Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Josephs

July 15, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARON JOSEPHS, DEFENDANT-APPELLANT.



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

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

LaVecchia, J., writing for a majority Court.

In this capital appeal, Daron Josephs challenges his murder convictions and death sentence, claiming errors in both the guilt and penalty phases of his trial. He also asserts that his capital sentence is disproportionate.

The shootings that caused the deaths of Leon Mitchell, Barrington McLean and Christine Williams on January 22, 1995, resulted from a dispute among brothers and friends involved in a marijuana distribution operation led by Emil Josephs. Emil lived in Camden, and invited those involved in the operation to live with him. Defendant was part of the operation, as were all of the victims. Also staying in the apartment were Turan Josephs and Hugh Josephs, Jr. (Junior). All four of the Josephs had the same father, but defendant and Junior had a different mother than Emil and Turan. Junior and defendant arrived at the apartment together in December of 1994.

Emil testified at defendant's trial. According to Emil, he learned from a friend and associate that defendant and Junior were selling marijuana from another source at Emil's sales location and pocketing the money for themselves. Emil confronted defendant and Junior in the apartment on the evening of January 21, 1995. Mitchell and McLean also were present. Emil told defendant and Junior that they were out of the business, and ordered them to leave. A scuffle ensued between Emil and Junior. Defendant, brandishing a knife, approached Emil from behind, but McLean disarmed him.

Emil went to defendant and Junior's bedroom and took their handguns - a nine millimeter and .45 caliber from their bags and packed their clothes. Mitchell interceded and persuaded Emil to let defendant and Junior stay for the remainder of the night because it was past midnight. Emil took the two guns with him to the attic, where he slept and where he had a third gun, a .357 magnum. Emil later gave the nine millimeter handgun to McLean, who was in the kitchen. According to Emil, a handgun would usually be kept under the kitchen sink for emergencies.

Early the next morning, Emil went down to the kitchen, where he joined Mitchell and Williams. Mitchell left the room, and Junior came in pointing a nine millimeter handgun at Emil. Junior pulled the trigger, but the weapon was empty and did not fire. While Junior reloaded the gun, Emil jumped through the kitchen window, breaking the glass. Two neighbors were in the alley, and they heard the breaking glass and found Emil in the alley covered with blood. Emil told them he was in a fight and someone was trying to kill him.

Emil testified that he heard three shots, a pause, and then additional shots. He also stated that the shots sounded as if they were coming from different guns. The neighbors also heard the shots, and one indicated she was going inside to call the police. When the neighbor returned to the alley, Emil had gone. The neighbor then observed two men matching the description of defendant and Junior emerge from the front door of Emil's apartment. When Turan Josephs returned to the apartment later that day, he discovered that Mitchell, McLean and Williams had been shot to death, and reported the murders to police.

On arrival, police found no sign of forced entry. The three bodies were found in different locations in the apartment. McLean had been shot six times with three different guns: a nine millimeter, a .45 caliber, and possibly a .357 revolver. He also suffered blunt force injuries to the head and arms inflicted by a steam iron. The cause of death was the combined effects of all of the wounds. Mitchell had been shot four times, the wounds being caused by .45 caliber bullets and nine millimeter bullets. The cause of death was the combination of all four wounds. Williams had been shot twice, once in the head and once in the face, both with a nine millimeter handgun.

Defendant was arrested and indicted on charges of first-degree murder of Mitchell, McLean and Williams, attempted murder of Emil, conspiracy to murder, and weapons offenses. Junior apparently has not been located.

Before trial, the State served notice that it would seek the death penalty based on the following aggravating factors: defendant was previously convicted of murder, and the offense was committed while defendant was engaged in the commission of or attempting to commit murder (murder-within-murder aggravating factor). To avoid the guilt- phase jury from being impermissibly influenced by defendant's prior murder conviction, separate juries were empaneled for the guilt and penalty phases.

The jury acquitted defendant of the murder of Williams, but found him guilty of the capital murders of McLean and Mitchell, conspiracy, and the weapons offenses. During the penalty phase, the defense alleged the mitigating factors that defendant was under the influence of mental or emotional disturbance insufficient to constitute a defense to prosecution, his age at the time of the crimes, and thirteen circumstances of defendant's life under the "catch-all" mitigating factor. The jury unanimously found the two aggravating factors, and some jurors found various mitigating factors. The jury concluded, however, that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. On April 6, 2000, judgments of two capital convictions and two death warrants were filed.

HELD: The trial court's instructions to the guilt-phase jury on own-conduct murder and accomplice liability could have affected that jury's determinations that defendant committed the murders by his own-conduct. As a result, the death sentence cannot be sustained. The error does not affect the murder convictions provided the State is willing to accept non-capital sentences.

1. Defendant claims that the State failed to prove beyond a reasonable doubt that he murdered McLean and Mitchell by his own conduct. He argues that because there was no direct evidence linking him to the murders, the jury was required to speculate that he retrieved the other weapons and used them to kill McLean and Mitchell. The Supreme Court concludes that the evidence was sufficient to support the convictions. The forensic evidence established that two different guns were used in the death of Mitchell, three different guns were used in the death of McLean, and that all of the gunshot wounds contributed to each of their deaths. Also, Emil and neighbors heard gunshots being fired at different intervals in the apartment. From the jury's acquittal of defendant in the murder of Mitchell, who died from two nine millimeter gunshot wounds, it is apparent that the jury regarded Junior as the shooter of the nine millimeter handgun. The evidence supported an inference that another shooter was involved, namely defendant. (Pp. 24-35)

2. Defendant contends that the trial court erred in the sequential instructions to the jury on own-conduct murder and accomplice liability, and its admonition to the jury to reach the accomplice-liability issue only if it first found that defendant had committed the own-conduct murder. He argues that the instructions precluded the jury from reaching a non-unanimous verdict on own-conduct murder that would have rendered defendant ineligible for the death penalty. Under N.J.S.A. 2C:11-3(c), only those defendants who commit purposeful or knowing murder by their own conduct or who hire others to do the same are death eligible. Even if a jury disagrees about whether the defendant committed murder by his own conduct or as an accomplice, it may still find the defendant guilty of murder. The consequence of the disagreement, however, is that the jury's decision will constitute a final verdict that results in a sentence of life imprisonment. When a rational basis exists for a jury to convict a capital defendant of a non-death-eligible alternative form of homicide, a trial court should charge that offense in a manner that allows the jury to consider it simultaneously with death-eligible murder. The trial court also must make it clear to the jury that it need not be unanimous on the own-conduct determination. Here, there were two defendants and three guns, and accomplice liability was a very viable theory for defendant. If the jury followed the suggestions of the trial court, however, it might not have even considered accomplice liability until after it decided on own-conduct murder. This error requires reversal of the death sentences, but does not affect the murder convictions provided the State is willing to accept non-capital sentences. However, if the State intends on remand to seek capital sentences for the murders, then defendant's guilt by his own conduct will have to be proven beyond a reasonable doubt in a second guilt-phase trial. (Pp. 36-52)

