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State v. Nelson

July 30, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LESLIE ANN NELSON, 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).

Defendant, Leslie Nelson, formerly known as Glenn Nelson, pled guilty to the killing of two police officers. She appeals from a penalty-phase retrial imposing the death penalty.

On April 20, 1995, Haddon Heights police detective Richard Norcross and Investigator John McLaughlin of the Camden County Prosecutor's Office, accompanied by another detective and a DYFS investigator, went to the house Nelson shared with her parents to investigate a complaint against Nelson. During the visit, Nelson admitted that she had a gun in the closet of the bedroom, but she refused to produce it. Norcross and McLaughlin returned to the house in the afternoon with a warrant to search Nelson's bedroom. After Nelson's mother admitted Norcross and McLaughlin into the house, Nelson opened fire with an AK-47 assault rifle. McLaughlin was killed and Norcross seriously wounded.

Nelson then began firing from a second story window on other police officers positioned around the home. Nelson shot and killed Officer John Norcross, Detective Norcross' brother, during that exchange. Nelson surrendered the next morning after extended negotiations with police.

Nelson was indicted and charged with two counts of purposeful or knowing murder by her own conduct, attempted murder, and weapons offenses. She pled guilty to the two capital murder counts and aggravated assault. After Nelson's first penalty trial, she was sentenced to life imprisonment for the murder of Investigator McLaughlin, and to death for the murder of Officer John Norcross. However, this Court vacated Nelson's death sentence due to the State's failure to turn over evidence favorable to the defense. Specifically, the State failed to alert Nelson that the State's key witness, Detective Richard Norcross, had filed a civil complaint against county and municipal authorities, alleging that they acted in a palpably unreasonable manner by not providing proper training and instruction to police officers. Because a theme of Nelson's defense was that police were inadequately trained to handle situations involving mentally ill and emotionally disturbed people, this Court deemed Norcross' complaint material evidence in support of Nelson's mitigation case.

In Nelson's penalty retrial, the jury was charged with imposing a sentence for the murder of Officer John Norcross only. The jury unanimously found two aggravating factors: the murder was committed for the purpose of escaping detection, punishment, or confinement; and the murder occurred while officers were engaged in the performance of their official duties. The jury rejected as an aggravating factor that Nelson murdered Officer Norcross in the course of murdering Investigator McLaughlin by a vote of 11 to 1 in favor of that factor. (Under this Court's jurisprudence, a jury must find an aggravating factor unanimously before that factor can be considered in the sentencing determination.) The jury unanimously found three mitigating factors: that Nelson pled guilty and accepted responsibility; Nelson gave up any right to parole; and Nelson was making a positive contribution to pris on life. Eleven jurors also found that Nelson had a long history of mental illness or psychological problems that contributed to her conduct, and some jurors also found other mitigating factors. The jury unanimously found that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, and Nelson was sentenced to death.

Nelson's psychological history is relevant to an evaluation of her constitutional argument. Sheila Fairchild, a licensed social worker and the principal investigator for the DYFS unit of the Public Defender's Office, testified for the defense. Her report included the following findings. Nelson was born a biological male in 1957, named Glenn Nelson. His kindergarten teacher reported that he was an emotionally disturbed child. Nelson became increasingly reclusive during his teen years, eliminating all interpersonal relationships except that with his mother.

Nelson's identification with women intensified as his psychological condition deteriorated. In 1984, when he was twenty-seven, Nelson began considering sex reassignment surgery. Nelson traveled to Colorado twice in 1986 to talk to a reassignment doctor, and started taking female hormones.

In the same year, those around Nelson notice his changed behavior. His employer stated that he knew Nelson was disturbed. In addition, Nelson was robbed at knifepoint in Philadelphia, which prompted him to purchase a handgun. In 1987, Nelson was arrested for possession of a weapon and dum-dum bullets, and resisting arrest. A presentence report reveals that Nelson claimed to have "fallen in love" with his gun. Nelson received probation and was ordered to undergo psychological evaluation. Nelson's mother and co-workers noted Nelson's fixation on suicide. In 1988, Nelson's mother found a suicide note indicating that Nelson was sick of life and planning suicide. Nelson was committed involuntarily to a psychiatric facility for nineteen days.

The following year, Nelson began preparation for the sex change surgery, but those with whom he consulted voiced concerns about his stability and mental health. Nelson began estrogen treatment, and underwent breast augmentation in 1989. A certified sex therapist found that Nelson's severe psychological problems remained. Nonetheless, Nelson completed the sex change in March 1992.

Nelson encountered severe harassment on returning to work at her warehouse job after the operation. Nelson therefore left the job in 1992 and pursued her desire to become an exotic dancer. Nonetheless, she was rejected for most jobs because of her clumsiness and because customers realized that she had been a male. Nelson's booking agent said she reacted to her dancing failures with depression, which worsened as the rejections continued. In 1993, Nelson began to prostitute herself and started expressing her suicidal intentions to her mother and others.

