's right to a fair trial.

2. Elicitation of Testimony Regarding Defendant's Demeanor

Throughout its examination of witnesses, the prosecution inquired into defendant's emotional state following the crime. Specifically, defendant objects to a number of remarks elicited from Detective Pukenas and Sergeant O'Dwyer.

Detective Pukenas testified that defendant recounted the murder to the accompanying officers in a "normal tone of voice." The Detective also stated that "I think he was the only one not crying." Although this questioning may have crossed the bounds of propriety, the court issued the following curative instruction:

"That part, I think, the jury should be instructed to disregard. His emotional state at the time is relevant for you to understand, evaluate all of the testimony. His reaction is not, in my judgment. Please disregard the last statement. Go ahead.

The prosecutor then continued:

Q. Detective, did he ever in the car on the way back say that it was an accident?

A. He never said that.

Q. Did he ever say that he didn't mean to kill her?

A. He never indicated that at all.

Q. Did he ever say he was sorry that he killed her?

A. He never said that.

Q. Did he ever say any words whatsoever that indicated remorse?

A. Nothing like that at all."

On redirect, noted that at one point during the interrogation defendant was "talking a little bit more than he had prior to that . . . [b]ut not in any tone of voice that would indicate remorse." The court sustained defense counsel's objection to the conclusory statement about remorse and told the jury to disregard it.

On direct examination of Sergeant O'Dwyer, the prosecutor elicited testimony regarding defendant's emotional state during the writing of the first confession. When the prosecutor asked whether there was any "point in time when [defendant] cried during this statement?" The trial court sustained the objection and stated "Please disregard that, ladies and gentlemen. Ms. Flicker, there was no reason for that question whatsoever."

The prosecutor then asked Sergeant O'Dwyer to read defendant's statement to the jury. While doing so, O'Dwyer broke down in tears. Beside himself, O'Dwyer accepted the court's invitation to take a break and continue his testimony the next day. The trial court assured defense counsel that if O'Dwyer continued to cry, someone else would read the statement. Defense counsel, noting that other officers also had become emotional while on the stand, suggested to the court that such testimony was a "farce." The trial court disagreed. The court then stated on the record that an "emotional moment" such as O'Dwyer's was to be expected from time to time and admonished the jurors to set aside any emotional response to O'Dwyer's breakdown. The court reminded them to rely solely on the evidence.

The next morning, the court reminded jurors that O'Dwyer's response was not evidence and that they should rely solely on the evidence. The Judge then asked if any juror had been affected. No juror responded.

Defendant alleges that the prosecutor's line of questioning improperly emphasized defendant's lack of remorse. He suggests that the prosecutor's primary purpose was to engender contempt for defendant. That is an improper motive. However, because defendant's confessions were critical to the State's case, we find that defendant's emotional state and state of mind when he confessed are relevant. They demonstrate that defendant's confessions were made knowingly, voluntarily and intelligently. They show that he was in full command of his faculties and not overcome by emotion. Moreover, the prosecutor's questions were based on evidence in the record, and each objection was supplemented with a curative instruction. For all those reasons, we do not find that the prosecutor's questions concerning defendant's demeanor and emotional state constitute plain error.With respect to O'Dwyer's breakdown, we further find that any potential prejudice was ameliorated by the curative instructions given both immediately after and on the morning after the incident. The court also received affirmance from the jurors that they were not affected by emotional outbursts. At most, minimal prejudice resulted from that line of questioning.

3. Repeated Reference to Defendant's Concern Over His Hand and Related Anger Towards Victim

During the crime, the victim bit defendant's hand. At the police station, defendant stated at least three times that he was in considerable pain and blamed the victim for inflicting the wound. Dr. Askin, a forensic dentist, examined defendant's hand at the station and performed bite-mark identification and analysis.

At trial, Sergeant Stanley testified about those events at the police station. He was asked:

"Q: Was there any further mention of the hand?

A: Yes. He continued to complain about his hand being hurt and, again, he felt that Megan was responsible and he blamed her for that injury."

We reject defendant's argument that this line of questioning was prejudicial. Questions regarding defendant's hand constituted relevant evidence of how the crime occurred. The evidence also corroborates the forensic determination that the bite on defendant's hand was made by the victim.