3. Any other errors in the trial court's guilt-phase instructions either were harmless or did not constitute plain error. The Court also rejects defendant's claims that the jury voir dire was inadequate. (Pp. 52-66)

4. Concerning the penalty phase, the prosecutor improperly diminished one juror's sense of responsibility by suggesting that the appellate process would take care of the juror's concern about "the execution of innocents." The totality of the instructions to the jury may have ameliorated the possibility that this was reversible error, but trial courts are urged to prevent this type of suggestiveness in the future. (Pp. 66-73)

5. Defendant is correct in arguing that the State is required to reprove the elements of murder in the penalty phase to establish the 4(g) aggravating factor of murder in the course of murder. This does not mean that the penalty- phase jury is permitted to alter the guilt-phase verdicts, but they can consider anew the evidence supporting the murder convictions so that they can properly weigh the aggravating factor against the mitigating factors. The instruction that appears in the Judges' Bench Manual requires correction. Defendant also challenged the State's evidence of his prior murder conviction, claiming that it was unnecessarily graphic and detailed, and therefore prejudicial. In the event of a retrial, only the more limited and general description of that victim's death should be permitted. And, the trial court has the authority to control the prejudicial effect of the prior-murder evidence by requiring, if necessary, that it be submitted by stipulation or other limited form. (Pp. 73-110)

6. The Court rejects the dissent's contention that a heightened, "no doubt" standard of proof is required in capital prosecutions based on evidence of a circumstantial nature. The beyond-a-reasonable-doubt standard of proof is imposed by our Code of Criminal Conduct for convictions of all offenses. Numerous other jurisdictions have similarly rejected the call for a heightened standard of proof where circumstantial evidence is involved.

(Pp. 111-115)

7. The Court also reaffirms the constitutionality of New Jersey's death penalty statute. (Pp. 115-122)

The non-capital convictions and the conviction of purposeful or knowing murder are AFFIRMED. The jury's determination that defendant committed the murder by his own conduct, however, is REVERSED and the matter is REMANDED to the Law Division for further proceedings consistent with this disposition.

JUSTICE COLEMAN has filed a separate opinion, concurring in part and dissenting in part, in which CHIEF JUSTICE PORITZ and JUSTICES LONG join, expressing agreement with the majority's affirmance of defendant's murder convictions and its holding that the trial court's sequential charge deprived defendant of a fair trial on the own-conduct death-eligibility issue. He dissents, however, from the majority's holding that the State can elect to retry defendant for capital murder because he concludes that the State's evidence was insufficient as a matter of law to support a jury determination that defendant caused the deaths by his own conduct. Justice Coleman would impose a heightened, "beyond any doubt" standard to the jury's determination of own-conduct, death-eligibility in cases where the State relies exclusively, or nearly exclusively, on circumstantial evidence.

JUSTICE LONG has filed a separate opinion, concurring in part and dissenting in part, agreeing with the reversal of defendant's death sentence. She dissents from the majority's and Justice Coleman's opinions to express her view that the issue of the constitutionality of New Jersey's death penalty statute requires reassessment.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, VERNIERO, and ZAZZALI join in that part of JUSTICE LaVECCHIA's opinion affirming defendant's murder convictions and holding that the sequential instructions to the guilt-phase jury on own-conduct murder and accomplice liability require reversal of the death sentence. JUSTICE COLEMAN has filed a separate opinion concurring and dissenting from Section IV A of the opinion, in which CHIEF JUSTICE PORITZ and JUSTICE LONG join. JUSTICE LONG has filed a separate opinion concurring and dissenting.

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

Argued October 23, 2001

A Camden jury convicted defendant Daron Josephs of purposeful or knowing murder by his own conduct of Leon Mitchell and Barrington McLean, conspiracy to murder Mitchell, McLean, Christine Williams, and Emil Josephs, and related weapon- possession offenses. A separate jury sentenced defendant to death for the murder of Mitchell and McLean. In this appeal, defendant claims error in both the guilt and penalty phases of his trial. He also asserts that his capital sentence is disproportionate and should be vacated.

We affirm defendant's non-capital convictions. Also, defendant's convictions of purposeful or knowing murder of McLean and Mitchell are sustained. Because of error affecting the by own-conduct determinations, we hold that defendant's death eligibility cannot be sustained. Although error in the own-conduct instruction requires reversal of the death sentences, that does not affect defendant's conviction of the murders provided the State is willing to accept non-capital sentences. However, if the State intends on remand to seek again capital sentences for the murders, then defendant's guilt by his own conduct will have to be proven beyond a reasonable doubt in a second guilt-phase trial. As a consequence of our disposition, we need not and do not engage in proportionality review. We also reaffirm our case law upholding the constitutionality of New Jersey's death penalty statute.

I. Facts and Procedural History

The shootings that caused the deaths of Mitchell, McLean, and Williams on January 22, 1995, resulted from a dispute among brothers and friends involved in a marijuana distribution operation led by Emil Josephs. Emil lived in Camden in an apartment located at 3212 Federal Street. Residing with him at the time were his brother, Turan Josephs (TJ), and his friend Barrington McLean. The apartment occupied the second floor and attic of a house. On the second floor were two bedrooms, a kitchen, and one bathroom. McLean and TJ slept in the second floor bedroom located at the front of the house. Emil used the attic as his bedroom.

Although drugs were not distributed from the apartment, Emil kept a quantity of marijuana in a compartment under the stairs leading to the attic. Significant amounts of cash also were kept in the house at times. The drug-dealing business had become very busy around the end-of-year holidays in 1994, taking in approximately $15,000 per week at the time of the shootings.

Emil shared the profits with McLean and TJ, allowing them a one- third share to split between themselves.

Sometime during December 1994, defendant (whose nickname is Dee) and Hugh Josephs Jr. (nicknamed Junior), Emil's half- brothers, moved into the apartment because they had agreed to install carpeting for Emil. It is noteworthy that defendant and Junior arrived in a red Honda Civic that they used while they remained at the apartment on Federal Street. In terms of familial relations, we also note that Emil, TJ, defendant, and Junior share the same father, Hugh Josephs Sr.; however, Emil and TJ have a different mother from defendant and Junior.

