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State v. Koskovich

June 07, 2001


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

ON APPEAL FROM Judgment of Conviction and Sentence of Death in the Superior Court, Law Division, Sussex County

Chief Justice Poritz PRESIDING

OPINION BY Justice Verniero


CONCURRING/DISSENTING OPINIONS BY Justices Stein, Coleman, Long, and LaVecchia

Argued September 26, 2000

On appeal and cross-appeal from judgment of conviction and sentence of death in the Superior Court, Law Division, Sussex County.

In this capital case, defendant appeals his conviction and death sentence, claiming numerous errors by the trial court in both the guilt and penalty phases of trial. Further, he asserts that absent any trial errors, the sentence is disproportionate when compared to similar cases and should thus be vacated. We affirm the capital and non-capital convictions but agree with defendant that certain errors committed during the penalty phase warrant reversal of the death sentence. In view of that conclusion, we remand for a new sentencing proceeding and do not address defendant's proportionality claims.

I. Facts and Procedural History

A. The Burglary of the Sporting Goods Store

On April 8, 1997, defendant, an eighteen-year-old high school student, suggested to a friend, Michael Conklin, that they burglarize Adventure Sports, a sporting goods store on Route 23 in Franklin Borough, Sussex County. Defendant explained that he wanted to steal several guns that he had viewed at the store, and Conklin agreed to help. Defendant arrived at Conklin's house that evening to execute the plan. After talking for a few minutes, defendant and Conklin left, with Conklin driving defendant's automobile.

Defendant and Conklin drove past the police station and around Franklin to determine if any police officers were in the area. Conklin dropped defendant off at the store, parked the car at a nearby apartment complex, and waited for defendant's return. Defendant smashed the front window of the store with a baseball bat, smashed a display case, and removed three firearms, a .40 caliber semi-automatic pistol, a .22 caliber revolver, and a .45 caliber semi-automatic pistol. The .22 and .45 caliber weapons would later be used by defendant and a different friend to commit two homicides.

About twenty minutes after being dropped off, defendant returned to Conklin's location. Defendant entered the automobile and instructed Conklin to drive to a nearby laundromat. There, defendant hid the three guns under the hood of the car and changed his pants. Defendant and Conklin returned to Conklin's house, where defendant spent the night. The next morning defendant displayed the three guns to Conklin and gave him the .40 caliber semi-automatic pistol. Defendant placed the other two guns in a duffle bag and left Conklin's house.

B. The Homicides and Robbery

Defendant and seventeen-year-old Jayson Vreeland had discussed robbing and possibly killing a delivery person prior to their committing those crimes, although the precise nature and date of that discussion are not indicated in the record. Prior to leaving his home on April 19, 1997, defendant strapped the stolen .45 caliber semi-automatic pistol across his chest and underneath his shirt, and Vreeland strapped the .22 caliber revolver to his chest. They also copied several telephone numbers for local pizzerias from the phone book onto a piece of paper and obtained loose coins from defendant's girlfriend, Kimberly Prestidge.

Defendant and Vreeland left defendant's home in defendant's blue Chevrolet Cavalier, which had two distinguishing characteristics: a loud muffler and a damaged headlight. They proceeded to an abandoned house on Scott Road in Franklin and decided that they would try to have the pizzas delivered to that address. They then drove to a local Dunkin' Donuts to use the pay phone. Defendant and Vreeland called Tony's Pizza to order the pizzas, but quickly canceled that order after learning that Jeremy Giordano, an acquaintance of Vreeland, was on duty as the delivery person that evening. However, after several other restaurants refused to deliver to the remote Scott Road area, defendant and Vreeland called Tony's Pizza a second time and placed the order.

Defendant and Vreeland returned to Scott Road where defendant parked his car in such a manner as to aid in a quick retreat. He loaded the weapons, gave the .22 caliber revolver to Vreeland, and kept the .45 caliber semi-automatic pistol for himself. Defendant and Vreeland then waited at the curb in front of the abandoned house.

At approximately 10:45 p.m., twenty-two-year-old Jeremy Giordano and twenty-five-year-old Giorgio Gallara left Tony's Pizza to make the delivery, with Giordano driving his 1995 Pontiac Grand Am. Giordano approached the address on Scott Road with the passenger side of the Grand Am facing defendant and Vreeland. As Giordano's automobile approached the curb, Gallara lowered the window on the passenger side and asked for $16.50, the sum owed for the pizzas. Defendant turned to his right, looked at Vreeland, and asked him if he had the money, to which Vreeland answered, "yeah." Defendant replied, "[n]o, never mind, I got the money[,]" and reached into his right jacket pocket. He then pulled out the .45 caliber semi-automatic pistol, aimed it at Giordano's automobile, and discharged the gun until it was empty, firing seven shots in rapid succession. Vreeland also fired his weapon into the car.

Giordano's vehicle rolled a short distance and stopped in a bushy, muddy area. Defendant and Vreeland ran to the automobile. Defendant opened the passenger-side door, grabbed Gallara by the jacket, and threw him face down on the ground. Defendant ran around the back of the automobile and similarly removed Giordano from the vehicle. At that point Vreeland yelled, "that's Jeremy, that's Jeremy." Defendant did not recognize either victim. Defendant searched through the clothing of the victims looking for money. Defendant and Vreeland both entered the automobile and searched through the interior of the car, including the glove box.

Vreeland attempted to back the Grand Am out of the muddy area, but the tires spun and became stuck in the mud. Defendant yelled at Vreeland to forget about the vehicle so that they could leave. As they ran back toward defendant's automobile, defendant exclaimed, "I can't believe we did this. I can't believe we did this." Vreeland replied, "I love you man," and they hugged. Vreeland wore black gloves during the shooting and later discarded his blood-stained shirt into a stream.

Once in defendant's vehicle, Vreeland gave defendant the .22 caliber revolver and defendant put both guns under the driver's seat. After driving a short distance, defendant removed his blood-stained khaki pants and put on a pair of white jeans. Defendant drove to a Presbyterian church in Franklin, where he and Vreeland exited the vehicle, approached the front door, and made the sign of the cross. From the church, defendant and Vreeland returned to defendant's home. Defendant placed the two guns and his bloody pants in a gym bag and then put the bag under a pane of glass outside the house. Defendant gave Vreeland a shirt, and they went to a local bowling alley where they stayed a short time before returning to defendant's house. Defendant and Vreeland fell asleep and spent the rest of the night in defendant's home.

After hearing about the killings the next day, Christine Slater, a friend of defendant, contacted the police. The day before the homicides, defendant had shared with Slater his plan to kill a pizza delivery person. A resident of Scott Road who had seen defendant's automobile on Scott Road the evening of the murders also contacted the police after he observed the same vehicle parked at defendant's residence.

During the early morning hours of April 21, 1997, members of the State Police executed a warrant for defendant's arrest at defendant's home. The State Police transported defendant to a fire department parking lot across the street from his home and held him in custody until two officers from the Franklin Borough Police Department arrived. The Franklin officers informed defendant of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The officers searched defendant and found a pouch containing twenty-six pills, which were later identified as Fiorcet (a prescription drug comprised of acetaminophen, caffeine, and a barbiturate).

At the police station defendant signed a Miranda card acknowledging that he had been informed of his rights. The officers conducted an inventory search of defendant's person, finding twelve seeds that appeared to be marijuana and five ten- dollar bills in defendant's wallet.

Detective Jack Repsha of the State Police and Lieutenant Virgil Rome of the Sussex County Prosecutor's Office met with defendant. Detective Repsha informed defendant that he was under arrest and was being charged with the murders of Gallara and Giordano. Defendant was again informed of his constitutional rights by Lieutenant Rome, and he signed a second Miranda form waiving those rights. The two officers then interviewed defendant and he confessed to his role in the killings. After a short break, defendant agreed to record his statement. Defendant again waived his Miranda rights and gave a forty-six minute taped interview in which he confessed to the crimes.

C. The Indictments and Guilt-Phase Proceeding

A Sussex County grand jury indicted defendant, charging him with second-degree conspiracy to commit murder, first-degree robbery, and second-degree burglary (count one); purposeful or knowing murder of Giordano by his own conduct (counts two through five); purposeful or knowing murder of Gallara as an accomplice (counts six through nine); first-degree armed robbery (count ten); second-degree burglary (count eleven); felony murder of Giordano (count twelve); felony murder of Gallara (count thirteen); second-degree possession of a firearm for an unlawful purpose (count fourteen); third-degree unlawful possession of a handgun (count fifteen); and third-degree hindering apprehension or prosecution (count sixteen). In a separate indictment related to the crimes allegedly committed at the sporting goods store, the grand jury charged defendant with third-degree burglary (count one), and third-degree theft by unlawful taking (count two).