Nelson's medical health records disclose additional facts concerning her condition. After the 1987 arrest for weapon possession, she was diagnosed with atypical depression, possibly schizoid personality disorder and post- traumatic stress disorder. When she was involuntarily committed in 1988, the primary diagnosis was adjustment disorder with depressed mood and mixed personality disorder with schizoid, borderline, and antisocial traits. The prognosis was guarded because Nelson had exhibited little insight and no interest in follow-up. A sex therapist interviewed Nelson in preparation for surgery, concluding she would be a high risk of suicide if surgery were denied. She also believed that Nelson might still present a high risk after surgery if her expectations were not met. The transgender program at Pennsylvania Hospital rejected Nelson when a personality test revealed she appeared to be suffering from a depressive disorder.

A psychiatrist for the defense testified that Nelson suffered from long-standing depression, sexual identity disturbance, and acute adjustment disorder. He testified that Nelson's mental illness and psychological problems contributed to her conduct on the day of the murders. The defense psychiatrist concluded that the threat of taking away Nelson's guns and of her going to jail, where she could not keep up her appearance as a woman, caused an emotional breakdown that affected Nelson's ability to reason.

The opinions of the State's mental health expert did not significantly diverge from those of Nelson's expert. The most important distinction was that the State's expert believed that the murders of Investigator McLaughlin and Office Norcross were separated by a twelve-minute cooling off period. That testimony was important to the State's case because it attempted justified to the jury the harsher sentence of death for the Norcross murder.

HELD: The special verdict sheet's ambiguous wording, coupled with the jury's confused response to a special verdict instruction and the trial court's failure to obtain clarification, demonstrates trial court error that cannot be considered harmless. The error suggests the possibility that in weighing the aggravating and mitigating factors, some jurors might have considered an aggravating factor that was not found unanimously by all twelve jurors.

1. Nelson maintains that the trial court erred by failing to instruct the jury adequately and clearly that in order for the jury to consider a specific aggravating factor in the weighing of aggravating and mitigating factors to determine the sentence, the aggravating factor had to be found unanimously. The trial court initially gave a complete and unambiguous instruction on the issue of jury unanimity for the consideration and weighing of an aggravating factor. Nelson's contention is that this instruction was diminished by the trial court's six subsequent references to the standard of proof for an aggravating factor without mentioning the unanimity requirement. The claim is unpersuasive. Applying the tenant that jury instructions must be evaluated as a whole, the Court does not find the jury instructions erroneous. (Pp. 20-31)

2. The need for clear verdict sheet directions in capital cases is no less important than the need for correct and unambiguous jury instructions. The special verdict sheet used here instructs the jury that if they unanimously find "any," "one or more" or "more than one" of the aggravating factors, they are to continue on and consider the mitigating factors, and then weigh the aggravating and mitigating factors. The verdict sheet does not, however, specify that the jury needs to be unanimous regarding a specific aggravator in order to consider it. And, one question on the sheet asks whether any aggravating factor by itself outweighs the mitigating factor, and lists the aggravating factors alleged by the State, followed by spaces marked "yes," and "no." Apparently, the trial court intended for the jury simply to check "yes" or "no." Nonetheless, as to aggravating factor "B," the murder within murder factor, which the jury had not found unanimously, the jury placed the number "1" in the "no" space, and "11" in the "yes" space. By doing so, the jury demonstrated it might not have understood that it was prohibited from considering in the weighing process this aggravating factor. Although the instructions are not erroneous per se, the ambiguous wording, coupled with the jury's confused response and the failure of the trial court to obtain clarification, renders the death verdict unreliable. (Pp. 31-47)

3. The prosecutor implied at several points during summation that the testimony of the defense experts was contrived because they were "partisan" and had an "agenda," while the testimony of the State's expert was above reproach. These statements clearly crossed the line that separates forceful from impermissible closing argument, and require reversal of Nelson's death sentence. (Pp. 47-52)

4. Nelson made additional claims of error, including the following: the exclusion of a civil complaint filed by the wife of Officer John Norcross against the Camden County Prosecutor; the excusal of a potential juror based on her anti-death penalty views; the trial court's right of allocution instruction; and the admission of detailed testimony regarding the shootings and the officers' officers' wounds. The Court finds these additional claims to be without merit. (Pp. 52-75)

The judgment sentencing Nelson to death is REVERSED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

JUSTICE LaVECCHIA has filed a separate opinion, concurring in part and dissenting in part, in which JUSTICE COLEMAN joins, expressing agreement with the majority's holding that reverses Nelson's death sentence based on error in the trial court's handling of ambiguity in the verdict sheet. She dissents, however, from Section III of the majority opinion, which holds that the prosecutor's statements in summation also constitute a basis for reversal.

JUSTICE ZAZZALI also has filed a separate, concurring opinion, in which JUSTICE LONG joins, expressing the view that there is an additional and compelling justification for not executing Nelson - that her execution for crimes that are inextricably bound to her mental illness violates our State Constitution's prohibition against cruel and unusual punishment.

JUSTICES STEIN and LONG join in JUSTICE ZAZZALI's opinion. JUSTICE LaVECCHIA has filed a separate opinion, which JUSTICE COLEMAN joins, concurring in Section II of the majority opinion, and dissenting from Section III. JUSTICE ZAZZALI also has filed a separate, concurring opinion, in which JUSTICE LONG joins. CHIEF JUSTICE PORITZ and JUSTICE VERNIERO did not participate.