4. Repeated Reference to Dr. Askin's Removal of Victim's Lower Jaw

Dr. Askin testified that he had removed the victim's lower jaw during the autopsy to make a model of her teeth. The prosecutor repeatedly referred to that fact throughout the questioning. The trial court called counsel to sidebar, where he reprimanded the prosecutor:

Let me tell you something I have a bigger problem with, and that's four times now you've asked questions that resulted in the responses, with the removal of the lower jaw. I asked you very specifically, was it relevant as to where the lower jaw was used for making the impressions. You said it was. It wasn't. I think that's inflammatory stuff.

The prosecutor's repeated reference to the fact that Dr. Askin removed the victim's lower jaw during an autopsy should not have been repeated. The trial court recognized as much and harshly reprimanded the prosecutor. The prosecutor promptly conformed her questioning to the court's instruction. We, therefore, conclude that at most, minimal prejudice resulted from this line of questioning.

5. Reference to Defendant's Sexual Perversion

The prosecutor asked Sergeant O'Dwyer to read portions of defendant's statement to the jury. Defendant argues that the excerpts should have been excluded, as they portrayed him as a pedophile or sexual pervert. Specifically, defendant objects to the elicitation of the following portion:

"Q: What was your intention of bringing her into the house?

A:My intentions were just to feel her up and kiss her and try to get her not to say anything. I didn't want to hurt her physically, but I knew I was hurting her mentally by what I was doing.

Q: What do you mean by feel her up?

A: Rub my hands up and down her legs and feel her butt. I learned that my main attraction to younger girls was the softness of their skin. . . . ."

The statements clearly suggest that defendant was attracted to young girls and acted on those feelings. However harmful to defendant, we find the statements properly were admitted. The prosecution is allowed to vigorously and forcefully present the State's case. Rose, supra, 112 N.J. at 509. Even if the statements were inflammatory, the prosecutor did not mischaracterize the evidence. The statements were defendant's own words and established his motive in committing the crime. Moreover, they were made knowingly and voluntarily.

We also reject defendant's argument that the statements improperly referred to uncharged misconduct. The court redacted all inadmissible portions of defendant's statement, i.e., those that referred to his prior convictions. The admitted portions did not specifically inform the jury of defendant's prior crimes and went only to the evidence in this case. Introduction of this relevant evidence was not error.

6. Elicitation of Testimony Regarding Prints of "Smaller Person" Found in Defendant's Bedroom

The defendant also cites Officer Shaw's testimony regarding fingerprint evidence taken from defendant's bedroom as proof that the prosecution was "smearing defendant." Officer Shaw testified that he found a latent fingerprint on the dresser mirror during an authorized search of defendant's bedroom. Shaw described the evidence as "just a small portion of a print, as if it could have been made by a smaller person." Defense counsel objected, but the court overruled his objection and allowed Shaw to explain that the fingerprint did not match the victim's.

In defendant's view, "[t]he implication of this testimony was clear: it suggested that defendant had had another child in his bedroom at some time." Thus, the testimony "impl[ied] that defendant had been guilty of other, similar misconduct." Defendant contends this deprived him of a fair trial.

We find that any prejudice resulting from this comment was minimal. Shaw's statement regarding the "smaller person" was contained in his police report detailing his investigation. It came out during that testimony and was not specifically elicited by the prosecution. Moreover, the prosecutor immediately dropped the inquiry, neither pressing Shaw nor returning to the subject thereafter. Because the comment was brief and was not pressed by the prosecution, it could not have produced an improper result given the overwhelming evidence against defendant.

7. Other Alleged Incidents of Misconduct

Defendant argues that the prosecution improperly: addressed defendant's change of appearance between the time of the crime and trial to depict defendant as the "village pervert"; used gloves when touching defendant's clothes but not the victims; elicited testimony that the victim's mother cried while talking to police; and disparaged defense counsel by questioning his investigative technique. The State maintains that questions regarding defendant's appearance established that defendant accurately was identified as the perpetrator of the crime. Although the State's argument that identification was at issue in this case is not convincing, we find nothing overly suggestive in the prosecutor's questioning. Nor do we find that the fact that the prosecutor wore plastic gloves while handling defendant's clothes but not while handling the victim's clothes, had the capacity to deprive defendant of a fair trial. Neither was it improper for the prosecutor to elicit the fact that the victim's mother cried when she was shown pieces of her daughter's clothing. The testimony simply explained police conduct. Moreover, any error resulting from this line of questioning was cured when the court promptly sustained defendant's objection.