In seeking the death penalty, the State informed defendant that it would establish that the murder of Giordano was outrageously or wantonly vile, horrible, or inhumane in that it involved depravity of mind, pursuant to N.J.S.A. 2C:11-3c(4)(c) (the "depravity-of-mind aggravating factor"), and that the murder was committed while defendant was engaged in the commission of a murder or robbery, pursuant to N.J.S.A. 2C:11-3c(4)(g)(the "felony-murder aggravating factor"). In accordance with N.J.S.A. 2C:11-3c, defendant was not eligible for the death penalty for the Gallara murder because he did not commit the homicidal act by his own conduct. (As revealed by the forensic evidence, Vreeland fired the fatal shot that caused Gallara's death.) Defendant pleaded not guilty to all charges.

The guilt phase of defendant's trial was conducted from April 5, 1999, to April 23, 1999. The State presented overwhelming evidence of defendant's guilt. Jason Kelly, a friend of defendant, testified that prior to the commission of the homicides, he gave defendant bullets for a .45 caliber pistol at defendant's request. Christine Slater also testified. She informed the jury about her conversation with defendant in which defendant had stated that he wanted to join the Mafia and be a "hitman," that he thought it would be easier to get into the mob if he killed someone, and that he wanted to be a Navy S.E.A.L. Defendant shared with Slater his plan to kill a pizza delivery person by having a pizza delivered to a remote area, which would allow defendant to kill the delivery person and steal that person's vehicle. Defendant also admitted to Slater that he had burglarized the sporting goods store.

Michael Conklin testified about the Adventure Sports burglary in addition to defendant's plan to rob and shoot a delivery person. (Defendant had apparently asked Conklin to participate in the robbery and shooting along with Vreeland.) Conklin also stated that following the killings, defendant bragged that he and Vreeland ordered a pizza for delivery to Scott Road and murdered the victims. Conklin also testified that after shaking defendant's hand, defendant asked him, "[H]ow does it feel to shake the hand of a killer[?]" That testimony was consistent with the State's theory that defendant committed the crimes to experience the "thrill" of killing.

The State also presented Scott Road resident Stephen Madden as a witness. Madden testified that on the evening of April 19, 1997, the date of the killings, sometime before 10:00 p.m., he observed a blue Chevrolet Cavalier with a loud muffler drive past his home. Madden also testified that he saw the same automobile drive past his home a second time about fifteen to twenty minutes later. The State presented the testimony of two other Scott Road residents who described seeing an automobile with a loud muffler and one headlight on Scott Road the night of the murders.

Several individuals who were present at Dunkin' Donuts on April 19, 1997, identified defendant as one of two young men they saw using the pay phone that evening. A telephone company representative testified that on that date, between 9:58 p.m. and 10:06 p.m., calls were placed from the Dunkin' Donuts pay phone to Tony's Pizza and other restaurants. The witness testified that a second call was placed to Tony's Pizza from the same phone. As corroborating witnesses, employees from Tony's Pizza and other restaurants testified about delivery orders that they had received that evening. An employee from one pizzeria testified that after he told the caller that he was unsure if his restaurant delivered to Scott Road, the caller became very persistent in trying to convince him to make the delivery (for example, the caller promised to give an extra tip for a completed delivery).

A patrolman from the Franklin Borough Police Department, the first officer to arrive on the scene, described finding Giordano's automobile as well as the two bodies lying on the ground and a large amount of blood outside and inside the automobile. A detective from the State Police testified about finding six spent .45 caliber shell casings on the road in front of the abandoned house, and one spent shell casing in the front passenger seat of the automobile.

Dr. Michael Dunne, the Sussex County Medical Examiner, conducted autopsies of the victims and testified about their injuries. Dr. Dunne described two wounds from the bullets that entered the right side of Giordano's neck and exited the left side, explaining that those bullets killed Giordano instantly. Dr. Dunne also found two entry wounds in Giordano's left knee and recovered two .45 caliber bullets from the knee. Because the wounds in Giordano's neck and knee were similar, Dr. Dunne concluded that Giordano had been struck in both locations with .45 caliber bullets. Gallara suffered five gunshot wounds, including a graze wound across his nose, two wounds on his right elbow, and a wound on the right side of his face made by a large caliber bullet. Dr. Dunne concluded that a .22 caliber bullet that entered the back of Gallara's head was the fatal shot.

The State also presented evidence recovered from defendant's home during the early morning hours of April 21, 1997. The police found five strips of paper taped to the wall above a coat hook in defendant's bedroom. Those papers contained these handwritten words: "Weapon's spot. Anyone else, we all kill you. Joe's spot. Anybody else, he kill you too. Tom's spot. Anybody else, he kill you too. Jason's spot, anybody else, I kill you. Cocoa Puff's spot, I'll kill you."

The police also seized two empty .22 caliber cartridge boxes, a gym photo identification card of Gallara, fourteen gun magazines, a price list for crime-related items (such as fake I.D. cards and literature promoting credit card fraud), and violent writings that appeared to be song lyrics. A detective from the prosecutor's office read the lyrics to the jury: "About killing, people, you can kill by [illegible]. On by guns, one night you break in, somebody home. And you take their money and kill by drive [illegible] down the road and shout, and shouting. By the big heads. The Best."

Outside the house, near the front porch, the police recovered a bag that contained the .45 caliber semi-automatic pistol, the .22 caliber revolver, and blood-stained khaki pants. The police also recovered other bags that contained clothes, paperwork, an empty wallet later identified as Gallara's, and a pair of black gloves.

The State presented a DNA expert who testified that she found a match between Giordano's blood and the blood on the khaki pants seized from outside defendant's home. The expert further explained that she found a match between blood located on defendant's coat, which he was wearing when arrested, and the blood of Giordano and Gallara. The expert also testified that Gallara was the dominant contributor to blood found on the black gloves.

The State also produced evidence recovered from a stream near Scott Road, including a shirt, receipts from Tony's Pizza, a guest check, an identification card with Gallara's name on it, and Gallara's driver's license. Detective Repsha testified regarding defendant's statement that chronicled his actions. The jury also heard the audio tape of that statement, in which defendant confessed his role in the killings.

Defense counsel presented the testimony of several witnesses, including Jason Kelly, defendant's friend, who testified that the strips of paper taken from defendant's bedroom were a joke based on the movie "Stripes." Florence Morgan, Conklin's mother, testified that she saw defendant at approximately 8:00 p.m. on April 19, 1997, the night of the murders, and that he seemed anxious and nervous. Kimberly Prestidge, defendant's girlfriend, testified that when defendant and Vreeland returned to defendant's home at approximately 11:30 p.m. on April 19, 1997, they were "wrecked" and "falling all over the place." Prestidge also testified that after defendant and Vreeland returned to defendant's home, she found a five dollar bill in Vreeland's wallet, that there had not been any bills in his wallet earlier in the day, and that the next morning she saw that Vreeland had $170. Defendant himself did not testify.

The defense also presented the testimony of Dr. Frederick Rotgers, an expert in clinical psychology with particular expertise in substance abuse. Dr. Rotgers found no evidence that defendant had any severe mental illness, psychosis, or depression. However, Dr. Rotgers detailed defendant's history of drug and alcohol abuse, especially defendant's use of Fiorcet. The expert concluded that defendant had a substance-abuse disorder, that at the time of the offenses he was under the influence of Fiorcet, and that, based on defendant's use of that drug, his capacity to commit the offenses knowingly and purposely was significantly diminished.

In rebuttal, the State called Dr. Azariah Eshkenazi, an expert in forensic psychiatry, to testify. Dr. Eshkenazi disagreed with Dr. Rotgers's conclusion, noting that defendant's memory of the events was excellent. Dr. Eshkenazi concluded that defendant's ability to act with knowledge and purpose was not affected by his use of Fiorcet.

The jury found defendant guilty of purposeful or knowing murder of Giordano, felony murder of Giordano, purposeful or knowing murder of Gallara, felony murder of Gallara, first-degree robbery, and possession of a firearm for an unlawful purpose. The jury also convicted defendant on the burglary and theft charges related to the crimes committed at the sporting goods store.

Jayson Vreeland was tried separately. The State did not seek the death penalty against Vreeland because he was a juvenile at the time of the murders. N.J.S.A. 2C:11-3g.