Junior was promised $2500, and defendant $1500, to lay the carpeting. Lacking sufficient cash to pay them in full, Emil compensated Junior and defendant with marijuana to sell. The profits from those sales were sufficient to serve as payment for the carpet work. Junior and defendant then stayed on at the apartment, joining Emil's marijuana distribution business by selling for him at a designated location. Emil also enlisted Leon Mitchell and Christine Williams to become involved in the business. They too stayed at the apartment on Federal Street.

Emil was the only person present in the apartment on the evening of Saturday, January 21, 1995, who testified at defendant's trial. Other than defendant, and Junior, whose whereabouts are unknown, all of the others present were killed. According to Emil's testimony, on that Saturday he learned from his friend, "Bloody" (a business associate in the marijuana business), that defendant and Junior were selling marijuana purchased from another source, and that they were selling the other drugs at Emil's sales location. Apparently, the two were pocketing the money from those sales. Selling marijuana purchased from another distributor was contrary to Emil's direct orders to defendant and Junior when he allowed them to deal drugs for him.

Emil returned to the apartment that evening to find McLean, Mitchell, defendant, and Junior sitting in the kitchen. He had directed defendant and Junior to leave their designated sales post and to meet him back at the apartment. Emil described himself as enraged because defendant and Junior had not followed his orders. He told them they were "out of the business." The heated verbal confrontation escalated as Junior and Emil began to scuffle. Brandishing a kitchen knife, defendant approached Emil from behind, but he was disarmed by McLean. Emil ordered Junior and defendant to leave his house, and then proceeded into their bedroom where he took a nine millimeter and .45 caliber gun from their bags and began to pack their clothes. Mitchell interceded and persuaded Emil to let defendant and Junior stay for the remainder of the night because it was past midnight. Nonetheless, Emil took the two guns with him to the attic where he had a third gun, a .357. Normally, a gun would be kept under the kitchen sink for "emergencies."

Emil left his attic bedroom several times that night. The first time he took all three guns with him while he showered before retiring. Again, at approximately one in the morning he went downstairs to use the bathroom, that time taking only the nine millimeter. As he passed by, he saw defendant and Junior awake and sitting on the floor in the bedroom they were using. Emil then encountered McLean in the kitchen, awake and upset over the evening's events. Emil left the nine millimeter with McLean as a show of "respect." Emil did not want McLean to think that he intended to disarm him when all of the guns were moved to Emil's attic room.

Sometime between five and six o'clock in the morning, Emil, dressed only in a tee shirt, underwear, and slippers, went downstairs. He saw defendant and Junior fully dressed in their room as he again passed by. Emil proceeded to the kitchen where he met up with Mitchell and Williams. After a brief time, Mitchell left the room, leaving behind Williams and Emil. Not long thereafter, Junior came in the room. Emil testified that although he was not paying close attention to what Junior was doing, he was aware that Junior went by the sink and then left the room, walking in a hunched-over manner. As noted, a gun typically had been kept in the cabinet under the sink.

Junior then reentered the room, and Williams screamed as he pointed the nine millimeter gun at Emil and stated "What's up now?" Emil asked him if he was going to shoot. Junior proceeded to pull the trigger, but the gun did not fire. While Junior reloaded, Emil jumped through a kitchen window, breaking the glass as he did. He landed, bleeding, in an alley. His neighbors, Delores Morrison and Raymond Mann, were in the alley at the time. They heard the breaking glass and saw Emil covered with blood from gashes on his leg and arm. He told them that he was in a fight and that someone was trying to kill him.

According to Emil, as he ran away from his apartment, he heard three shots, a pause, and then additional shots. He stated that he believed the shots sounded as if coming from different guns. He ran back to his neighbors and asked them if they heard the shots. Morrison said that she did. She also gave him a towel from her laundry basket to wrap around his wounds. Morrison said that she was going to call the police and went inside. Emil waited a few moments, but when Morrison did not return, he left. Morrison emerged from her apartment not long thereafter and found that Emil had left. She then observed two men leave the front door of Emil's apartment. She described them as fair skinned, perhaps Asian, stocky, and of medium height. Compared to the man who jumped out of the window, whom she described as approximately her height, (5'5" or 5'6"), she assessed the other two men as a bit taller. She observed the two men walk down the sidewalk, turn the corner, and disappear.

Emil hitched a ride to the apartment of his friend, Bloody, who arranged for friends to take Emil to New York. Bloody then drove to Philadelphia Airport to pick up TJ and Lorna Palmer, who were returning from Texas with some marijuana for Emil. He dropped them off at Emil's apartment. We note here that Bloody died before trial and, therefore, we have only TJ's recitation concerning these events.

Because TJ had forgotten his keys, he rang the doorbell. When no one answered, Palmer left. TJ then proceeded to climb into the apartment through one of the two kitchen windows, noticing the broken glass on the ground below the windows. TJ found food cooking on the stove and then discovered that Mitchell, McLean, and Williams had been shot to death. Not wanting to be involved in the shootings, TJ removed his personal items from the apartment. He then reported the murders to the police by calling from a pay phone and by flagging down a patrol car. He also contacted a police officer he knew through a friend.

Upon arrival, the police found no sign of forced entry. The three bodies were found in different locations in the apartment. McLean's body was in the front bedroom. Williams' body was found in a crouched position in a corner of the bathroom. Mitchell's body was at the top of the stairs lying on a shower curtain still attached to its rod that had been pulled from its moorings.

The Investigation and Arrest Dr. Robert Catherman, a medical examiner for Camden County, performed autopsies on all three victims. The autopsy on McLean revealed that he had been shot six times. The first bullet entered the top right side of McLean's head at a sharp downward angle, fracturing his skull and causing acute damage to his brain. The second shot went through McLean's face, obliterated his right eye, and exited through his left cheek. It caused bruising to the adjacent lobes of McLean's brain. The third shot entered the back of his left thigh, pierced his scrotum, and then entered and exited his right thigh. The fourth shot entered the back of McLean's upper right thigh and cut through his abdomen. That bullet ruptured his intestine, fractured his right femur, broke his thigh bone, and damaged his colon. The fifth and sixth shots entered and exited McLean's right hand and appeared to be defensive wounds. McLean also suffered eight blunt force injuries, all of which were consistent with having been inflicted by a steam iron. Four of the injuries were to his hands and arms and appeared to be defensive wounds. The other four injuries were inflicted to his head. The head injuries went through the scalp and down to his skull. They did not cause bone damage but may have been sufficient to render McLean unconscious.