Finally, although defendant correctly objected to the prosecutor's suggestion that the defense had an obligation to examine the casts and photographs prepared by Dr. Askin, the trial court cured any prejudice in this regard with a prompt, accurate, and clear statement of the law.

8. Guilt Phase Summation

Defendant characterizes the guilt phase summation as "a moveable feast of prosecutorial misconduct." The inappropriateness of the summation, defendant claims, is by itself sufficient to warrant reversal of his conviction. He claims the following soliloquy both slanders his character and inflames the jury:

"What kind of man could do such awful deeds? What kind of man could commit such evil acts? The kind of man who could cavalierly dump a child's body and make his next stop a WAWA. The kind of man who could, after executing her daughter, look Maureen Kanka in the eye, within minutes, and not flinch. The kind of man who had the unmitigated gall to offer to hand out fliers for the child whose life he had just snuffed out. The kind of man who, over the course of two days, could talk about the rape and murder and the brutalizing of a child and never show a shred of emotion. The kind of man who could talk about Megan's death and blame her because his hand hurt. The kind of man like the Defendant.

The Defendant killed to protect his own self interest. He killed, he claims to protect himself, because he didn't want Megan to get loose. He didn't want Megan to tell on him. He didn't kill in a rage. He didn't kill in a panic. He didn't kill by accident. This killing was so cold and so calculating that it is chilling in the extreme."

Defendant further claims the following statement was an allegation of uncharged misconduct:

"He had been lusting for this child for weeks or months, as he told Sergeant Stanley on Sunday. He had been watching little girls for weeks and months, and getting those feelings for them. It is an image that is so appalling that it is hard to put into words. He had been lusting after this child."

Defendant also objects to the prosecutor's reference to the fact that defendant did not call to the stand individuals that he claimed actually committed the murders. The prosecutor stated, "based upon all you saw, and all you heard and all you know about his activities, and all you know about his behavior, is there one bit of testimony to suggest [he was covering up for Jenin or Cifelli]?"

Finally, defendant objects to the prosecutor's finale:

"Members of the jury, sexual violation in the park. Is there any image more despicable? Is there any act more depraved than that one? After all that he had done to that child, and he had to violate her one more time. He didn't rip the bags off her head to try to save her. He stuck his finger in her vagina. Can there by any question of his intent?

He dumps her, and then he drives off. This was a man who wanted to kill, intended to kill, meant to kill, chose to kill, and did kill purposely or knowingly by his own conduct.

In those statements, did you once, even once, hear him mention anything about Megan or concern for what she had suffered? Megan would never laugh and never smile again, and he was upset that his hand hurt. Megan lay dead and he blamed her for the wound on his hand. Megan was on a morgue table, and he wanted a band-aid.

A child playing with a dog. Is there any image that does more to evoke childhood than that one? It brings to mind all that childhood is, innocence, happiness, laughter, trust."

At this point defense counsel objected. The court expressed some concern about the "childhood" language but, noting no reaction from the jury when the language was spoken, overruled defense counsel's objection. The prosecutor continued:

"Whenever you see such a scene again, in your mind's eye you will see Megan. You will see her laugh, you will see her smile, and you will think --"

Defense counsel objected again; the trial court overruled his objection. The prosecutor continued and eventually concluded with:

"There is only one word that can begin to do Justice, and that one word must come from you. And that word is guilty. Guilty as to purposeful or knowing murder by his own conduct. Guilty as to every single count in the indictment.

Through your verdicts, I ask you to announce that the Defendant kidnaped, raped, sodomized and murdered Megan. Thank you."

Following summation, the trial court spoke to the jury. He said the summations on both sides were understandably emotional "because this is an emotional case." However, the prosecutor's last comments were "too emotional in nature." The court specifically told the jurors to disregard the portion of the summation asking "why, why, what Megan may be thinking of, things of that nature. . . ."