D. The Penalty Phase

At the penalty phase of defendant's trial, the State sought to establish the 3c(4)(c) depravity-of-mind and 3c(4)(g) felony- murder aggravating factors. In furtherance of that objective, the State relied on the evidence it produced during the guilt phase, with certain minor exclusions.

In response, defense counsel produced numerous witnesses in support of certain mitigating factors enumerated by statute and available under the statutory "catch-all" provision. (For convenience, we omit the specific citations to the mitigating factors and note that the complete listing of those factors can be found at N.J.S.A. 2C:11-3c(5)(a) to (g). The "catch-all" factor, found at N.J.S.A. 2C:11-3c(5)(h), provides that a defendant may introduce "[a]ny other factor which is relevant to the defendant's character or record or to the circumstances of the offense.")

Lois Nardone, a social worker and "mitigation specialist," provided extensive testimony concerning defendant's family and background. She testified that defendant's family was plagued by domestic violence, infidelity, substance abuse, gambling, criminal behavior, and suicide attempts. Nardone expressed the opinion that defendant was raised in a home without boundaries or structure and that defendant did not have a positive male role model in his life. Nardone asserted that defendant was subjected to emotional neglect and abuse by his family and that he experienced feelings of abandonment and rejection when his mother and father left him to be raised by his grandparents. Nardone also expressed her view that defendant's suicide attempt, which occurred when defendant was awaiting trial in the Sussex County Jail, illustrated the remorse that defendant felt about the killings.

Defendant's father, Stephen Koskovich, chronicled his family's problems and recounted an occasion on which he told defendant he loved him the least of his three sons. Robert Kelly, the father of defendant's friend Jason Kelly, recalled how defendant was a trusted family friend who assisted him and his family when he suffered from cancer. April Kelly, Robert's wife, also described how defendant helped the Kelly family. Leonard Koskovich, defendant's uncle, who described himself as "a menace to society," explained to the jury how he had spent most of his life in prison. He also testified to defendant's disruptive, unhealthy upbringing.

Dr. Edward Dougherty, an expert in forensic psychology, testified that defendant was mentally ill, had a tenuous grasp on reality, and was a developing paranoid schizophrenic. Dr. Gary Glass, an expert in forensic psychiatry, concluded that defendant was mentally ill, was a developing paranoid schizophrenic, and further stated that defendant was affected by mental and emotional disturbances on the date of the crimes.

In rebuttal, the State called Investigator Gary Sandberg of the Sussex County Prosecutor's Office, who testified about a conversation he had with James Stalter, an inmate confined in the cell next to defendant's at the Sussex County Jail. Stalter told Sandberg that defendant stated to Stalter that he (defendant) would rather commit suicide than go to prison because he was afraid of prison.

Timothy Cooney, also of the prosecutor's office, testified about a discussion between himself and defendant's grandmother, Bertha Lippencott, who had been the focus of much of the negative testimony provided by the mitigation specialist, defendant's father, and defendant's uncle. Cooney explained how Lippencott criticized the specialist's report, labeling it "fiction." On cross-examination, Cooney observed that Lippencott cooperated with the State because she was concerned about her reputation and did not want to be blamed for the murders.

Mrs. Giordano, the victim's mother, read a victim-impact statement in which she described her family's feelings about the loss of Jeremy and the impact that it had on their lives. On cross-examination, Mrs. Giordano stated that her whole family "would most like to see Thomas Koskovich take the evil that he's done, [and] turn his life over to Christ[.]" Mrs. Giordano elaborated that "[w]e are not in favor of the death penalty. I would like the jury to evaluate everything according to what they feel is their job to do according to the laws . . . [and] according to how they feel that they have to answer to their God." Defendant declined to make an allocution to the jury.

The jury returned its verdict on May 7, 1999. Eleven jurors voted in favor of the depravity-of-mind aggravating factor, and one juror voted against it. Because aggravating factors must be found unanimously, that one juror's "no" vote served as the entire jury's rejection of the depravity-of-mind factor. However, the jury unanimously found that the State had proven beyond a reasonable doubt the felony-murder aggravating factor.

In consideration of the mitigating factors proffered by defendant, ten jurors found defendant's age at the time of the murder to be a factor. Five jurors similarly found that defendant lacked a significant prior criminal record.

Concerning the catch-all factors, a varying number of jurors found numerous mitigating factors. Twelve jurors found that defendant experienced a significant sense of abandonment and rejection after his father left the family when defendant was about ten years old. The jurors concluded that that rejection further deepened when his mother left him at the age of thirteen to live with her boyfriend. Twelve jurors found that defendant was raised in a home in which infidelity, violence, substance abuse, gambling, criminal activity, and suicide attempts were pervasive. Four jurors found that defendant began abusing drugs at age thirteen as a means of self-medication to deal with his long history of untreated depression. Twelve jurors found that defendant was raised in a home without boundaries, structure, or positive role models. Twelve jurors found that defendant was subjected to emotional abuse and neglect at the hands of his family. Eleven jurors found that defendant was under the influence of a mental or emotional disturbance. Lastly, two jurors found that defendant's ability to appreciate the wrongfulness of his conduct was impaired as a result of intoxication.

The jury unanimously rejected the following mitigating factors: that defendant was under the influence of extreme mental or emotional disturbance that was insufficient to constitute a defense to prosecution; that defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired as a result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution; that defendant's 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 intoxication but not to a degree sufficient to constitute a defense to prosecution; that defendant was remorseful as evidenced by his suicide attempt while awaiting trial; and that defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution.

The jury unanimously determined that the felony-murder aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Accordingly, the trial court sentenced defendant to death in a judgment of capital conviction filed May 7, 1999. We note for completeness that the trial court's original judgment provided that if defendant's death sentence was not implemented by May 7, 2004, his sentence would be automatically modified to a life sentence with a thirty-year period of parole ineligibility. On the State's motion, with no opposition from defendant, this Court summarily amended the judgment to remove that modification. State v. Koskovich, 161 N.J. 144 (1999).

In respect of the robbery committed against Giordano and Gallara, the trial court sentenced defendant to twenty years imprisonment with ten years of parole ineligibility. For the possession of a weapon for an unlawful purpose conviction, defendant was sentenced to ten years imprisonment with five years of parole ineligibility. For the murder of Gallara, defendant was sentenced to prison for life with thirty years of parole ineligibility.

The trial court also sentenced defendant for his other crimes. For the burglary of the sporting goods store, defendant was sentenced to five years imprisonment with three years of parole ineligibility. For the theft at the store, defendant was sentenced to five years imprisonment, with two and one-half years of parole ineligibility, which was made consecutive to the burglary sentence. In sum, the trial court sentenced defendant to an aggregate non-capital sentence of life imprisonment plus forty years, with a fifty and one-half year period of parole ineligibility.

Defendant appeals to this Court as of right under Rule 2:2- 1(a).

II. Guilt Phase

Defendant asserts that he was denied a fair trial because of numerous errors during the guilt phase. We conclude that no claim of error warrants reversal of defendant's capital conviction. We will address each claim separately, starting with defendant's assertions regarding the admission of evidence seized from his bedroom shortly after the crimes occurred.

A. Admission of Evidence Seized from Defendant's Bedroom

Defendant argues that the trial court erred in admitting certain evidence seized by investigators from his bedroom shortly after the homicides. As noted, that evidence included the five strips of paper, gun magazines, a price list for crime-related items, and violent writings that appeared to be song lyrics. We will summarize the arguments of the parties in respect of each piece of evidence, starting with the paper strips.

At trial, defendant objected to the admissibility of the strips of paper found over the coat hooks, arguing that they were irrelevant and that the handwriting had not been properly authenticated. According to defendant, he placed the signs over the coat hooks so that his friends would know where to hang their coats. He asserts that the handwritten language derived from a scene in the movie "Stripes," in which one character jokingly threatens to kill anyone who touches his belongings.

The trial court admitted the paper strips. The police officer who seized the strips testified that he believed them to be relevant because they contained the word "kill." The court noted, we're dealing in this case with a young man who is alleged to have rather, for no real purpose, except possibly establishing himself by reputation as a criminal, if that can be considered a purpose, who for no good purpose supposedly shot and killed some people. And I guess this is trying to show some type of background that he had the mentation to kill people. It's open to a lot of argument both ways, but it seems to me appropriately probative. The State can try to show this as [an] indication of a mindset.