The cause of death for McLean was the combined effects of the gunshot wounds that involved the head, trunk, right and left legs, and the right arm and hand, and, to some extent, the blunt force injuries to his head. The bullet from the first shot was recovered from the base of McLean's skull and was identified as a .38 caliber class metal-jacketed lead projectile. The bullet from the fourth shot was recovered from McLean's abdominal wall and was identified as a nine millimeter projectile. Two more bullets were embedded in the carpet directly under McLean's body: a nine millimeter projectile was found under McLean's lower chest, and a .45 caliber projectile was found under McLean's lower abdominal area. Also in the room were two discharged nine millimeter cartridge cases, a discharged .45 caliber cartridge case, and a steam iron. The gunshot wounds were all inflicted from a distance of a little more than a foot and a half.

The autopsy on Mitchell revealed that he had been shot four times. The first shot entered the left side of the front of Mitchell's chest, shattered his spinal column and cord, damaged his liver, stomach, duodenum, and pancreas, and exited through the lower right side of his back. The second shot went through his face and bruised the lobes of his brain. The third shot went through the left side of Mitchell's cheek, also bruised the lobes of his brain, and exited through the jaw. The fourth shot entered his lower lip, shattered his upper jaw, and exited in front of his right ear. There was stippling surrounding the second and third gunshot wounds, indicating that they had been fired at close range. Dr. Catherman found that the cause of Mitchell's death was a combination of all four wounds. There were three defects in the carpeting under Mitchell's body. One of the defects, located under Mitchell's torso, was caused by a projectile that was smaller than a .45 caliber projectile, such as a nine millimeter projectile. The other two defects were under Mitchell's head. They were caused by .45 caliber projectiles. The lead core of a nine millimeter projectile was in Mitchell's hair, near his fourth exit wound, and the jacketing that had surrounded the lead core was in the fourth exit wound.

The autopsy on Williams revealed that she had been shot twice in the head. The first shot struck the bridge of her nose, passed through her face, and exited on the left side of her cheek. There was stippling surrounding the entrance wound, suggesting that the shot had been fired at close range. The second shot entered through the top of Williams' head, passed through her skull and brain, and proceeded on an acutely downward angle through the base of the skull and into the neck. The sharp downward angle of this shot suggested that Williams' head had been flexed against her chest, and that the gun had been pointed directly at the top of Williams' head. This wound had no evidence of residue and was fired from a distance of at least a foot and a half. Two nine millimeter bullets were recovered: one from her chest and the other near her body in the bathroom. A discharged nine millimeter Luger cartridge case also was found near her body.

Sergeant Gerald Burkhart of the New Jersey State Police, an expert in ballistics and firearms identification, determined that three different firearms were responsible for discharging the bullets and shells recovered from the scene and from the victims' bodies. The nine-millimeter-discharged bullets and shells had been fired from one gun, the .45-caliber-discharged bullets and shells had been fired from a second gun, and the .38-caliber-class-discharged bullet, recovered from the base of McLean's skull, had been fired from a third gun, possibly a .357 revolver. Concerning the discharged shells, Sergeant Burkhart testified that they fell into two distinct groupings indicating that they were fired from two guns. He also stated that there is a difference in how different guns sound when discharged.

During cross-examination of Detective Michael Aaron, it was revealed that some of the ballistic casings had been picked up by investigators with bare hands and that no effort was made to test the casings for fingerprints. Sergeant Burkhart did not test the projectiles for fingerprints either. Detective Aaron explained that the preferred method of testing for fingerprints could compromise the ballistics testing that connects ammunition and the gun from which it was fired. He stated further that he did not conduct any of the tests used to determine whether a victim handled or fired a weapon because those tests can yield a positive result when the victim was simply in the same room as a fired gun.

The police did not find useable latent fingerprints in the kitchen, bathroom, or third floor. No cash or firearms were found in the apartment. The police found another discharged nine millimeter cartridge case; a black leather jacket and an electronic organizer, both of which belonged to defendant; two battery operated digital scales; a white plastic bag filled with numerous small-and medium-sized transparent bags typically used for packaging controlled substances; a pillow with a bloody footprint on it in the attic; a knife sticking out from the top of a roll of carpet padding in the second floor hallway; a brown paper bag containing twenty-five small plastic bags filled with what appeared to be marijuana; and some drug ledgers in McLean's handwriting. Forensic tests confirmed that a window in the kitchen had been broken from the inside and that there was human blood and flesh on the glass.

Fonceta Young was interviewed by the police. Young lived in the first floor apartment at 3212 Federal Street. She did not know the people who lived in the second floor apartment. While she was watching television that morning, she heard "thumping" noises coming from the second floor apartment. She described the sound to be like "wrestling" or "playing." After about six or seven seconds of that noise, Young heard seven to nine "tapping" sounds. She thought her upstairs neighbors were having a "domestic argument." Approximately fifteen minutes after that noise ended, she heard the sound of footsteps running down the stairs from the second floor to the ground level. She also heard a man's voice saying, as if in a hurry, "Come on, Dee. Dee, come on."

Joyce Poole also was interviewed. Her home shared a common wall with the house located at 3212 Federal Street. Poole was upstairs when she heard what sounded like "bumping" noises coming from the other side of the common wall. She thought it was the sound of men fighting. She then heard sounds like a jack hammer coming from the apartment. The events she described lasted between ten and fifteen minutes.

Sandra Delgado lived across the street. Although she did not hear gunshots she heard the sound of shattering glass, and when she looked out her window she saw someone speaking to Morrison. She watched as Morrison handed something to the man. Delgado said she went back to bed not thinking that what she had witnessed was significant. Delgado did not know the people living at 3212 Federal Street, but on one occasion she had seen a stream of people, who drove luxury cars with out-of-state license plates, going in and out of the apartment.

At approximately 9:30 a.m. on the morning of the murders Detective Jeffrey Frampton and Officer Shane Sampson were on patrol in Camden. A red Honda Civic approached their car and then made a sudden stop. A black male, who appeared to be 5'6" or 5'7", got out of the car and fled into the neighboring town of Pennsauken. The driver of the Honda then proceeded at high speed in the wrong direction on a one-way street. Frampton and Sampson activated their siren and pursued the Honda until another vehicle cut them off. Believing that they were pursuing a stolen vehicle, they radioed their fellow officers to watch for the Honda. Another unit found the car approximately fifteen minutes later, abandoned at a nearby street corner where it had struck a fire hydrant. The officers took down the vehicle information and impounded the car because it had not been reported as stolen.

The following month Emil returned to Camden and was apprehended by the police. He was interviewed and his wounds photographed. Charged as a fugitive from Texas, Emil was held in the Camden County Jail.

In early March 1995, police obtained arrest warrants for defendant and Junior and a search warrant for their mother's house in Brooklyn. When the search warrant was executed, the police found a letter from the City of Camden indicating that on January 22, 1995, a 1986 Honda Civic with New York license plates had been recovered in Camden and was being held by the Camden Police Department. They also found letters from the Camden County Prosecutor's Office to defendant and Junior, informing them that there were charges pending against them in Camden.