After the jurors left the courtroom, defense counsel moved for a mistrial, noting that while she hated "to interrupt somebody's summation or somebody's opening," she wondered if she "was doing the right thing by sitting there and not objecting," given the "inflammatory" remarks of the prosecution.The court denied the mistrial motion. He found that, overall, the prosecutor's comments were based on the facts in evidence and were not overly-inflammatory given the circumstances of the case. The trial court further noted that he had watched the jurors and had not observed any adverse affects.

When court reconvened the following day, the trial court admonished the jury that they were not to accept the comments made on summation as evidence. Rather, the court clarified, "if the recollection of the attorney with regard to evidence, the testimony presented before you does not coincide with yours, you are under a duty to disregard those comments and to rely on your own recollection . . . because you are the sole Judges of the facts. The trial court continued:

"But my instruction to you at this time is direct, and it's this: Please separate and completely disregard as you see fit, emotional words, words or phrases or images that have a tendency to inflame from descriptive language that has come before you that moves the argument of counsel forward, that is relevant to a Discussion of the evidence and the inferences that may flow from the evidence. Language that goes to an understanding of that is certainly acceptable. Language that would inflame and serve no purpose, other than to generate sympathy or passion, has no place in the jury room, has no place in any decision that [you] make. So things such as bias, prejudice, sympathy must be excluded, and I instruct you to use your very good judgment when you are considering the summations of counsel in this regard."

Prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. We afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995). Ibid. As Justice Clifford recognized in his Dissent in State v. DiPaglia, 64 N.J. 288, 305 (1974):

"Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented." [citations omitted.]

Nevertheless, the primary duty of a prosecutor is not to obtain convictions but to see that Justice is done. Ramseur, supra, 106 N.J. at 320. "It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935).

We agree that some portions of the prosecutor's summation were improper.

"Any capital trial will necessarily involve testimony and physical evidence pertaining to the victim. This evidence, though admissible, cannot be used in a manner calculated to so confuse or impassion the jury that it inappropriately intertwines irrelevant emotional considerations with relevant evidence. There are occasions when evidence relating to the victim's character and personality may be probative of critical aspects of the trial, e.g., defendant's assertion of self-defense or provocation. Where, however, as in the matter before us, the victim's character has no bearing on the substantive issue of guilt or the penalty to be imposed, the prosecution may not comment on the evidence in a manner that serves only to highlight the victim's virtues in order to inflame the jury." [Williams II, supra, 113 N.J. at 451-52.]

As in Williams II, the prosecutor's remarks in this case contrasted the victim's life and dreams with the terror she felt at the moment of her death. And, as in Williams II, this prosecutor depicted the victim as an angel at the mercy of a defendant who was amoral, e.g., by eliciting testimony at trial regarding defendant's stoic demeanor following the crime and concern over his hand. See Pennington, supra, 119 N.J. at 566-567 (objecting to prosecutor using references to victim to inflame jury and divert its attention from material facts); Marshall I, supra, 123 N.J. at 161 (same).

In Williams II, the Court concluded that "[t]he prosecutor's remarks were clearly improper and should have been stricken from the record and the jury properly instructed to disregard them." 113 N.J. at 452. As inappropriate as the prosecutor's comments were in this case, however, we are not persuaded that in the context of the entire trial the prosecutor's misconduct had the capacity to deprive defendant of a fair trial. First, unlike in Williams II, much of the prosecutor's comments were based on evidence at trial or were in response to defense counsel's summation, i.e., statement that "[Defendant] had been lusting for this child for weeks or months" was based on evidence in record; statement that events leading up to victim's death were "so repulsive, so disturbing . . . that it permeates your very soul" merely depicted the State's evidence "graphically and forcefully"; statements regarding toy box, belt, and plastic bag placed over victim's head were proper reconstruction of murder and demonstration of defendant's intent to kill based on evidence in record; other statements reconstructing the murder were proper demonstration of defendant's intent to kill and based on evidence in record. The prosecutor's reference to defendant's failure to call Brian Jenin or Joseph Cifelli was in response to defense counsel's summation implying that Jenin and Cifelli were actually guilty of the crime.

Second, despite the flagrant misconduct in this case, the trial court was effective in diminishing its prejudicial effect. In most instances of misconduct, the court sustained proper objections by defense counsel and offered curative instructions. The court also reminded the jury in post-summation instructions that this was an emotional case and therefore, the summations were understandably emotional as well. The court admonished the jury to determine guilt based on the evidence in the record.