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

Argued March 12, 2002

Defendant Leslie Nelson, formerly known as Glenn Nelson, pled guilty to the killing of two police officers and to the aggravated assault of a third officer. After her first penalty-phase trial, she was sentenced to life in prison for the murder of Officer John McLaughlin and to death for the murder of Officer John Norcross. This Court vacated defendant's first death sentence because the State withheld evidence that was favorable to the defense and material to the jury's deliberations on the death penalty. State v. Nelson, 155 N.J. 487 (1998). The matter was remanded for a new sentencing trial on the Norcross murder. After the second penalty-phase trial, which is the subject of this appeal, Nelson again received the death penalty. She now appeals to this Court as of right. N.J.S.A. 2C:11-3e.

We find error in the special verdict sheet and in the improper comments made by the prosecution during summation. We therefore reverse the imposition of the death penalty.

I.

A.

Early on the morning of April 20, 1995, Haddon Heights Police Detectives Robert Griffith and Richard Norcross were summoned to defendant's home to assist Investigator John McLaughlin of the Camden County Prosecutor's Office and Carmelo Garcia of the Division of Youth and Family Services (DYFS) in investigating a complaint against defendant. Defendant had been residing in that home with her parents.

Investigators presumed defendant was home because of the presence of her van outside the residence. After initial attempts to contact defendant failed, the two officers requested that a police dispatcher call defendant at home. The dispatcher persuaded defendant to open the front door after telling her the police were there to investigate her van. After the investigators told defendant that they were there to investigate her, defendant appeared "paranoid" and "somewhat afraid." Although defendant initially refused to permit the investigators into the home and communicated with them only through a screen door, defendant ultimately allowed McLaughlin and Garcia into the home. The meeting between defendant and the investigators lasted approximately ninety minutes. The conversation was "generally calm," until defendant "became emotionally upset," and grew increasingly "paranoid" as the two investigators charged her with wrongdoing and informed her of her rights.

The investigators then requested defendant's consent to search her bedroom. Defendant denied their request. However, defendant's mother allowed the investigators to search the upstairs of the house and defendant permitted the investigators entry into her room. There, they noticed that defendant had been manufacturing homemade bullets. After Investigator McLaughlin engaged defendant in a discussion about guns, defendant admitted to the investigators that she kept a gun in her closet, but would not produce the weapon. As McLaughlin and Garcia exited the home, defendant asked if they planned on returning. After McLaughlin told defendant that he had to check with his superiors, defendant indicated that she would kill herself if taken into custody.

On returning to the Haddon Heights police station, Detective Richard Norcross sought a warrant to search defendant's bedroom for firearms. Specifically, Detective Norcross asked for a "no-knock" warrant, which would allow police to execute the warrant without first notifying defendant of their presence. A municipal court judge granted Detective Norcross' request.

At approximately 2:00 p.m. that afternoon, Detective Norcross, Investigator McLaughlin, and four other Haddon Heights police officers arrived at defendant's home. There, McLaughlin decided not to execute the "no-knock" warrant and instead attempted to engage defendant in conversation. Defendant's mother answered the door and told defendant that Investigator McLaughlin had returned, to which defendant answered, "What the f--- does he want?" McLaughlin told defendant that he had a few more questions to ask her. From the top of the second floor stairs, defendant asked if the officers had a warrant.

McLaughlin responded that he had a search warrant for her bedroom and not an arrest warrant.

Detective Norcross testified that at this point he heard defendant running upstairs and saw McLaughlin run up the staircase, one hand gripping his weapon. As McLaughlin reached the top of the stairs, defendant fired an AK-47 assault rifle at McLaughlin. McLaughlin fell down the stairs, fatally wounded. Detective Norcross returned defendant's fire, but defendant shot Norcross in the hand, arm, and twice in the chest. As Norcross slid down the stairs, defendant leaned over the railing and shot Norcross in the leg. When defendant began to follow the wounded officer down the stairs, her mother intervened and pleaded with defendant to stop shooting. During that exchange, Detective Norcross was able to escape through a side door.

From a second floor window, defendant resumed firing on police positioned around the home. During that firefight, defendant shot and killed Officer John Norcross, Detective Norcross' brother and one of three officers who had arrived at the scene after the initial gunfire. After Officer Norcross was shot, a police dispatcher telephoned defendant and asked her to stop shooting. Defendant told the dispatcher to "[t]ell them to stop shooting at me. I don't know why they're shooting." Defendant also told him that she did not want her room searched or to be taken to jail.

The shooting finally ended around 2:30 p.m. After extended negotiations with police, defendant surrendered at 4:00 the next morning.

B.

Nelson was indicted and charged with two counts of purposeful or knowing murder by her own conduct, contrary to N.J.S.A. 2C:11-3a(1) and/or (2); eight counts of first-degree attempted murder, contrary to N.J.S.A. 2C:5-1; third-degree unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5f; and second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. Defendant pled guilty to the two capital murder counts and to the second-degree aggravated assault of Detective Richard Norcross.