The police obtained a search warrant for the vehicle, which had been taken to a towing and salvage yard. On the seat, police found ignition keys, a large black leather hat, and a pair of sunglasses. No evidence of drugs, drug paraphernalia, or bloodstains were found. The hat was taken because it fit Morrison's description of the hats worn by the men she saw leaving 3212 Federal Street shortly after the shots were fired. Emil later identified the sunglasses as belonging to defendant, and the hat as belonging to Junior.

Pre-Trial and Guilt-Phase Proceedings On February 25, 1998, Camden County Indictment Number 803- 02-98 charged defendant with the following offenses: first- degree purposeful or knowing murder of Barrington McLean by his own conduct, in violation of N.J.S.A. 2C:11-3a(1) and (2) (Count One); first-degree purposeful or knowing murder of Leon Mitchell by his own conduct (Count Two); first-degree purposeful or knowing murder of Christine Williams, not by his own conduct (Count Three); first-degree attempted murder of Emil Josephs, in violation of N.J.S.A. 2C:11-3a (Count Four); second-degree aggravated assault of Emil Josephs, in violation of N.J.S.A. 2C:12-1b(1) (Count Five); conspiracy to murder Emil Josephs, Barrington McLean, Leon Mitchell, and Christine Williams, in violation of N.J.S.A. 2C:5-2 (Counts Six, Seven, Eight, and Nine, respectively); second-degree possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a (Count Ten); and third-degree possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5b (Count Eleven).

In seeking the death penalty, the State informed defendant that it would establish that defendant had been previously convicted of another murder, an aggravating factor pursuant to N.J.S.A. 2C:11-3c(4)(a), and that the offenses were committed while defendant was engaged in the commission of or attempting to commit murder, N.J.S.A. 2C:11-3c(4)(g) (the murder-within- murder aggravating factor).

To avoid the guilt-phase jury from being impermissibly influenced by defendant's prior murder conviction, separate juries were empaneled for the guilt and penalty phases. The guilt-phase trial was conducted from June 2, 1998 through June 25, 1998. A number of items were admitted into evidence over the objection of defendant. The jury observed the victims' bloody clothing, including some underwear; graphic autopsy photographs; and an in-court demonstration of handguns by the State. The State's case was comprised of the testimony of Emil and TJ, the neighbors who met or saw Emil the morning of the murders, representatives of the medical examiner's office, investigating officers, and ballistics experts. Defendant chose not to testify at trial and requested that the jury be charged on the issue.

Defendant was acquitted of the murder of Williams and the attempted murder and aggravated assault of Emil. He was found guilty of the capital murder of McLean and Mitchell, of conspiracy to murder McLean, Mitchell, Emil, and Williams, possession of a firearm for an unlawful purpose, and unlawful possession of a handgun. On April 5, 1999, defendant's motion for a judgment of acquittal or, in the alternative, a new trial, was denied.

Penalty Phase There were several pre-penalty-phase motions. The court granted the State's motion for consolidation of several mitigating factors and also ruled that the State did not have to re-prove the elements of murder to establish aggravating factor 4(g).

The State also moved to exclude the proposed testimony of defense witness Professor Marilyn Miller, a forensic science expert. Professor Miller was engaged by the defense to conduct an evaluation of the physical evidence and to present a crime- scene reconstruction for the penalty-phase jury. Because the penalty-phase jury was not present for the guilt-phase presentation of evidence, Professor Miller would have explained to the second jury defendant's position on the inadequacy of the State's investigation of the physical evidence and the State's failure to preserve the evidence. The defense argued that Professor Miller's testimony was relevant to the circumstances of the crime generally, defendant's lesser role in the crime compared to Junior, possible provocation by the victims, and the State's burden to prove the 4(g) aggravating factor of murder committed in the course of a murder. The trial court concluded that the proposed testimony of Professor Miller was irrelevant to the sentencing phase because it pertained only to a guilt- phase issue; that it was not relevant to the mitigating factors or to the circumstances of the offense; that it would not assist the jury in evaluating defendant's culpability as compared to that of Junior; and that it would not raise doubts concerning the 4(g) aggravating factor. Accordingly, Professor Miller was not permitted to testify.

The trial court also granted defendant's motion to withhold from the penalty-phase jury the determination of the guilt-phase jury that defendant was guilty of murder by his own conduct. Counsel explained that defendant intended to argue as a mitigating factor that he played a lesser role in the offense than Junior. Although the trial court granted defendant's motion, the court additionally instructed the jury that it was not to doubt defendant's guilt of the murders of Mitchell and McLean. Lastly, the trial court ruled that the State could rely on the transcript of the guilt-phase testimony of Emil Josephs because he was unavailable to testify during the penalty phase.

The penalty-phase trial began on March 21, 2000. As noted, the State relied on two aggravating factors: that defendant had been convicted, at some other time, of murder; and that the offenses were committed while defendant was engaged in the commission of murder. For the first aggravating factor, the State relied on testimony from the district attorney who tried defendant in New York that on May 21, 1997, defendant was convicted of second-degree murder in that State. The victim, Philip Rowe, was a twenty-four-year-old "friend" of defendant who suffered two gunshot wounds to the head and one in his hand.

In support of the second aggravating factor, "murder in the course of a murder," the State presented evidence about the police discovery of the shootings; the processing of the apartment for forensic evidence; the general police investigation involving TJ, Emil, and defendant; and the results of ballistics examinations. The guilt-phase testimony of Emil and TJ was read to the jury. Investigator John Alloway, who had responded to the scene as a representative from the medical examiner's office, and Dr. Robert Catherman, who performed the autopsies, testified that the victims appeared to have been killed at or about the same time because their bodies were in the same state of decomposition.

The defense alleged as mitigating factors that defendant was under the influence of mental or emotional disturbance insufficient to constitute a defense to prosecution, N.J.S.A. 2C:11-3c(5)(a); defendant's age at the time of the murders, N.J.S.A. 2C:11-3c(5)(c); and thirteen circumstances of defendant's life under the "catch-all" mitigating factor, N.J.S.A. 2C:11-3c(5)(h). Numerous mitigation witnesses testified on behalf of defendant.