Outside the presence of the jury, the State moved to offer into evidence the gun magazines seized from defendant's bedroom to corroborate testimony about defendant's familiarity with guns and to refute the notion that the gun he ultimately used might have been fired accidentally. Defense counsel objected, arguing that the magazines, which contained such titles as "Combat Handguns," "Handgunning," and "Guns and Weapons," were highly prejudicial. Counsel also argued to the trial court that "the fact that [defendant] looks at guns, enjoys guns really is not an aspect in this case."

The court agreed with the State, admitting the magazines. The court found that defendant's interest in guns "could be part of showing a familiarity with the weapons and ability to use them." Subsequent to its initial ruling, the court agreed to limit the admission to photocopies of the magazines' covers.

The State also offered into evidence a piece of lined notebook paper that listed prices for a number of crime-related items, including fake identification materials and literature promoting credit card fraud. The State contended that such evidence was probative of a mindset of someone embarking on a life of crime. Defense counsel objected on the grounds that the price list would be used solely to show that defendant was a bad person who thought about illegal things. The trial court admitted the evidence, essentially accepting the State's basis for admission.

The trial court also admitted the song lyrics into evidence. Defense counsel objected, arguing that the lyrics had no probative value. In agreeing with the State, the trial court admitted the evidence because it "bespeak[s] a concern that, an involvement, sort of obsession with killing people, and we are dealing with a man who's alleged to have killed other people."

In reviewing the admissibility of each of the disputed items, we must determine whether such evidence was relevant to any fact attempted to be proved or disproved by the State. All relevant evidence is admissible at trial unless prohibited by a specific rule. State v. Wilson, 135 N.J. 4, 13 (1994). N.J.R.E. 401 defines relevant evidence as "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." To be relevant, evidence must have "probative value, which is the tendency of the evidence to establish the proposition that it is offered to prove." Wilson, supra, 135 N.J. at 13. In determining whether evidence satisfies that standard, courts focus on the "logical connection between the proffered evidence and a fact in issue[.]" State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). "If the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted[.]" State v. Covell, 157 N.J. 554, 565 (1999).

Applying those tenets, we are satisfied that the admitted evidence was relevant and, therefore, admissible. Each of the disputed items was offered to help prove that defendant killed the victims knowingly or purposefully, and to prove the motive of defendant advanced by the State, specifically, that defendant killed the victims to experience the "thrill" of killing or to establish his reputation as a criminal. The trial court properly admitted the paper strips and song lyrics because they were sufficiently probative of defendant's motive, in that they revealed defendant's obsession with, or at least interest in, killing. As the trial court stated, the paper strips could be interpreted in various ways. Additionally, a defense witness testified about the "innocent" nature of the strips. In a case like this, however, in which the State's basic theory is that defendant murdered his victims to experience the thrill of killing, the paper strips and song lyrics, which referred to weapons and a willingness and desire to kill, are probative of defendant's motive.

Likewise, the gun magazines were relevant because they helped to establish that defendant intentionally and purposefully murdered the victims and understood that by shooting them, death would result. This Court has never held that gun paraphernalia is per se irrelevant. State v. Loftin, 146 N.J. 295, 383 (1996). In Loftin, the defendant objected to the admission into evidence of certain gun paraphernalia, including bullets, ammunition, and ammunition-making equipment. Ibid. We explained that testimony about that type of evidence supported an inference "of the knowledge, competency, and experience of defendant in handling firearms. Such evidence is significant to show that defendant intended to kill [the victim] when he shot him in the head, and that the shot was not the result of an accidental discharge caused by an inexperienced marksman." Id. at 384.

Similarly, in the present case, the State offered the gun magazines not only to show that defendant was interested in guns, but also to demonstrate defendant's experience and proficiency with weapons, which helped prove that the shooting of Giordano and Gallara was purposeful and knowing. Finally, the trial court properly admitted the price list for the crime-related items. The list was relevant to show defendant's familiarity with certain crimes and to demonstrate his overall criminal motive and intent.

In this appeal, defendant argues for the first time that the objects seized from his bedroom were impermissibly admitted into evidence in violation of N.J.R.E. 404(b). N.J.R.E. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Specifically, defendant contends that the seized items represented "other-conduct" evidence (evidence of conduct that is not overtly criminal in nature but nonetheless wrong or improper), which was impermissibly used to show his propensity to commit a crime. In response, the State claims that N.J.R.E. 404(b) is not implicated by the items seized from defendant's bedroom, and that, regardless, any error regarding the admissibility of that evidence was harmless because of the other strong evidence produced at trial. The State makes a legitimate argument that the items at issue do not represent "other wrongs" as contemplated by N.J.R.E. 404(b), and thus no analysis is required under that rule. Nonetheless, given that there is at least some basis to consider the implication of N.J.R.E. 404(b), we will address defendant's claims.

Evidence of a defendant's other crimes, wrongs, or acts may not be admitted into evidence to prove a defendant's criminal disposition as a basis for proving guilt of the crimes charged. State v. Covell, supra, 157 N.J. at 563; see also State v. Nance, 148 N.J. 376, 386 (1997) (observing that "courts should exclude evidence of other crimes, civil wrongs, or acts enumerated in the . . . rule when such evidence is offered solely to establish the forbidden inference of propensity or predisposition"). Importantly, Rule 404(b) does allow such evidence to be admitted to prove other factual issues, like a defendant's motive, intent, or plan. Covell, supra, 157 N.J. at 563.

Although not overtly criminal in nature, the disputed evidence in the present case was admitted to show both defendant's intent and his motive for the killings. In State v. Cofield, 127 N.J. 328, 338 (1992), this Court established a four- pronged test to determine when "other-crime" evidence is admissible under N.J.R.E. 404(b). The same four-part test is used to determine whether "other-conduct" evidence should be admitted. Nance, supra, 148 N.J. at 387. The test is as follows:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Cofield, supra, 127 N.J. at 338 (citation omitted).]

Under the first prong of Cofield, the evidence of a defendant's prior bad conduct must be relevant to a material fact in dispute. (Because of the similarity of issues, the analysis under this first prong of the Cofield test resembles our previous discussion in respect of whether the items were relevant under N.J.R.E. 401.) At criminal trials, "courts generally admit a wider range of evidence when the motive or intent of the accused is material." Covell, supra, 157 N.J. at 565. See also State v. Rogers, 19 N.J. 218, 228 (1955) ("All evidentiary circumstances which are relevant to or tend to shed light on the motive or intent of the defendant or which tend fairly to explain his actions are admissible in evidence against him although they may have occurred previous to the commission of the offense.").

Courts have frequently admitted other-crime and other- conduct evidence as probative of intent and motive. For example, in State v. Covell, supra, 157 N.J. at 558, the defendant was convicted of child luring in violation of N.J.S.A. 2C:13-6. The Court reasoned that the defendant's statement that he was sexually attracted to young girls was properly admitted at trial and satisfied the first prong of the Cofield test because the "defendant's purpose in luring [the victim] is an essential element to convict defendant[.]" Id. at 567. Specifically, the defendant's statement made "it more likely that defendant's purpose in beckoning to [the victim] was to commit a sexual crime with or against her." Id. at 566-67.

In State v. Erazo, 126 N.J. 112, 117 (1991), the defendant was convicted of capital murder. On the evening of the charged murder, the defendant made certain statements about a prior murder he had committed and for which he had been convicted. The defendant challenged the admission of those statements, as well as the admission of the records of that prior conviction. Id. at 130. The Court found that the

[d]efendant's statements evidence his state of mind at the time he killed [the victim]. . . . They were relevant to whether defendant had killed [the victim] purposely or knowingly[.] Thus, defendant's statements related to the crucial issue of his mental state. The records of defendant's convictions . . . were necessary to prove the State's theory of defendant's motive. [Id. at 131.]

In State v. Crumb, 307 N.J. Super. 204, 231 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998), evidence of the defendant's racist writings were admitted into evidence to help prove the defendant's motive. The Appellate Division reasoned that "[a]lthough defendant's writings are constitutionally protected free expressions of his racial beliefs and are not themselves unlawful, they nonetheless may be interpreted by a jury to constitute other wrongs or acts." Ibid.

In this case, the State's theory was that defendant purposefully or intentionally murdered Giordano and that his motive for doing so was to experience the "thrill" of killing. In that regard, we are satisfied that the evidence taken from defendant's bedroom was relevant to demonstrate defendant's intent. We note that the evidence was not admitted to prove that defendant was a "bad person." Rather, the fact that defendant had a long-standing interest in firearms and violence indicates that he fired his weapon intentionally, not accidentally.