Most importantly, evidence of defendant's guilt was overwhelming. The State's case was based primarily on the inculpatory statements made by defendant after the murder. Those statements were corroborated by other evidence and witnesses. In view of the overwhelming evidence against defendant, we find that the prosecutor's conduct in the guilt phase was not clearly capable of producing an unjust result. It was not so prejudicial as to deprive defendant of a fair trial. We, therefore, refuse to reverse on this ground.

B. Penalty Phase

The standards that govern prosecutorial conduct at the guilt phase also apply at the penalty phase of a capital trial. Pennington, supra, 119 N.J. at 565. Because defense counsel did not object to many of the comments, we must evaluate the contentions under a plain error standard. Again, our task is to determine whether the prosecutor's misconduct was so egregious as to deprive defendant of a fair trial.

Defendant contends that the prosecutor's "overriding theme" during the penalty phase was disparagement of defense counsel and defense strategy. He specifically objects to four portions of the testimony:

the opening statements; the cross examination of the defense experts; the direct examination of Sergeant Raymond; and the summation. The State responds that the challenged remarks merely reminded the jury that it was responsible for weighing the evidence presented.

1. Opening Statement

Defendant objects to the following comments in the prosecutor's opening statement:

"We are confident that when the smoke clears, much of defendant's evidence will be suspect in your eyes. When evaluating the reliability of the evidence that supports the mitigating factors, it's essential to take a couple of things into consideration. First of all, one, when was the information reported? Was it in anticipation of this penalty phase or reported to an authority prior to the penalty phase being anticipated?"

Defendant complains that the statement "misleads" the jurors by suggesting that defendant had some obligation to provide evidence regarding mitigating factors. He also argues that the phrase "when the smoke clears" suggests that the defense was deceptive and trying to hide the truth. The State counters that the remarks must be placed in the proper context. The prosecutor was asking the jury to consider the origin of the mitigation evidence presented by the defense.

We find nothing objectionable about the statements. It is not improper to ask the jury to consider the timing of evidence production. Documentary evidence in existence before defendant's prosecution would be more credible than evidence gathered in anticipation of the penalty phase of a capital murder case. The bias and interest of the person providing the information also is relevant.

The trial court advised the jury that the opening statements were not evidence. We further observe that defense counsel did not object to those statements. Placing the statements in context, the prosecutor's conduct does not require reversal of defendant's death sentence.

2. Cross-examination of Krych and Podboy

Defendant asserts that the prosecutor's cross-examination of defense mitigation expert, Carol Krych, and the defense psychologist, Dr. Podboy, was highly improper. We disagree.

Krych's testimony was evasive and the prosecutor sought to bring that out on cross-examination. The prosecutor also sought to demonstrate Krych's bias. Although the prosecutor's comment during Dr. Podboy's examination regarding defense strategy was improper, that comment was stricken. Therefore, no prejudice resulted from that incident. Inquiry into the circumstances of Podboy's diagnosis was otherwise proper.

The above instances do not warrant reversal of defendant's death sentence. The trial court sustained defense counsel's objections to improper cross-examination of Krych and Podboy and offered a curative instruction in each case. Accordingly, we find no prejudice capable of producing an unjust result.

3. Direct Examination of Sergeant Raymond

Sergeant Raymond was assigned by the Mercer County Prosecutor's Office to investigate defendant's background. Sergeant Raymond met with Paul Timmendequas, defendant's brother, eight times during his investigation. For the first time on appeal, defendant objects to the following testimony of Sergeant Raymond, taken from the interviews with Paul:

"A. I quote, "I'm through doing anything for the defense." And I asked him, well, why are you through doing anything with the defense? And he said, "I've caught them in so many lies, I'm sick of them."

Q. Did he make comments about Lois and Carol [defense mitigation experts] being two-faced and willing to do anything to win this case?

MR. GREENMAN: Objection, Judge. Leading.

THE COURT: Objection sustained."

Defendant argues that that testimony discredited the defense team and suggested the defense was being deceptive. The State contends that Paul's statements about Krych and Nardone were relevant to the jury's consideration of the weight to be given to the expert's testimony. We agree. Sergeant Raymond provided evidence that was important for ...


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