On April 6, 2000, the jury unanimously found both aggravating factors. The jury also found the N.J.S.A. 2C:11- 3C(5)(a) mitigating factor (mental illness or emotional disturbance) (one juror) and eight of the N.J.S.A. 2C(5)(h) (catch-all) factors: impairment of the bonding process between defendant and his mother (five jurors); defendant's lack of parental guidance from his mother (nine jurors); absence of defendant's father from his life (one juror); defendant's vulnerability to being used by others (eight jurors); defendant's relationship with his children and younger sister (three jurors); defendant's positive adjustment in prison (one juror); the precipitation of the murders by defendant's brother (two jurors); and defendant's notification to New York prison authorities about the New Jersey charges when his identity was unknown (nine jurors). Six mitigating factors were unanimously rejected: defendant's age; his witnessing of domestic violence; his family members' attitude about his dark skin color; blame for his brother's misdeeds; defendant's cooperation in his extradition to New Jersey; and any other factor relevant to his character or the offenses.

The jury concluded that the two aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Judgments of two capital convictions and two death warrants were filed on the same date.

On May 25, 2000, the trial court denied a motion for a new trial. The court merged Count Seven (conspiracy to murder McLean) into Count One (capital murder of McLean), Count Eight (conspiracy to murder Mitchell) into Count Two (capital murder of Mitchell), and Count Ten (possession of a firearm for an unlawful purpose) into Counts One and Two. He sentenced defendant on the remaining non-capital convictions as follows: on Count Six (conspiracy to murder Emil Josephs) to a term of ten years to run consecutive to the other sentences and the sentence imposed in New York State; and on Count Eleven (unlawful possession of a handgun) to a term of five years to be served concurrently with the other sentences and the sentence imposed in New York State. The court also imposed an aggregate Violent Crimes Compensation Board penalty of $150 and an aggregate Safe Neighborhoods Services Fund assessment of $225. On May 3, 2000, defendant filed his Notice of Appeal to this Court.

II.

Asserted Guilt-Phase Errors A. Failure to Prove Own-Conduct Murder Defendant asserts a fundamental claim of error. He contends that the State failed to prove beyond a reasonable doubt that he murdered McLean and Mitchell by his own conduct, and therefore did not establish his eligibility for a capital sentence. Defendant points to the absence of direct evidence that any of the shots that killed either McLean or Mitchell were fired by defendant. The State's case relied exclusively on Emil's testimony, other evidence of a circumstantial nature retrieved at the scene of the shooting, and expert testimony. After the jury reached its verdict in the guilt phase, defendant moved to dismiss his capital murder conviction. We note that the own-conduct issue was a matter of concern to the trial court and that defendant's motion required the trial court to assess the sufficiency of the proofs. Nonetheless, after hearing oral argument on the motion, the court concluded that "the circumstantial evidence presented by the State was sufficient to create a reasonable inference that defendant was present at the apartment, possessed a weapon, and acted by his own conduct in causing the deaths of McLean and Mitchell." Under the circumstances, the court found that it was reasonable for the jury to infer that defendant, who had a motive to kill, acted as a second gunman. We agree with that determination.

A motion for judgment of acquittal is governed by Rule 3:18-1, which states:

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

[Rule 3:18-1.] State v. Reyes, 50 N.J. 454 (1967), established that the general test to be applied when determining the sufficiency of evidence is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Id. at 459.]

The same standard or one substantially similar to that set forth in Reyes is common among the various states across the country. See, e.g., State v. Fulminante, 975 P.2d 75, 82-84 (Ariz. 1999) (upholding capital conviction using similar standard after finding sufficient circumstantial evidence, taken as whole, to allow reasonable person to determine defendant's guilt beyond reasonable doubt); People v. Kipp, 113 Cal. Rptr. 2d 27, 50-51 (Cal. 2001) (upholding capital conviction for first-degree murder in commission of robbery after finding sufficient evidence to support robbery conviction using similar standard); People v. Williams 737 N.E.2d 230, 243-44 (Ill. 2000) (applying similar standard in capital murder case to assess sufficiency of evidence), cert. denied, 532 U.S. 996, 121 S. Ct. 1657, 149 L. Ed. 2d 640 (2001); Commonwealth v. Hawkins, 701 A.2d 492, 499- 501 (Pa. 1997) (employing same standard to find sufficient circumstantial evidence to conclude that defendant had requisite malice aforethought and specific intent to kill to support capital conviction); Remington v. Commonwealth, 551 S.E.2d 620, 624 (Va. 2001) (same), cert. denied, 122 S. Ct. 1928 (2002); State v. Davis, 10 P.3d 977, 1021-23 (Wash. 2000) (same).

The Reyes standard accords with the appellate standard for reviewing the sufficiency of evidence to support a criminal conviction that is set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under that appellate standard of review, the relevant question is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. See also State v. Martinez, 97 N.J. 567, 572 (1984) (following Jackson v. Virginia and holding that "the State's right to the benefit of reasonable inferences cannot be used to reduce the State's burden of establishing the essential elements of the offense charged beyond a reasonable doubt"). Thus, when reviewing a trial court's determination on a motion for acquittal, the appellate tribunal must "consider the State's proofs in light of the [Reyes] standard and . . . determine therefrom how the motion should have been decided." State v. Gora, 148 N.J. Super. 582, 596 (App. Div.), certif. denied, 74 N.J. 275 (1977). The approach is the same whether the evidence is direct or circumstantial. State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); State v. Franklin, 52 N.J. 386, 406 (1968); State v. Fiorello, 36 N.J. 80, 87 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 396 (1962). See also, State v. Taccetta, 301 N.J. Super. 227, 241 (App. Div. 1997) (stating "[a]ppellate review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its duty" and citing State v. Butler, 32 N.J. 166, 195 (1960), cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960)). We therefore apply the Reyes standard to assess the sufficiency of the evidence to support defendant's murder convictions and the jury determination that he committed the murders by his own conduct.

Defendant contests the reasonableness of a jury inferring from the evidence that he murdered McLean or Mitchell by his own conduct. According to defendant, the evidence "implicated Junior as the person who shot and killed McLean and Mitchell (as well as Christine Williams)," and only "pure speculation and conjecture" could lead to the conclusion that defendant took a direct and active role in the killings. There were no living witnesses to the murders. Only Emil saw someone attempt to fire a weapon, and that person was Junior, who shot at Emil with a nine millimeter handgun. Although the evidence established that defendant was still in the apartment and had been awake during the prior night talking with his brother, it is undisputed that at the time Emil jumped through the window to escape from Junior, defendant was neither in the room, nor were the other two guns, the .45 and the .357, in view. Therefore, defendant argues that an inference is required to conclude that defendant retrieved those weapons and used them to kill McLean and Mitchell after Emil fled. Other equal, or more plausible, inferences can be drawn, such as that Junior could have shot all three guns. Or, defendant may have assisted Junior only by retrieving the guns for Junior's use. The latter scenario would support a conviction for accomplice murder, but not murder by own conduct. Moreover, that McLean was assaulted with a steam iron could indicate that he was attacked by someone who was unarmed. Defendant argues that the injuries resulting from the attack with the iron were non-lethal, and that the perpetrator would not necessarily have caused McLean's death.