Moreover, defendant's familiarity with firearms tends to prove that he understood that when he fired his weapon at the victims, death would result. The references to killing and death on the paper strips and in the song lyrics helped to reveal defendant's motive and helped the jury to understand, to some degree, defendant's state of mind. Lastly, the evidence admitted in this case was somewhat analogous and similar in nature to the evidence admitted in State v. Covell, State v. Erazo, and State v. Crumb. The first prong of the Cofield test has been satisfied.

The second prong of the Cofield test requires that the other-conduct evidence be similar to, and reasonably close in time to, the offense charged. State v. Covell, supra, 157 N.J. at 567. We conclude that the disputed evidentiary items, all of which relate to guns, violence, killings, or other forms of criminal conduct, were sufficiently similar in nature to the crimes for which defendant was charged. Although the violent writings and the other items do not compare perfectly to an actual killing or robbery, we find that there is a logical connection between that evidence and the crimes charged sufficient to satisfy Cofield's second prong. Moreover, the temporal requirement under the second prong is satisfied because the items were recovered from defendant's bedroom shortly after the killings and thus were reasonably close in time to the offenses charged.

The third prong of the Cofield test "requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong." State v. G.V., 162 N.J. 252, 275 (2000) (Coleman, J., concurring in part and dissenting in part). That prong is satisfied here because there is no serious dispute that the items recovered from defendant's bedroom belonged to defendant. Moreover, the jury could have reasonably interpreted items like the language found on the paper strips or the violent song lyrics to be an expression of defendant's intent to kill. See State v. Covell, supra, 157 N.J. at 568 ("Although being sexually attracted to young girls in and of itself is not a crime, a jury may interpret defendant's expression of those feelings to be a wrong or bad act in relation to his intent. . . . We find that the statement satisfies part three of the Cofield test.").

The fourth prong of the Cofield test requires application of the balancing test contained in N.J.R.E. 403. That test requires the trial court to exclude evidence if "?its probative value is substantially outweighed by the risk of . . . undue prejudice.'" State v. Covell, supra, 157 N.J. at 568 (citation omitted). Evidence claimed to be unduly prejudicial is excluded only when its "probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the issues in the case. State v. Thompson, 59 N.J. 396, 421 (1971). Moreover, "[t]he mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied, ___ U.S. ___, 121 S. Ct. 1380, ___ L. Ed. 2d ___ (2001). Additionally, certain types of evidence, including evidence of motive or intent, "require a very strong showing of prejudice to justify exclusion." State v. Covell, supra, 157 N.J. at 570.

Two prior cases are instructive. In State v. Loftin, supra, 146 N.J. 383-86, this Court considered whether ammunition and bullet-making equipment should have been admitted into evidence at the defendant's trial. Acknowledging that the evidence may have prejudiced the defendant, the Court permitted it nonetheless. "?[T]hat evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof.'" Id. at 385 (quoting State v. Stevens, 115 N.J. 289, 308 (1989)).

Likewise, in State v. DiFrisco, 137 N.J. 434 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996), the Court considered the admission of certain testimony in the defendant's penalty phase trial. The Court noted that, "[c]onsidering that defendant confessed to the execution-style killing of [the victim], the fact that he stole a car, committed a few traffic violations, and yelled at his mother had very little tendency to divert the jurors' attention from their duties." Id. at 497.

Similarly, defendant in the present case has not made the strong showing of prejudice required to justify exclusion of the disputed evidence. The evidence seized from defendant's bedroom was important to the State's theory of the case because it helped to explain defendant's motive for the killings. It was not so inflammatory as to distract the jurors from performing their jobs fairly and in a deliberate fashion. Thus, the fourth prong of the Cofield test has been satisfied.

In sum, we conclude that the trial court properly admitted the disputed evidentiary items. The evidence was relevant to establishing defendant's motive and intent. That the jury was diverted from its duties because of that evidence is highly unlikely. The magazines, song lyrics, paper strips, and crime- related price list were not so inflammatory that they caused the jurors to render a verdict that they would not have otherwise rendered. Admission of the items, therefore, satisfied all prongs of the Cofield test. Even if we assume some slight error on the part of the trial court in admitting the disputed items, it was not clearly capable of producing an unjust result because, absent those items, there remained strong and overwhelming evidence of defendant's guilt. State v. Marrero, 148 N.J. 469, 496-97 (1997).

B. Alleged Prosecutorial Misconduct in Summation

Defendant argues that the State engaged in prosecutorial misconduct by suggesting to the jury in its guilt-phase summation that there could have been a third homicide victim. The State responds that there was no misconduct and that, even if this Court determines that the disputed remarks were prejudicial, they were harmless.

During the State's summation, the prosecutor described the telephone calls that defendant and Vreeland placed to various pizza restaurants on the night of the killings. The prosecutor noted that one restaurant considered making the delivery but ultimately declined to do so. Specifically, the prosecutor stated: "Thankfully for [the restaurant's delivery person] his boss decided not to make that delivery. [The delivery person] may have been killed that night, as well." The trial court overruled defendant's objection to the prosecutor's remark, explaining: "Insofar as the reference [that the delivery person] . . . could have been killed, as well, if he had shown up on the scene. I think, again, that's a -- that's an arguably fair comment that could be made based upon the evidence which was presented in this case."

In considering whether to reverse a conviction based on prosecutorial misconduct, we must examine "the severity of the alleged misconduct and its prejudicial effect on [a] defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). Prosecutorial misconduct is not grounds for reversal unless the "misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). To reverse a conviction on that basis, the Court must find that the misconduct was "?clearly and unmistakably improper,' and . . . substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Timmendequas, supra, 161 N.J. at 575 (citation omitted).

We have repeatedly recognized that the prosecutor's primary duty "is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Prosecutors must be particularly careful to fulfill that duty in capital cases in which death is a potential penalty. State v. Williams, 113 N.J. 393, 448 (1988). That we expect prosecutors to make powerful arguments in summations to the jury is, however, equally clear. State v. Chew, 150 N.J. 30, 84 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). Within certain boundaries, prosecutors are thus afforded considerable leeway in making closing arguments. Ibid.

Applying those tenets, we conclude that the prosecutor's statement about a possible third victim did not rise to the level of prosecutorial misconduct. Defendant correctly points out that the prosecutor erred in referring to an additional, as opposed to an alternative, victim. However, defendant's ability to find one isolated and fleeting reference to a third victim is insufficient to establish prosecutorial misconduct. Nor did that one reference deprive defendant of a fair trial. The prosecutor implied that had another pizza restaurant decided to make the delivery, the delivery person from that restaurant would have been the victim, instead of Giordano or Gallara. We do not believe that the jury, after hearing all of the evidence presented in this case, would have thought realistically that the prosecutor suggested that defendant intended to kill Gallara, Giordano, and a third victim.

C. Court's Instruction Concerning "Own-Conduct" Verdict

Defendant argues that the trial court's jury instruction on knowing or purposeful murder did not inform the jurors that they could return a non-capital murder verdict, even if they disagreed individually in respect of whether defendant fired the fatal shot. Accordingly, defendant contends that the court's charge to the jury deprived him of a legitimate opportunity to receive a non-unanimous "own-conduct" verdict under State v. Brown, 138 N.J. 481 (1994). As noted below, such a verdict would have made defendant ineligible to receive the death penalty. In response, the State asserts that the trial court correctly instructed the jury on knowing and purposeful murder and accomplice liability, and that the court's instruction did not violate the "own- conduct" requirement established by Brown.

Following the presentation of evidence and closing remarks, the trial court instructed the jury on knowing or purposeful murder, explaining the meaning of those terms. Defendant concedes that that aspect of the charge was proper. Defendant also acknowledges that the court stressed to the jurors that, although they had to agree unanimously on whether defendant was guilty or not guilty, they did not have to agree on the underlying theory of guilt. For example, the court instructed the jury that they "would . . . have to agree unanimously and beyond a reasonable doubt that the defendant had acted either purposely or knowingly, but the jury would not necessarily have to be in unanimous agreement on which particular mental state the defendant had."

After explaining the concepts of purposeful and knowing states of mind, the court instructed the jury on the defense of intoxication, the charge of aggravated manslaughter, and the felony-murder charge. The trial court then instructed the jury about accomplice liability, informing the jurors that the defendant Thomas Koskovich could be responsible for the purposeful or knowing murder of the victim, or for the aggravated manslaughter of the victim or for the felony murder of the victim even though he did not personally fire the bullet or bullets that directly caused the death of the victim if his accomplice Jayson Vreeland fired the fatal bullet or bullets.