After defendant's first penalty trial, she was sentenced to life imprisonment for the murder of Investigator McLaughlin, with thirty years of parole ineligibility, and to death for the murder of Officer John Norcross. However, this Court vacated Nelson's death sentence due to a Brady violation. Nelson, supra, 155 N.J. at 501; See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963) (holding that prosecution may not withhold any favorable, material evidence from a criminal defendant). Specifically, the State's failure to alert defendant to Detective Richard Norcross' civil complaint against county and municipal authorities required a retrial of defendant's sentence. A main theme of Nelson's defense was her "claim that the police were inadequately trained to handle situations involving mentally-ill and emotionally-disturbed people who are armed and dangerous." Nelson, supra, 155 N.J. at 517 (Handler, J., concurring and dissenting). Because Detective Norcross, the "State's key witness," Nelson, supra, 155 N.J. at 500, alleged that the authorities "acted in a 'palpably unreasonable' manner in 'failing to provide proper training and instruction to ensure the safety of the Haddon Heights Police Officers' who served the search warrant on defendant," id. at 496-97, we held that his complaint was material evidence in support of defendant's mitigation case.

Defendant's second penalty trial took place in Camden County in March 2001. The second penalty trial jury was charged with imposing a sentence for the murder of Officer John Norcross only. At that trial, the jury unanimously found two aggravating factors present: the murder was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement for the unlawful possession of a firearm (the 'escape detection' factor); and the murder occurred while the officers were engaged in the performance of their official duties (the 'public servant' factor). The jury rejected the "other murder" factor, that is, that defendant murdered Officer Norcross in the course of murdering Officer McLaughlin, by a vote of 11 to 1 in favor of that factor. With regard to mitigating factors, the jurors unanimously found three mitigating factors: 1) defendant had pled guilty and had accepted responsibility; 2) defendant had given up any right to parole; and 3) defendant was making a positive contribution to prison life. Additionally, eleven jurors found that Nelson had a long history of mental illness or psychological problems that contributed to her conduct; eight jurors found that defendant's psychological or psychiatric make-up made her susceptible to an emotional breakdown and loss of judgment and reason; four jurors determined that inadequate training provided by law enforcement officers contributed to defendant's crimes; and four jurors found that Nelson's actions were triggered, in part, by the conduct of law enforcement. The jury unanimously found that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, and the trial court accordingly sentenced defendant to death. This appeal followed.

C.

Because defendant's psychological history is relevant to an evaluation of defendant's constitutionality argument, we set forth the history of defendant's mental illness in detail.

1. Defendant's Social History

Sheila Fairchild Sheila Fairchild is a licensed social worker and the principal investigator for the DYFS unit of the Public Defender's Office, and testified on behalf of the defense. She interviewed defendant on eight separate occasions for a total of twenty-eight hours. Fairchild compiled a social history based on her interviews with defendant and thirty-five other individuals involved in defendant's life, including family members. Fairchild's report included the following findings.

In 1957, defendant was born a biological male, named Glenn Nelson, and was the second of four children. *fn1 Defendant's mother said that defendant continuously cried every day for approximately ten weeks when he started kindergarten. Defendant's kindergarten teacher reported that he was an emotionally disturbed child. During defendant's teen years, Nelson became increasingly reclusive, eliminating all interpersonal relationships in his life except that with his mother. One childhood friend said that he "went into a shell as high school approached," and defendant's brother called him "hermit."

He had a problem with bed-wetting, for which his father nicknamed him "Uriney". To stop the bed-wetting, defendant stated that he would tie a string around his penis and put plastic wrap over it. Mocking his fear of public restrooms, his father also called him "Mabel." Defendant was extremely self-conscious about his appearance and was unhappy about having male genitalia.

Family members stated that defendant became more of a loner, "isolated from the rest of [the family]." In high school, Nelson recalled being constantly picked on. Defendant's high school principal recalled that Nelson usually ate alone in the lunchroom.

Defendant recalled enjoying photos of nude women, fantasizing that he was one of the women in the pictures. His identification with women intensified as his psychological condition deteriorated. Defendant began shaving his legs and rummaging through Goodwill bins to find ladies' underwear, which he would put on when he got home. By the time he was twenty-six, he could no longer picture himself as a male. One year later in 1984, Nelson began thinking about sex reassignment surgery after reading about a doctor who performed that surgery. Defendant traveled to Colorado twice in 1986 to talk to a sex reassignment doctor, Dr. Stanley Biber. The doctor advised defendant to start taking female hormones.

In that same year, those around Nelson had noticed his changed behavior. He began wearing army fatigues to his job at an auto-parts warehouse. His employer stated, "I knew he was disturbed." That year defendant also was robbed at knife-point in Philadelphia, which prompted him to purchase a handgun.

In 1987, defendant was arrested for possession of a weapon and dum-dum bullets and resisting arrest. The presentence report indicated that defendant stated that he "fell in love" with his gun. Defendant received probation and was ordered to undergo psychological evaluation.

Defendant's co-workers noted his fixation on suicide. Defendant's former manager recalled him as an eccentric person obsessed with suicide, and a supervisor at a later job stated that Nelson spoke constantly about suicide. In 1988, defendant's mother found a suicide note that stated that "he was sick of his life and he decided to find out if death had anything better to offer." Subsequently, defendant was committed involuntarily to a Camden County psychiatric facility for nineteen days.