Defendant maintains that the State's contentions about own conduct are as speculative as any offered by the defense. Even assuming Emil testified truthfully, that would not preclude the possibility that Junior fired two of the weapons (including the nine millimeter with which he shot at Emil). It is undisputed that Junior shot all three victims, because all victims were struck with nine millimeter bullets. Junior could have obtained all three guns prior to returning to the kitchen to kill Emil. Finally, in response to the State's theory that multiple shooters had to be involved because of the distinct locations of the victims, defendant notes the close proximity of the kitchen, where Junior shot at Emil, and the hallway and bathroom, where the bodies of Mitchell and Williams were found. If defendant had been armed only with a steam iron, he could have struggled with McLean in the bedroom at the far end of the hallway while Junior shot the others. After the others were killed, Junior then could have come to assist defendant with the struggling McLean.

The State responds that ample evidence supports the convictions. The State points to testimony from the trial establishing that: defendant was in the apartment at the time of the murders; defendant and Junior were the only individuals who left the apartment after the murders; a downstairs neighbor heard two men hurriedly leave the apartment, one of whom referred to the other using defendant's nickname, "Dee;" on the morning of the murders, the police chased a red Honda owned by defendant's mother; a black man fled from the vehicle before the chase began, and the driver was missing from the vehicle when the police found it moments later crashed into a fire hydrant; another neighbor described the two men who left the apartment as wearing leather hats, like the one found in the Honda, and said that the men were black, in their late twenties, and "just a little bit taller than she was;" Emil heard two different sounding guns being fired at or about the same time; McLean and Mitchell, who each engaged in struggles before their deaths, were shot multiple times with different weapons; Williams, on the other hand, was shot only two times through the head with a nine millimeter, and she was found crouched in a corner of the bathroom; Mitchell was found in the hallway on top of a shower curtain indicating that his struggle started in the bathroom but concluded with his being shot in the hallway.

The State disputes that the evidence supports a reasonable inference that Junior was the sole shooter. Defendant must have taken a more active role, asserts the State, because multiple guns were heard firing and the murders occurred within a relatively short period of time in different parts of the apartment. It is implausible that Junior could have wielded three guns to kill the three victims in different parts of the apartment in the short period of time that the murders took place. Further, accepting the medical examiner's testimony that all of the gunshot wounds, as well as the blunt force injuries in the case of McLean, contributed to the victims' deaths, defendant could be found guilty of murder by his own conduct even if he was only responsible for some of the shots. Finally, in response to defendant's hypothesis that whoever beat McLean with the steam iron was unarmed, the State asserts that the jury apparently believed that defendant was armed because it convicted him of the murder of Mitchell, who was shot with two separate guns but was not beaten.

In addition, the State contends that the evidence presented at trial illuminated defendant's probable motives: greed and revenge for being told to leave the apartment and the lucrative drug-distribution operation. That revenge would cause defendant to become physically violent was demonstrated the night before the murder when McLean had to wrestle a kitchen knife from him. The greed motive, on the other hand, was supported by the fact that a bloody footprint was found in the attic where, according to Emil, he had stored $36,000.

The State's position on the sufficiency of the evidence is the better of the two. Of particular note is the forensic evidence. According to that testimony, which was not contradicted or impeached, Williams was killed by two nine millimeter gunshots to the head. Mitchell sustained four gunshot wounds: through the chest, the top of the forehead, the left cheek of his face, and the lower lip of his mouth. A projectile consistent with a nine millimeter bullet was found under Mitchell's torso. Two .45 caliber projectiles were found under his head. The lead core of a nine millimeter projectile was in his hair near an exit wound, and its jacketing was in the wound. Thus, two different guns were used in his death, the shots of both contributing to his death.

McLean sustained a total of six gunshot wounds: through the right forearm, the backs of each thigh, the left cheek of his face and the back right side of the head. A nine millimeter bullet entered through the back of the right thigh. The shot to the back right side of the head was from a .38 caliber bullet that was not from the same gun as the recovered nine millimeter or .45 caliber bullets. A .45 caliber bullet was recovered under the carpet under his lower abdomen and a nine millimeter bullet under his lower chest. A nine millimeter projectile was recovered from his abdominal area. The shots from each of the three different guns contributed to his cause of death.

Sergeant Burkhart, qualified as an expert in ballistics and firearms identification, established that all of the nine millimeter bullets had been fired from one gun, all the .45 caliber bullets had been fired from a second gun, and the .38 caliber bullet had been fired from a third gun, possibly a .357 revolver.

Emil's testimony identified Junior as having the nine millimeter when Emil fled the apartment. He immediately encountered neighbors and both Emil and his neighbors heard shots at different intervals being fired within the apartment. Although arguably Emil's testimony is self-serving, having been given in exchange for cooperation with the State, it was corroborated in significant ways by the testimony of what neighbors heard going on in the apartment after Emil had jumped from the kitchen window. Tussling and shots fired at different intervals were heard by various neighbors, and defendant's nickname was heard being uttered by one of two men leaving the apartment thereafter.

Moreover, the fact that Williams was shot only with a nine millimeter suggests that two shooters were involved in the deaths of McLean and Mitchell -- each of whom was shot not only with a nine millimeter, but also with one or two other guns. McLean, who was found down the hall in the bedroom, was shot at with three types of guns and bludgeoned with a steam iron. His struggle indicated that more than one perpetrator was involved in administering the shots from three guns and the blows from the iron. Similarly, Mitchell's struggle involved his movement into the hallway from the bathroom with the shower curtain and rod in tow before he was shot with two different guns: the nine millimeter and the .45. Only Williams, who was found crouched on the floor in a corner of the bathroom, was shot in the head twice with a single gun -- the nine millimeter. From the angle and nature of her wounds, the jury reasonably could infer that she struggled the least and that would be consistent with the jury's finding that only one perpetrator was involved in her death. From the jury's acquittal of defendant of the Williams' murder, it is apparent that the jury regarded Junior as the shooter of the nine millimeter. The jury also could conclude that a second shooter was involved, namely defendant. Coupling that determination with the medical examiner's uncontradicted and unimpeached testimony that McLean and Mitchell died from the combination of their gunshot wounds and, in McLean's case also from the blunt force injuries to his head, the jury had ample basis reasonably to infer that defendant had committed own- conduct murder with respect to McLean and Mitchell.