There are some limitations on the criminal responsibility of an accomplice which I want to mention to you. As indicated by what I said earlier, a person is basically responsible for the actions of an accomplice in crime just as though he himself had performed those actions. There are however, two exceptions to the rule which are important in this case. The first is, that in order to be subject to the death penalty for a purposeful or knowing murder, the defendant must have caused the death of the victim by his own conduct. And in the context of this case, that exception or limitation means that if the jury finds the defendant Thomas Koskovich is guilty of the knowing or purposeful murder of Jeremy Giordano and that's a finding that [has] to be made by the unanimous vote of the jurors, then the jury would have to make a further decision as to whether the defendant Thomas Koskovich personally fired the bullet or bullets that directly caused the death of Jeremy Giordano.

If the jury unanimously finds beyond a reasonable doubt that the defendant Thomas Koskovich fired the bullet or bullets that caused the death of Jeremy Giordano, then the defendant would be – would be subject to the possibility of having the death penalty imposed upon him and we would move to a penalty proceeding during which the jury would hear further evidence and would decide whether the death penalty should actually be imposed.

Later in its charge, the court summarized the possible outcomes that the jury could reach:

[I]f the jury unanimously finds beyond a reasonable doubt that the defendant Thomas Koskovich is guilty of purposeful or knowing murder but the jury does not unanimously find beyond a reasonable doubt that the defendant personally fired the bullet or bullets that directly caused the death of Jeremy Giordano, then I will sentence the defendant to a term of imprisonment which may go up to life imprisonment and there will be a mandatory minimum sentence of at least 30 years imprisonment without possibility of parole.

. . . If the jury unanimously finds beyond a reasonable doubt that the defendant Thomas Koskovich is guilty of purposeful and knowing murder and the jury also finds unanimously beyond a reasonable doubt that the defendant personally fired the bullet or bullets that directly caused the death of Jeremy Giordano then the defendant would be subject to the possibility of having the death penalty imposed upon him and we would move to a penalty proceeding during which the jury would hear further evidence and would decide whether the death penalty should actually be imposed.

. . . The State has also brought charges against the defendant Thomas Koskovich involving the killing of [Giorgio] Gallara. In general those charges parallel the charges involving the killing of Jeremy Giordano except for the identity of the victim. In the interest of keeping my instructions to you relatively simple and clear I will not repeat in detail the instructions which I gave with respect to the charges involving the death or the killing of Jeremy Giordano.

In general, the instructions which I gave with respect to the charges involving the killing of Jeremy Giordano apply with respect to the charges involving the killing of [Giorgio] Gallara, exception of course for the identity of the victim and the outcomes are mostly the same.

On the varied lists which I will give to you the charges involving the killing of [Giorgio Gallara] are set forth in the same detail as the charges involving the killing of Jeremy Giordano. So the verdict list has the charges set forth in equal detail with respect both to Jeremy Giordano and [Giorgio] Gallara. However, there is one very important difference between the killing of Jeremy Giordano and the killing of [Giorgio] Gallara so far as the defendant Thomas Koskovich is concerned.

The State has presented proofs attempting to establish that the defendant Thomas Koskovich personally fired the bullet or bullets, .45 caliber which directly caused the death of Jeremy Giordano. But the [S]tate has not presented any proofs attempting to establish that the defendant Thomas Koskovich personally fired the bullet or bullets, .22 caliber which directly caused the death of [Giorgio] Gallara.

On the contrary, the only proofs presented by the [S]tate on this issue tend to establish that Jayson Vreeland fired the bullet or bullets which directly caused the death of [Giorgio] Gallara. Accordingly, under the proofs in this case, the jury can not find that the defendant Thomas Koskovich by his own conduct caused the death of [Giorgio] Gallara through personally firing the fatal bullet, even though the jury may find that the defendant Thomas Koskovich is guilty of the purposeful or knowing murder of [Giorgio] Gallara if it accepts the proofs of the [S]tate as being true.

In short, if you believe the State's proofs and if you also believe them insofar as they involve accomplices in crime, you could find the defendant Thomas Koskovich guilty of the purposeful or knowing murder of [Giorgio] Gallara. But you could not find him guilty of having personally caused the death, which means that he would not be subject to the death penalty on that charge.

So the defendant Thomas Koskovich is not subjected to the possibility of the death sentence with respect to the killing of [Giorgio] Gallara.

After the court completed its formal instructions, the court indicated to the jury that it would also explain the verdict list. At that juncture, defense counsel requested that the court ensure that the "own-conduct" charge explicitly indicate that unanimity was not required, to which the judge responded, "it will be covered when I go over the verdict list. I think that's an easier way to do it. So I'll do it that way." Thereafter, the court instructed the jury as follows:

I just want to take a couple of minutes to briefly go over the verdict list with you. You'll notice that I set up a separate entry for each charge against the defendant. And under each charge I have the essential elements of what has to be proven for that charge. And then there's a place for the jury to vote not guilty or guilty. . . .

I want to emphasize what I said or point out again what I've said in the earlier instructions. For each verdict where you're asked, where you return either a not guilty or guilty, wherever the jury enters a not guilty or guilty determination, that must be unanimous. So all 12 of you, if the answer to the first charge was not guilty, all 12 of you would have to agree it's not guilty. If it were guilty all 12 of you would have to agree that it was guilty. So it has to be unanimous.

There are however two spots on this verdict list where there is departure for the requirement of a unanimous vote of the jury. Let me just point those out to you so you'll be aware of them as you come to them. This [is] on the very first charge, the charge of purposeful and knowing murder of Jeremy Giordano. You will see that first you would say either not guilty or guilty of that charge.

. . . [I]f you return a verdict on purposeful or knowing murder the verdict should . . . unanimously be either not guilty or guilty. However, you drop right below that you'll see another entry. If the jury finds that the defendant is guilty of this charge, so if you have found that . . . he's guilty of purposeful and knowing murder, then you have to answer another question.

And that other question is, does the jury unanimously find beyond a reasonable doubt that the defendant Thomas Koskovich personally fired the bullet or bullets that directly caused the death of Jeremy Giordano. You're asked to answer that question. And the distinction between the options . . . is important. If you answer that question yes then the defendant would be subject to the possibility of the death penalty and would go to the penalty phase. If you answer the question no, let's say you find him guilty but you did not find that he fired the fatal bullet or bullets personally and directly. If you answer no then the case would not proceed as to a penalty phase and I would simply sentence the defendant to up to life imprisonment with mandatory minimum without parole of 30 years.

But let me just point out a difference. In order to answer that question yes all 12 of you must agree. Notice the question says, does the jury unanimously find beyond a reasonable doubt that the defendant Thomas Koskovich personally fired the bullet or bullets that directly caused the death of Jeremy Giordano. In order for the answer to be yes all 12 of you must agree. But suppose all 12 of you didn't agree. Let's suppose you had a discussion about it and you went through it, you sorted it, you exchanged views among each [other], between each other and just for example suppose six of you thought the answer should be yes and six thought the answer should be no, where six thought he fired the fatal bullets and 6 thought he did not. The answer then is no. In other words that does not require a unanimous verdict the no. The no just reflect[s] it isn't unanimous. So if it [is] 11 to one, if it's ten to two, nine to three, whatever combination less than 12 to zero, if it's not unanimous agreement that the answer is yes then the answer is no. Okay.

The following day, defense counsel objected to the court's "own-conduct" instruction. The court overruled the objection. The court explained that the charge had been tailored to the facts of the case and that it correctly emphasized to the jury that defendant could not be subjected to the death penalty unless the jury found that he murdered Giordano by his own conduct. The court reasoned that the jury had been provided with an appropriate and objective charge, and that defendant "could not have gotten a better charge[.]"

To be eligible for the death penalty under N.J.S.A. 2C:11- 3c, a defendant must cause the victim's death by his or her own conduct (or under other circumstances not pertinent to this appeal). State v. Loftin, supra, 146 N.J. at 349; see also State v. Feaster, 156 N.J. 1, 38 (1998) ("[T]he New Jersey Death Penalty Act . . . ?resurrect[ed] the distinction between a principal and an accomplice' in determining whether a defendant is a candidate for the death penalty.") (citations omitted), cert. denied, ___ U.S. ___, 121 S. Ct. 1380, ___ L. Ed. 2d ___ (2001); State v. Brown, supra, 138 N.J. at 509-10 (observing that "the Act makes death-eligible only those defendants who are convicted of purposeful or knowing murder and . . . [who] ?committed the homicidal act by [their] own conduct'").