The following year Nelson began preparation for the sex change surgery, but the persons with whom he consulted voiced concerns about his mental health. The electrolysis technician felt that defendant was "unstable" and referred him to a specialist in gender counseling. Defendant applied for sexual reassignment surgery in 1989 and began attending transsexual support groups. He began to see a certified sex therapist, Dr. Barbara Anderson, to fulfill the counseling requirement for surgery. He also began estrogen treatment. In 1990, defendant told Dr. Anderson that he felt like a "big empty eggshell," and that he wanted to look like a woman, but not be a woman. Shortly thereafter, defendant underwent breast augmentation surgery. Despite being alienated by family members, defendant appeared happier. However, Dr. Anderson concluded that defendant's severe psychological problems remained. Even though he did not feel like a woman trapped in a man's body, which according to Dr. Anderson is how sex-change candidates should feel, defendant completed the sex change in March 1992.

Nelson encountered severe harassment on returning to her warehouse job after her sex change operation. Specifically, the warehouse's officer manager stated that the other employees "avoided Leslie whenever possible, ridiculed her behind her back[,] and the really bold and curious ones would ask her questions about the operations and one even asked Leslie if he could feel her breast implants." Defendant left that job in May 1992 and pursued her desire to become an exotic dancer. She was hired by an organization that contracted with go-go bars. However, when she was sent to dance, customers would reject her because of her clumsiness and their realization that she had been a male. Her failures as an exotic dancer continued through the next few years, as she received "countless rejections." Defendant's booking agent said she reacted to her dancing failures with depression, which worsened as Nelson continued to fail as an exotic dancer.

In 1993, defendant began to prostitute herself. She wrote another suicide note to her mother, stating she was tired of living and that it would have been better if she had never been born. She said she even felt like a failure at suicide because she could not work up the courage to kill herself. In 1995, she wrote a suicide note to a married man who had been a customer, confessing to him that she was a transsexual. She wrote that she had felt suicidal for a long time, that she was filled with self-hatred, and that she did not see any hope for the future. 2. Defendant's Medical Records Defendant's mental health records disclose additional facts concerning her condition.

Defendant was counseled at a community health center after her 1987 arrest for weapon possession. Defendant stated that after her mugging she had become "increasingly paranoid about getting mugged again," and that she had been suicidal for the past year. The interviewing clinician's diagnosis was atypical depression, possibly schizoid personality disorder and post-traumatic stress disorder. Documents also indicate that defendant had "profound problems with low self-esteem," "severe problems with social withdrawal, obsessive thoughts, paranoid, suspicious hostility," and "problems of modest proportions [with] dependency, delusions, anxiety, tension, inappropriate affect, relationship with siblings, interaction with peer groups, deals with conflict and stress, [and] judgment." Treatment notes also indicate that defendant said she had experienced suicidal ideation ever since she was a child. However, some notes indicate that defendant had "no idea of suicide or homicide" and "no future plans for himself."

When defendant was involuntarily committed to the Camden County psychiatric facility in 1988, the primary diagnosis was adjustment disorder with depressed mood and mixed personality disorder with schizoid, borderline, and antisocial traits. However, the prognosis was guarded because defendant had exhibited "little insight and no interest in follow-up." In the "social discharge summary," a psychiatric social worker wrote that "it [was] quite conceivable that [defendant] could become depressed seriously enough to injure himself or others," and recommended further psychotherapy.

Another psychological evaluation by Dr. Philip Slonim indicated that Nelson manifested "[m]arked schizoid tendencies. In that evaluation, he stated the only thing defendant said she would bring with her on a desert island was a gun for target practice.

Dr. Barbara Anderson interviewed defendant in preparation for his surgery. She said that defendant would be a high risk of suicide if denied surgery. Nevertheless, Dr. Anderson believed that defendant might still present a high risk after surgery if his expectations were not met. Anderson wrote that defendant was "without the capacity for or appreciation of empathy," and was "solely focused" on becoming a woman, even though he did not feel as if he were a woman trapped in a man's body, feelings generally associated with people who become transsexuals.

Pre-surgery notes from another psychiatrist, Dr. Mobilio, indicated "no evidence of psychosis, no delusions, no hallucinations, no thought disorder, no suicidal or homicidal ideations, and minimal anxiety and depression." Social judgment also was evaluated as "good." There were "no gross deficits in memory, intellectual functioning, attention, or concentration." When defendant applied to the transgender program at Pennsylvania Hospital, the Minnesota Multiphasic Personality Inventory Test indicated that he "appeared to be suffering from a depressive disorder and may receive a diagnosis of dysthemic disorder and major affective disorder." Defendant was rejected by the program. He was again diagnosed with dysthemia and adjustment disorder with depressed mood by Dr. Lisa Giunto, the staff psychiatrist at a community mental health center.

Dr. Kenneth Weiss Dr. Weiss, the defense psychiatrist who testified at Nelson's penalty trial, met with defendant five times between 1995 and 1997, and reviewed her records. According to Dr. Weiss, defendant suffered from the following mental illnesses and disorders: (1) dysthemia, a long-standing depression, which was a major depression at the time of the murders; (2) a sexual identity disturbance, hating the gender into which she was born; and (3) adjustment disorder, which is an "acute disturbance . . . that happens in a short period of time due to something happening to an individual." In Nelson's case, Dr. Weiss concluded that Nelson suffered particularly from adjustment disorder during the events prior to the murders.