We do not reweigh the evidence considered by the jury in our review. Appellate review serves to corroborate the absence of an injustice, taking care to ensure that the jury has not committed an obvious failure of duty. Mindful that we examine the sufficiency of the evidence by viewing it in its entirety and by giving the State the benefit of all reasonable inferences that can be drawn from the evidence in its favor, we conclude that the trial court did not err in denying defendant's motion for judgment of acquittal based on a failure of proof. Accordingly, we reject this first and most fundamental challenge to whether the jury could have found defendant guilty of own- conduct murder.

B. Sequential Instruction to Jury on Own-Conduct Murder and Accomplice Liability

Defendant contends that the trial court erred in the sequential instructions to the jury on own-conduct murder and accomplice liability, and its admonition to the jury to reach the accomplice-liability issue only if it first found that defendant had not committed own-conduct murder. He argues that the effect of the instructions precluded the jury from reaching a non- unanimous verdict on own-conduct murder that would have rendered defendant ineligible for the death penalty. Thus, defendant maintains that the sequential jury instructions improperly coerced the jury into reaching a death-eligible verdict.

After explaining the meaning of purposeful or knowing murder, the court instructed the jurors that if they found defendant guilty of murdering either Leon Mitchell or Barrington McLean, or both, they were then to consider whether he did so by his own conduct. The court explained

The phrase by his own conduct means that Daron Josephs caused the death or serious bodily injury resulting in the death of the decedents in either of two ways. One, that Daron Josephs inflicted bullet wounds which caused the death or serious bodily injury resulting in the death of the decedents McLean and/or Mitchell or inflicted a combination of bullet wounds or blunt instrument blows to the head which caused the death or serious bodily injury resulting in the death of McLean. Or, two, that Daron Josephs along with Hugh Josephs inflicted bullet wounds upon Leon Mitchell or inflicted bullet wounds or combined bullet wounds and blunt force wounds upon the head of Barrington McLean which caused the death or serious bodily injury resulting in the death of one or more of the decedents. And when he did so it was Daron Josephs' purpose that the decedents or either of them should die or suffer serious bodily injury by his own conduct. Or he was aware that it was practically certain that his conduct would cause death or serious bodily injury. If you find that the death of the decedents or the serious bodily injury resulting in the death of the decedent was caused by a combination of wounds inflicted either by Daron Josephs and Hugh Josephs, Jr., acting in concert, and you further find that Daron Josephs when he inflicted those wounds had the purpose to kill or cause serious bodily injury or that he knew that the wounds he inflicted were practically certain to lead to death or serious bodily injury, then you may find Daron Josephs guilty of murder by his own conduct.

The relevant inquiry is whether or not Daron Josephs actively and directly participated in the homicidal act; that is, in the infliction of the injuries from which the victims died or from which they suffered serious bodily injury resulting in death.

If you find that Daron Josephs merely inflicted some minor injuries to the decedents and those wounds did not contribute in any substantial way to the death of the victims, then his acts could not be said to have caused the death of the decedents by his conduct.

The court then discussed the application of the concept of unanimity to own-conduct murder:

In this case there are a number of different legal routes by which you could arrive at a conviction. The routes chosen, if there is a conviction, depends on what you find the facts to be. Generally we ask a jury only if a defendant has been found guilty of a crime. We do not inquire if the jury considers the defendant who they convict to be what we call a principal or an accomplice or a co- conspirator.

However, the practice is different when, as here, one of the charges is murder. If the jury convicts the defendant of murder in such a case, I then must ask if the jury unanimously and beyond a reasonable doubt finds two things. One, that the defendant committed a purposeful or knowing murder; and, two, that the defendant committed the fatal act by his own conduct . . . .

It is permissible for a jury to find a person guilty of a murder if some jurors see the person as the principal while others see him as an accomplice. What is essential is that each juror be satisfied in his or her own mind that all of the elements necessary to establish guilt under the theory upon which the individual juror convicts has been proven beyond a reasonable doubt.

A conviction of purposeful or knowing murder or any other kind of murder under these circumstances is perfectly proper. However, under our law a person is guilty of murder by his own conduct only if all 12 jurors find unanimously and beyond a reasonable doubt or both, one, that the defendant committed a purposeful and knowing murder; and, two, that he did so as a principal, not as an accomplice.

And you'll be given a verdict sheet which is designed to capture that information. And if I might make a suggestion. You may find it convenient to first decide if all 12 jurors agree whether the defendant is guilty of murder. If the jury does so agree, then you should decide if the jurors individually and unanimously agree that it has been proven beyond a reasonable doubt that the defendant committed a purposeful or knowing murder as a principal; that is, by his own conduct. However, the order in which you consider these questions in your deliberations is entirely your own decision.

During a recess, counsel for defendant objected to the court's instructions on the ground that there was no evidence in the record to support a finding that defendant committed murder by his own conduct without the assistance of Junior. In addition, defendant contended that the court's charge on own- conduct murder was "premature" because the jurors had not been told the meaning of accomplice liability and so might presume that it applied to any "concerted action" between multiple defendants. Counsel requested that the court clarify for the jury that the "first issue before them . . . is to determine whether Daron Josephs is guilty of murder; whether it's by direct responsibility as a principal or as [an] accomplice and that it doesn't matter if they unanimously agree on the theory to make that determination." Noting counsel's objection, the court stated that it would explain accomplice liability to the jury at a later point and that its charge would be clear when read as a whole.

Upon return from break, the court instructed the jurors that whether Daron Josephs was a principal depends upon your answers to certain questions.

Let's take Barrington McLean first. First, did Daron Josephs shoot or wound Barrington McLean with a blunt instrument? Two, if so, what did he have in mind when he shot and/or wounded Barrington McLean with this instrument? Three, did the wounds he inflicted contribute in some substantial way to the death of Barrington McLean or cause serious bodily injuries that resulted in his death? As to Leon Mitchell, ask yourselves, one, did Daron Josephs shoot Leon Mitchell? Two, if so, what did he have in mind when he shot Leon Mitchell? Three, did the wounds he inflicted contribute in any substantial way to Mr. Mitchell's death or cause serious bodily injuries that resulted in his death? Now, if you're satisfied beyond a reasonable doubt that the answers to the first question as to any of the decedents is in the affirmative, you'll then address his state of mind when he did so. Was his purpose to kill or inflict serious bodily injury that resulted in death? Was he aware that his conduct was practically certain to cause death? You then ask the question if the wounds inflicted by Daron Josephs contributed in some substantial way to the death of the decedents. If Daron Josephs did inflict wounds which contributed to the death of the decedents in a substantial way, and he did so with the purpose to kill or to inflict serious bodily injuries resulting in death, or with knowledge that his conduct was practically certain to kill, he's guilty of a purposeful and knowing murder as a principal; that is, the acts would be by his own conduct.

The court then instructed the jurors that if they found that defendant injured the victims but did not do so purposefully or knowingly, it would then have to determine whether he ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.