However, the "own-conduct" element is distinct from whether a defendant committed purposeful or knowing murder. State v. Feaster, supra, 156 N.J. at 38. The "own-conduct" element acts as a "trigger" with respect to whether a defendant is eligible for the death penalty. Ibid.; see also State v. Brown, supra, 138 N.J. at 510; State v. Gerald, 113 N.J. 40, 93 (1988) ("The legislative history of the Act makes it clear . . . that in enacting [N.J.S.A. 2C:11-3c], the Legislature intended to distinguish, for purposes of punishment only, a murderer who actually killed -- the ?triggerman' -- from one whose conviction rests on a theory of vicarious liability[.]")

In Feaster, supra, 156 N.J. at 42-43, this Court recently discussed the relationship between the "own-conduct" requirement and accomplice liability. We specifically addressed the instruction to be given the jury in respect of that issue:

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

We emphasize that the jury's initial determination of guilt or innocence on the charge of purposeful-or-knowing murder is not intended to resolve whether the defendant acted as principal or accomplice. Only subsequent to a guilty verdict of purposeful- or-knowing murder will the jury specifically consider what form of murder –- accomplice- liability or own-conduct –- supports the murder conviction. Our case law supports that view of the jury's deliberations. [Ibid. (internal citations omitted).]

We are satisfied that the court in this case properly instructed the jury on the own-conduct requirement. Initially, the court described to the jury the elements of knowing or purposeful murder and explained that a guilty finding on that issue had to be unanimous. As noted, that question is distinct from the "own-conduct" question, and the trial court properly separated the two inquiries for the jury. The court indicated to the jury that if it unanimously found defendant guilty of knowing or purposeful murder, only then was it to consider whether defendant had committed the murder by his own conduct.

Furthermore, the trial court emphasized that in order for defendant to be eligible for the death sentence, the jury had to find unanimously that defendant committed the murders by his own conduct. The court also stressed that if less than all of the jurors agreed, the jury had to return a "no" verdict on the "own- conduct" issue. The verdict list itself explicitly indicated to the jury that if it voted "no" on that issue, the case would "not proceed to a penalty phase." Thus, consistent with Feaster, the trial court properly informed the jury that it need not be unanimous on the "own-conduct" issue. The court also informed the jury about the sentencing consequences of the "own-conduct" finding. Accordingly, defendant was not deprived of a legitimate opportunity to receive a non-unanimous "own-conduct" verdict.

III. Penalty Phase

Defendant claims numerous errors in the penalty phase, many of which we reject. However, we find merit in three of defendant's claims. They are: first, that the trial court erred in instructing the jury concerning its use of the victim-impact testimony; second, that the court erred in failing to explicitly inform the jury that the court would likely sentence defendant on the non-capital convictions to consecutive sentences and that as a result, defendant would likely spend the rest of his natural life in prison if the jury did not impose the death sentence; and third, that the trial court erred in instructing the jury on how to weigh the aggravating and mitigating factors, which comprises the core of the jury's function in the penalty phase. We conclude that the combined effect of those three errors warrants reversal of defendant's death sentence.

We begin our analysis by discussing defendant's claim of error regarding the content of the victim-impact testimony. That discussion will furnish the context in which to analyze defendant's claims regarding the court's instruction in respect of that testimony. We will then discuss the three errors that, when viewed collectively, constitute reversible error, starting with the trial court's instruction in respect of the victim- impact evidence. Lastly, we will turn to defendant's non- meritorious claims. In the course of our discussion of defendant's claims, we will address the State's cross-appeal.

A. Admission of Victim-Impact Statement

Defendant argues that the victim-impact statement presented to the jury by Loretta Giordano, Jeremy's mother, was unduly prejudicial and violated guidelines established by this Court for such statements in State v. Muhammad, 145 N.J. 23 (1996). Specifically, defendant argues that the statement was too long, inflammatory, emotional, non-factual, and was not sufficiently restricted to the impact that Jeremy's death had on his immediate family. In response, the State contends that the statement complied with the guidelines set forth in Muhammad. The State maintains that both the content and length of the statement were proper and that it did not abridge defendant's constitutional rights.

At the conclusion of the penalty phase of the trial, the State proffered the victim-impact statement of Mrs. Giordano. Defendant objected to various portions of the statement and proposed editing the statement to approximately half its original length. The trial court conducted a Rule 104 hearing to consider defendant's objections. Specifically, defendant objected to references to the Giordano family's religion, Jeremy's relationship with his grandparents, references to the death of Jeremy's grandfather and the effect the grandfather's death had on Jeremy's sister, Mrs. Giordano's descriptions of Jeremy as an infant, and a poem that described Mrs. Giordano's feelings about Jeremy's death.

The trial court made minor changes to the statement and rephrased certain portions of it, but for the most part rejected defendant's arguments and left the statement intact. (The statement as delivered to the jury by Mrs. Giordano is reprinted as an appendix to this opinion.) The trial court, concluding that the statement did not violate the standards promulgated in Muhammad, explained:

There is nothing in the statement, with the minor additions – especially with the minor editing, changes that I have made in the course of our discussion thus far, which is grossly inflammatory. There's nothing that's unduly prejudicial. And there's nothing extremely likely to divert the jury from its focus on the aggravating and mitigating factors. There is nothing in it containing opinions about the defendant, about the crime, in terms of the – you know, the nature of the crime, other than in terms of it's [a] hard thing that hit us. And there's nothing in it about the appropriate sentence. So the – the statement does not violate the – what I'll call the negative restrictions of the Supreme Court as reflected in the [Muhammad] case and in other cases.

Addressing the length of Mrs. Giordano's statement, the trial court observed:

Now, I don't think the statement is unduly long in terms of it being burdensome on us. After all, the trial has taken 20 plus days to get to this point. Everybody else has had days and days to present evidence. When I say everyone, the State has had a chance for days to present evidence and Defense has, for days, presented evidence. And there's been much presented. And I think if the family wants to give some of the details of the background and – we shouldn't sit here with a stop watch and with a – an editor's blue pencil and limit and edit in an unduly – in an unduly controlled environment. So I think there – this is the – this is the family statement, this is Mrs. Giordano's statement, and so long as she meets the requirements of the Supreme Court rulings and of the statute, I think she should be able to say it in her own way and in the kind of detail that she feels comfortable with.

We have recounted the history of the Victim's Rights Amendment in State v. Muhammad, supra, 145 N.J. at 32-35, and need not repeat that history here. Following the passage of that amendment, the Legislature enacted N.J.S.A. 2C:11-3c(6), which provides: "When a defendant at a sentencing proceeding presents evidence of the defendant's character or record pursuant to subparagraph (h) of paragraph (5) of this subsection, the State may present evidence of the murder victim's character and background and of the impact of the murder on the victim's survivors."

In State v. Muhammad, supra, 145 N.J. at 40, we concluded that the victim-impact statute was constitutional under both the Federal and State Constitutions. Examining the Legislature's intent, we noted that "the Legislature [has] determined that before a jury determines whether to sentence a defendant to death, the jurors should, in limited circumstances, be informed about the uniqueness of the victim as a human being and the particular harm caused by the crime." Id. at 45.

In addition to upholding the constitutionality of the statute, we provided guidance to lower courts in considering the admissibility of such evidence. We indicated that the victim- impact evidence had to be relevant and reliable and must satisfy the balancing test contained in N.J.R.E. 403. Id. at 47. The Court suggested that, in evaluating the specific testimony under N.J.R.E. 403, "there is a strong presumption that victim impact evidence that demonstrates that the victim was a unique human being is admissible." Id. at 55. We noted that certain statements are impermissible, including "the victim's family members' characterizations and opinions about the defendant, the crime, or the appropriate sentence." Id. at 47.

Likewise, the Court noted that "statements that are grossly inflammatory, unduly prejudicial, or extremely likely to divert the jury from its focus on the aggravating and mitigating factors should be excluded." Ibid. We reasoned that evidence admitted under the victim-impact statute should be restricted "to statements designed to show the impact of the crime on the victim's family and to statements that demonstrate that the victim was not a faceless stranger, but was a unique individual human being. There is no place in a capital case for unduly inflammatory commentary." Id. at 48.