Dr. Weiss testified that the sixth and seventh factors offered in mitigation were true. As noted, those factors were that defendant has a long history of mental illness and psychological problems that contributed to her conduct on the day of the murders, and that defendant's psychological and psychiatric makeup made her susceptible to an emotional breakdown and loss of judgment and reason on the day of the murders. The threat of taking away her guns and of going to jail, where she could not keep up her appearance as a woman, caused an emotional breakdown that affected Nelson's ability to reason. Weiss believed that she was at the point of suicide on the day of the murders. He stated that the loss of control attributable to Nelson's mental illness that occurred during the McLaughlin murder continued through to the Norcross murder.

Weiss' opinion was that defendant should not have been allowed to have the sex reassignment surgery because she was not a "classic transsexual"; she did not feel like a woman trapped in a man's body. She hated her body and wanted, for some reason, to excite men. He testified that if a person is mentally ill, it calls into question whether that person is choosing surgery for the right reasons. Weiss also testified that defendant treated her guns as if they were her children. The psychiatrist testified that it is typical of those diagnosed with schizoid personality disorder to develop such attachments to inanimate objects. *fn2 Such people are not well-equipped to deal with stress because they lack a mature self-understanding or mature adaptations.

Dr. Weiss estimated that defendant's global functioning at the time of the murders was at "about forty out of a hundred," which he described as "basically a failing grade . . . in living."

Dr. Robert Sadoff Dr. Sadoff, who testified for the State, met with Nelson in 1997 for approximately two hours and reviewed her psychiatric and medical records. Sadoff agreed "in part" with Nelson's contention in mitigation that she had a long history of psychiatric problems that contributed to her violent conduct.

The signigicant distinction between Sadoff's and Weiss' testimonies was that Sadoff believed that the murders of Investigator McLaughlin and Officer Norcross were separated by a twelve-minute "cooling off" period. Sadoff's testimony was important to the State's case because that testimony attempted to justify to the jury the harsher sentence of death for the Norcross murder, in view of the fact that Nelson had been sentenced to life for murdering Investigator McLaughlin. Although the State was trying to prove that the murder of Norcross was committed in the course of McLaughlin's murder for purposes of establishing the "other murder" aggravating factor, the State relied on Sadoff's opinion to argue that Nelson deserved the more severe sentence for murdering Officer Norcross.

Aside from his "cooling off" theory, Dr. Sadoff's opinions did not significantly diverge from Dr. Weiss'. Sadoff acknowledged that Nelson had various mental disorders. He diagnosed Nelson with a mixed personality disorder that included traits from narcissistic, schizoid, avoidant, and borderline personality disorders. He concurred with Weiss' estimation of Nelson's bizarre attachment to her guns, stating that psychiatrists "could conclude . . . that [Nelson] may have considered [her guns] like her children."

Sadoff disagreed with Weiss' opinion that Nelson was obsessed with suicide. Rather, Sadoff believed that "she had thought about suicide, she had talked about it," but she could not be obsessed because she had "ample opportunity" to end her life. With regard to the effect of Nelson's sex change on her well-being, Sadoff would not label the surgery a disaster; however, he did believe that the operation did not meet Nelson's expectations.

Dr. Sadoff denied that Nelson had a total breakdown in her ability to make judgments. For example, Sadoff cited Nelson's decision to stop firing at Detective Robert Norcross after her mother stepped in between her and the detective. Sadoff's opinion that Nelson did not have a total breakdown in reason and judgment is consistent with the absence of an insanity plea. Significantly, however, Sadoff agreed that "she had an impairment of her judgment at the time because of her condition, which made her more vulnerable to a partial breakdown or an impairment of her judgment more than the average person." Sadoff testified that Nelson's ability to think clearly was impaired [in part] both by her anxiety and her depression." He also agreed that Nelson's fear of going to jail "was above and beyond the normal fear that anyone would have of going to jail . . . because of her condition."

II.

We first consider defendant's claims that error inhered in the instructions to the jury and in the special verdict sheet.

Defendant maintains that the trial court erred by failing to instruct the jury adequately and clearly that in order for the jury to consider a specific aggravating factor in the weighing of aggravating and mitigating factors to determine defendant's sentence, that aggravating factor had to be unanimously found by the jury to be proven beyond a reasonable doubt. To support her claim, defendant points to the jury's responses on the completed verdict sheet which, she asserts, demonstrate that the jury failed to understand the unanimity requirement for the consideration of an aggravating factor during the weighing process. Accordingly, defendant claims that the trial court committed reversible error and her death sentence should be vacated. The State counters that the trial court correctly instructed the jurors multiple times on the unanimity requirement for aggravating factors, and that the verdict sheet does not show that the jury misunderstood the instructions. Moreover, the State claims, any possible error in the instructions was harmless.

At the sentencing trial, the State proffered three aggravating factors: (A) murder committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another, N.J.S.A. 2C:11-3c(4)(f); (B) murder while engaged in the commission of another murder, N.J.S.A. 2C:11-3c(4)(g); and (C) murder of a public servant, N.J.S.A. 2C:11-3c(4)(h). The jury unanimously found that aggravating factors A and C had been proven beyond a reasonable doubt. However, only eleven jurors found aggravating factor B - murder while engaged in the commission of another murder - to have been proven beyond a reasonable doubt. Because New Jersey law requires a capital sentencing jury to disregard an aggravating factor if that factor is not found unanimously by the jury, State v. Koskovich, 168 N.J. 448, 524 (2001), the jurors were authorized to weigh only aggravating factors A and C against the mitigating factors to determine the appropriate punishment. Id. at 519. Defendant concedes that the first reference made by the court to the unanimity requirement for the consideration and weighing of an aggravating factor was correct. After introducing the concepts of aggravating and mitigating factors to the jury, and explaining that aggravating factors had to be proven beyond a reasonable doubt before being considered, the court instructed the jury as follows:

In order for the jury to find any aggravating factor, all 12 deliberating jurors must agree that the State has proven the aggravating factor beyond a reasonable doubt. In other words, with respect to the finding of aggravating factor [sic], the jury must be unanimous that an aggravating factor has been proven before it may be considered. If one or more jurors decide that the State has not proven an aggravating factor or aggravating factors beyond a reasonable doubt, then no juror may consider the alleged aggravating factor or aggravating factors in the weighing process. Rather, you're to disregard any alleged aggravating factor which all 12 jurors do not find was proven beyond a reasonable doubt. And you are to further disregard any evidence relating to such an alleged aggravating factor.

Defendant acknowledges that this instruction properly conveyed that no juror could consider and weigh a specific aggravating factor unless all twelve jurors had unanimously found that factor to be proven beyond a reasonable doubt. However, defendant alleges that by the time the trial court finally provided that correct instruction to the jury, the court previously had mentioned the "beyond a reasonable doubt" standard of proof for an aggravating factor six times without reference to the unanimity requirement. The State responds that the court's emphasis on the "beyond a reasonable doubt" standard without mentioning unanimity early in the instructions is of no consequence because there is no conflict between that standard and the unanimity requirement.

Defendant claims that the correct instruction on the unanimity requirement set forth above was the only accurate instruction that the trial court gave on the issue. Defendant cites to the following instruction as one that purported to include the unanimity requirement for the consideration of an aggravator but did not: "If you have unanimously found beyond a reasonable doubt that one or more aggravating factors exist, then you will consider the mitigating evidence." Defendant asserts that the unanimity requirement mentioned in that portion of the instruction does not convey unambiguously that a specific aggravating factor must be found unanimously in order to be considered in the balancing process. The jury could unanimously agree that the State had proven "one or more" aggravating factors, and yet still not have been aware that the only aggravators that each juror could consider were the ones unanimously found.

Next, defendant contends that the trial court's omission of the unanimity requirement for the consideration of an aggravator in its "ultimate instruction" was particularly egregious because that instruction was given at "perhaps the single most crucial point" in the jury charges. This "ultimate instruction" provided:

If you do not unanimously find that the State had proven one or more aggravating factors, your deliberations have concluded and the defendant will be sentenced to life in prison without the possibility of parole. If you unanimously find that the State has proven beyond a reasonable doubt one or more aggravating factors, then you must weigh the aggravating factor or factors against any mitigating factors which you've found. [(Emphasis added).]

Defendant claims that this "ultimate instruction" is deficient for the same reason as the instruction previously discussed, Supra at ___ (slip op. at ___).

The State alleges that the court did reiterate the unanimity requirement during both instructions deemed ambiguous by defendant. Further, it notes the following instruction, immediately preceding the "ultimate instruction," as evidence that the trial court correctly instructed the jurors multiple times on the unanimity requirement for aggravating factors:

The evidence relating to mitigating factors should be fully discussed by the jury. To the extent possible, you should attempt to reach an agreement on the question of whether a particular mitigating factor does or does not exist. However, the law does not require unanimity with respect to the finding of mitigating factors. Therefore, each juror must individually determine whether or not each mitigating factor exists and each juror must individually decide whether any aggravating factor or aggravating factors unanimously found outweigh beyond a reasonable doubt the mitigating factor or mitigating factors that the juror has found to be present. [(Emphasis added).]

In further support of her claim that the court's instructions were inadequate, defendant then points to the jury's response to the "special verdict" portion of the verdict sheet as proof of the actual prejudice caused by the jury instructions. The verdict sheet stated:

If you have unanimously found more than one aggravating factor present, then indicate as to each factor whether it, by itself, outweighs the mitigating factors beyond a reasonable doubt [Emphasis added.]

The jury responded by inserting the following:

Aggravating Factor "a" No (0) Yes (12) Aggravating Factor "b" No (1) Yes (11) Aggravating Factor "c" No (0) Yes (12) According to defendant, because the jury indicated that eleven jurors found that aggravating factor B outweighed the mitigating factors by itself, it is likely that the jurors also considered factor B in determining whether the aggravating factors outweighed the mitigating factors. Thus, the trial court's inadequate jury instructions resulted in the jury's failure to understand that it was not to weigh an aggravating factor unless that factor had been unanimously found.

The State counters that the verdict sheet reinforces its position that the trial court made repeated reference to the unanimity requirement. For example, the State notes that the first question on the verdict sheet, labeled "AGGRAVATING FACTORS," asked the jury: "Do you unanimously find beyond a reasonable doubt that any of the following aggravating factors exist[.]" As further proof, the State highlights the following directive on the verdict sheet: "If you have unanimously found that one or more aggravating factors were present, go to number "2" below," number "2" being the portion of the verdict sheet that asks if the jury has found any mitigating factors. Finally, the State argues that the special verdict directive itself is substantiation for its claim. It states: "If you have unanimously found more than one aggravating factor present, then indicate as to each factor whether it, by itself, outweighs the mitigating factors beyond a reasonable doubt." However, the State concedes that the wording of the special verdict section was "inartful."