The Court also cautioned against extensive use of victim- impact evidence and required strict adherence to the legislative provisions. Id. at 52-53. Specifically, we noted that "[v]ictim impact testimony may not be used as a general aggravating factor or as a means of weighing the worth of the defendant against the worth of the victim." Id. at 53. Rather, we emphasized that the statute required "that such evidence can be introduced for only one purpose, namely, to assist the jury in determining the appropriate weight to give the catch-all mitigating factor." Ibid.

Importantly, we observed that victim-impact evidence may not be introduced in such a manner that would foster the arbitrary and unconstitutional imposition of a death sentence. Ibid. To protect the rights of capital defendants from that possibility, the Court outlined certain procedural safeguards. Id. at 54. For example, we determined that absent special circumstances, only one survivor would be allowed "to provide the jury with a glimpse of each victim's uniqueness as a human being and to help the jurors make an informed assessment of the defendant's moral culpability and blameworthiness." Ibid. Especially significant to the present case, the Court also emphasized that

[t]he testimony can provide a general factual profile of the victim, including information about the victim's family, employment, education, and interests. The testimony can describe generally the impact of the victim's death on his or her immediate family. The testimony should be factual, not emotional, and should be free of inflammatory comments or references. [Id. at 54-55.]

With those tenets in mind, we address defendant's arguments. Defendant first claims that the statement was too long and otherwise not appropriate in its tenor and content. As support, defendant points to State v. Timmendequas, supra, 161 N.J. 515, in which the victim-impact statement encompassed only six pages. In contrast, Mrs. Giordano's statement comprised approximately fifteen pages. We reject defendant's argument. We find nothing in our capital jurisprudence that would require us to impose an artificial limit on victim-impact testimony. As the Court observed in State v. Muhammad, supra, 145 N.J. at 47, "the decision to admit specific victim impact statements will typically be in the discretion of the trial court[.]" We should not restrict that discretion by requiring a trial court to measure a victim-impact statement with stop-watch precision.

We do not retreat, however, from our reasoning in Muhammad that victim-impact evidence should provide only a glimpse of the murder victim's life and background, and the impact that his or her death has had on immediate family members. Within those parameters, trial courts retain wide discretion concerning the length of victim-impact testimony. In short, victim-impact evidence must be considered on a case-by-case basis, as no two witnesses will be affected by crime precisely in the same manner. The varying factual circumstances presented in capital cases counsel against our establishing a rigid limit on the time or length of such evidence. The trial court did not abuse its discretion in the present case.

Defendant next claims that the victim's use of poetry in her testimony was improper. Mrs. Giordano included the following poem in her statement to the jury:

As time passes by and you're not here

The days are long and the nights too much to bear

I think most of those loving times, your great big smiles and your silly rhymes

Oh how I wish you were here for a while

I miss your hug and joking ways

And I wish you were here to stay

I know God's love is holding you tight

I know God holds us in his sight

So as time passes by and by I know you hear my awful sigh.

Remember always that I care.

And Mommy and all of us love you, oh, my Jer.

Defendant contends that the poem was too emotional. Moreover, according to defendant, any statement containing poetry, not prose, violates Muhammad. In response, the State emphasizes the brevity of the poem and contends that the poem was not overly emotional.

We decline to establish a per se prohibition against the inclusion of poetry in victim-impact testimony. Although we do not read Muhammad as requiring such a per se rule, we do share defendant's concern about the emotional nature of poetry and similar forms of expression. The Court is reluctant to infringe on the ability of victims to express themselves as they see fit, yet we are mindful that such unfettered expressions may be unduly prejudicial to defendants. As in so many other areas of the law, the Court must consider competing concerns in determining the propriety of victim-impact testimony. In considering those concerns here, we uphold the inclusion of the poetry in the present case but caution trial courts to be particularly vigilant in future cases in ensuring that such forms of expression do not breach the parameters established in Muhammad.

In its cross-appeal, the State argues that allowing a family member of a murder victim to testify about the family's opposition to the death penalty violates the guideline established in Muhammad, supra, 145 N.J. 23, which prohibits victim-impact witnesses from expressing their opinions about the appropriate sentence to be imposed. In response, defendant contends that victim-impact witnesses who do not support the imposition of the death penalty should be allowed to share that opinion with the jury because most jurors assume that the victim's family prefers the death penalty.

On cross-examination, defense counsel, over the State's objections, questioned Mrs. Giordano about whether she and her family supported the imposition of the death penalty for defendant. Mrs. Giordano testified that she and her family, "coming from a family of faith and Christians," wanted defendant to "commit himself to Christ." As previously noted, Mrs. Giordano stated that "[w]e are not in favor of the death penalty. I would like the jury to evaluate everything according to what they feel is their job to do according to the laws of the State of New Jersey, according to how they feel that they have to answer to their God." Immediately thereafter, the court explained that it allowed that testimony because it was "useful" for the jury to know. The court, however, cautioned the jurors that "even though Mrs. Giordano and her family may not be supporters of the death penalty, as many people in our society are not, her views aren't controlling."

We agree with the State's position. In Muhammad, supra, 145 N.J. at 55, we barred victim-impact testimony "concerning the victim's family members' characterizations and opinions about the defendant, the crime, or the appropriate sentence." The Court imposed that restriction to help ensure that victim-impact evidence did not inflame the jury or prevent it from deciding the appropriate punishment based solely on relevant factors. Although primarily motivated by a concern that family members would testify in support of the death penalty and thereby unduly prejudice the defendant, the Court's directive in Muhammad applies equally to testimony concerning a family's opposition to the death penalty.

Just as victim-impact testimony supportive of the death penalty could inflame the jury and distract it from relevant evidence, so too could testimony in opposition to the death penalty. Moreover, in Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the United States Supreme Court left undisturbed the holding in Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), that "the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violated the Eighth Amendment [of the United States Constitution]." Payne, supra, 501 U.S. at 830 n.2, 111 S. Ct. at 2611 n.2, 115 L. Ed. 2d at 739 n.2 (emphasis added). We thus clarify that Muhammad's prohibition on victim-impact testimony concerning the appropriate penalty is intended to apply to testimony either in support of, or in opposition to, the death penalty. We are mindful of the possibility that some jurors will assume that a victim-impact witness prefers the death penalty when otherwise silent on that question. To guard against that possibility, trial courts should instruct the jury that a victim- impact witness is precluded from expressing an opinion on capital punishment and, therefore, jurors must draw no inference whatsoever by a witness's silence in that regard.

In sum, viewing Mrs. Giordano's statement in its entirety, we cannot conclude that the court abused its discretion in admitting it. Nothing contained in that statement had the capacity to affect the jury to such an extent that it would have acted arbitrarily in imposing the death sentence. Mrs. Giordano's opinion that she and her family were opposed to the death penalty, although inappropriate, did not prejudice defendant and actually may have been of some minor benefit to him. (Nor did Mrs. Giordano's opinion prejudice the State in view of the jury's disposition.) Aside from that aspect of Mrs. Giordano's testimony, the victim-impact evidence did not transgress the parameters established in Muhammad, and, therefore, we will not disturb the trial court's discretionary rulings.

B. Jury Instructions Relating to the Victim-Impact Statement

Defendant argues that the trial court erred in instructing the jury in respect of how to evaluate the victim-impact evidence and how it was to be utilized during deliberations. Specifically, defendant contends that the court's instructions improperly permitted the jury to weigh or "balance" the worth of Jeremy Giordano against the worth of defendant, to consider sympathy for the victim's family, and to consider the victim- impact evidence in relation to evidence other than the catch-all mitigating factors. The State asserts that the trial judge's charge, when viewed in its entirety, properly instructed the jury on how to evaluate and utilize the victim-impact evidence.

Because those asserted errors in the charge form a major basis of defendant's overall challenge, we recite the charge at length. After instructing the jury about aggravating factors, the court turned to mitigating factors, informing the jury:

[I]n the area of mitigating factors we – we see another sense in which there is a kind of preference in the law to a sentence of imprisonment. And that is that there are some listed statutory factors. The law dealing with mitigating factors and capital punishment list[s] a number of potential mitigating factors which may be present in a case. And if the defense thinks those are present, they can try to prove them. And so far that's the same thing as the law for aggravating factors. The law with respect to aggravating factors lists the aggravating factors. The difference, however, is that the [S]tate cannot go beyond the aggravating factors listed in the statute, nor can the jury. But when mitigating factors, in addition to a number of mitigating factors that are listed, there is a catch-all factor that is made extraordinarily broad. And the catch-all factor is any other factor relevant to the defendant's character or record or to his circumstances of the offense. So that is a very broad factor. And it – it ...

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