The State further asserts that the fact that the jurors responded to the question whether they found aggravating factor B to outweigh the mitigators by itself does not demonstrate that the jury misunderstood the unanimity requirement. The jurors were simply saying that, if asked, eleven would have also found factor B to outweigh the mitigators. In any event, the State maintains, even if eleven of the jurors did consider aggravating factor B, that it was not plain error - all twelve jurors had found aggravating factors A and C to outweigh the mitigators by themselves, respectively.

For the reasons set forth below, we find that the trial court's jury instructions were not erroneous per se. However, we conclude that the trial court's ambiguous wording of the verdict sheet, in conjunction with the jury's obviously confused response to the special verdict directive, and the trial court's refusal to ask the jury for clarification, demonstrates error. Further, we agree with defendant that this error should be analyzed pursuant to the harmful error standard. Applying that standard, we find that the trial court's error was not harmless.

A.

This Court has stressed repeatedly that "'clear and correct jury instructions are essential for a fair trial.'" Koskovich, supra, 168 N.J. at 507 (quoting State v. Brown, 138 N.J. 481, 522 (1994)). "'A [jury] charge is a road map to guide the jury, and without an appropriate charge, a jury can take a wrong turn in its deliberations.'" Id. at 508 (quoting State v. Martin, 119 N.J. 2, 15 (1990)). In fact, "so critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error." Martin, supra, 119 N.J. at 15. Although the importance of jury instructions in criminal cases is well-established, this Court has "emphasized that jury instructions 'are even more crucial in a capital case because of the jury's responsibility to decide whether a defendant shall live or die.'" Koskovich, supra, 168 N.J. at 524 (quoting State v. Bey, 112 N.J. 123, 162 (1988)). It also is well-settled that a reviewing court must evaluate a challenged jury instruction in the context of the entire charge to determine whether the challenged language was misleading or ambiguous, State v. Simon, 161 N.J. 416, 477 (1999); State v. Clausell, 121 N.J. 298, 330 (1990), and "[t]here can be no assumption that the jury did not faithfully follow the [court's] admonition." State v. Manley, 54 N.J. 259, 271 (1969).

As noted, we do not find the trial court's jury instructions to be erroneous per se. Central to our conclusion is the fact that the trial court first gave a complete and unambiguous instruction on the issue of jury unanimity for the consideration and weighing of an aggravating factor. That instruction unambiguously stated that the jury must find unanimously that an aggravating factor has been proven beyond a reasonable doubt before that factor may be considered and weighed against any mitigating factors. Moreover, the instruction conveyed that if one or more jurors decided that the State had not proven an aggravating factor beyond a reasonable doubt, then no juror could consider that aggravating factor. Supra at _____ (slip op. at ____).

As for defendant's contention that this specific instruction was diminished by the trial court's referencing the standard of proof for an aggravating factor six times before mentioning the unanimity requirement, that claim is unpersuasive. There is no conflict between the "beyond a reasonable doubt" standard of proof for an aggravating factor and the unanimity requirement for an aggravating factor.

Also supporting our holding that the jury charge by itself was not erroneous was the trial court's statement to the jury that "each juror must individually decide whether any aggravating factor or aggravating factors unanimously found outweigh beyond a reasonable doubt the mitigating factor or mitigating factors that the juror has found to be present." Supra at ____ (slip op. at ___). That instruction, although not sufficient on its own to properly inform the jury of the unanimity requirement, serves as reinforcement of the complete instruction discussed above.

We now consider those instructions that defendant asserts are ambiguous. The first instruction stated that "[i]f you have unanimously found beyond a reasonable doubt that one or more aggravating factors exist, then you will consider the mitigating evidence." The second is the "ultimate instruction" that states, in pertinent part, "[i]f you unanimously find that the State has proven beyond a reasonable doubt one or more aggravating factors, then you must weigh the aggravating factor or factors against any mitigating factor or factors which you've found." The unanimity requirement noted in those intructions does not unambiguously convey that a specific aggravating factor needs to be found unanimously in order to be considered in the balancing process. The jury can unanimously agree that the State has proven "one or more" aggravating factors, and yet still not be aware that the only aggravators that each juror may consider are the ones unanimously found. Some jurors found two aggravators; some found three. Therefore, they unanimously found that the State proved "one or more" aggravating factors, and those two instructions did not specifically inform the jurors who found three aggravators that they could not consider the non-unanimous aggravator or the evidence supporting it.

However, the instructions also may be interpreted as suggesting exactly what the trial court intended and what the State alleges that they impart - that a specific aggravating factor must be found unanimously in order to be considered in the weighing process.

Each party presents a defensible interpretation of the instructions. One may interpret them as correctly conveying the law; one may interpret them as misstating the law. In view of the clear and comprehensive instruction on the unanimity issue delivered first, and the fact that nothing was said overtly to contradict the instruction, and applying the tenet that we must evaluate jury instructions as a whole, Simon, supra, 161 N.J. at ...


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