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State v. Marshall

July 30, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT O. MARSHALL, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Atlantic 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).

Robert Marshall was convicted for the murder of his wife, Maria Marshall, as an accomplice who arranged for the murder-by-hire. After a separate sentencing proceeding, Marshall was sentenced to death. This appeal is from the trial court's dismissal of Marshall's second petition for post-conviction relief (PCR).

Marshall, a Toms River insurance agent, began an extramarital affair with Sarann Kraushaar, a married woman, in June 1983. As early as December 1983, Marshall mentioned to Kraushaar the idea of killing his wife. In 1984, after making inquiries about hiring an "investigator," Marshall was put in touch with Billy Wayne McKinnon, a former sheriff's officer from Louisiana. Marshall agreed to pay McKinnon $5,000 to meet him in Atlantic City.

McKinnon came to Atlantic City in June 1984 and Marshall offered to pay him $65,000 to kill his wife - the $5,000 he had already paid, $10,000 up front, and $50,000 from the expected insurance proceeds on his wife's life. Marshall gave McKinnon an additional $7,000 and a picture of his wife, and told McKinnon to kill his wife that evening, when Marshall would be present. Marshall believed he would not be considered a suspect because he was an outstanding citizen with influence in the community.

McKinnon did not carry out the murder at that time. Marshall communicated with him on numerous occasions and sent him additional money. McKinnon returned to Atlantic City in July 1984 and met with Marshall, who proposed a second plan for the killing to take place that evening. However, McKinnon did not complete the job that evening, either. Marshall offered McKinnon an extra $15,000 if he would return to New Jersey a third time to do the "job." McKinnon agreed, and met Marshall in September 1984. Together they selected a spot on the Garden State Parkway to carry out the murder and made final plans for the murder. The plan was to make the murder look like a robbery.

Marshall took his wife to a casino under the pretext of an evening of dining and gambling. Marshall met McKinnon outside the casino and told him that he and Maria would be leaving the casino about midnight. As previously arranged with McKinnon, Marshall pulled into a picnic area on the Parkway while his wife was sleeping. Marshall got out of the car under the ruse of needing to repair a flat tire. Marshall was hit on the head as part of the simulated robbery. Maria was shot in the back twice and died immediately.

When police arrived on the scene, Marshall continued to make the murder look like a robbery. The State argued at the trial that Marshall even staged a suicide attempt. Marshall protested his innocence then and continues to do so now. Telephone records traced Marshall to McKinnon, who turned State's evidence. In exchange for a plea to conspiracy to commit murder, McKinnon implicated Marshall and identified a Louisiana man, Larry Thompson, as the triggerman.

Investigation disclosed that during his planning, Marshall had been increasing the insurance policies on his wife's life. At the time of her death, Maria Marshall's life was insured for about $1,400,000. Marshall was paying for his wife's premiums while neglecting his own. The State offered proof that Marshall could have been motivated to kill by rising debts incurred by his business. While amassing the large insurance policies on his wife, Marshall also continued his relationship with Sarann Kraushaar, with whom Marshall intended to live after the murder.

A jury acquitted Thompson of the murder but accepted McKinnon's version of Marshall's role and found Marshall guilty of murder-by-hire. The only aggravating factor submitted to and found by the jury was that Marshall had hired another to commit murder. The two mitigating factors submitted to and found by the jury were that Marshall had no history of criminal activity and the catch-all mitigating factor. Neither party presented additional evidence at the sentencing phase, and therefore each side argued its case in closing arguments. The jury unanimously found beyond a reasonable doubt that the aggravating factor outweighed the mitigating factors, and Marshall was sentenced to death.

This Court upheld Marshall's conviction and death sentence on direct review in Marshall I, and affirmed the proportionality of his death sentence in Marshall II. Marshall filed his first PCR petition in April 1991. The trial court issued an order denying the petition in February 1995. This Court affirmed the denial in Marshall III.

On February 9, 2001, Marshall filed a second PCR petition. Marshall's claim is that the trial court's jury instructions in the penalty trial precluded the jury from rendering a non-unanimous verdict on the imposition of the death sentence. The State filed a motion to dismiss, arguing that the petition was time barred by Rule 3:22-12 (PCR to be filed within five years of sentence) and procedurally barred by Rule 3:22-5 (claim previously adjudicated on the merits). The trial court dismissed the PCR petition as procedurally barred by Rule 3:22-5. The trial court observed that the petition also was filed beyond the time limit imposed by Rule 3:22-12, but did not rely on the time bar when it dismissed the petition.

HELD: The post-conviction relief petition was properly dismissed because it is both procedurally barred and time barred under the New Jersey Court Rules.

1. Under Rule 3:22-5, a petitioner cannot assert as a basis for relief in a PCR petition a claim previously adjudicated on the merits. For the bar to apply, the issue raised must be identical or substantially equivalent to an issue raised previously. Marshall's first PCR petition included over 500 claims of error. One of these, F.18, argued that Marshall was denied his right to a fair and reliable death penalty trial on the basis "that the trial court's penalty phase instructions inadequately explained that a non-unanimous verdict was acceptable." The Court finds that F.18 presented the same argument that Marshall presents here. This Court adjudicated claim F.18 in Marshall III. In that opinion, the Court exhaustively reviewed many of the 500 grounds for reversal raised by Marshall and also summarily rejected without discussion many others that lacked merit. F.18 was one of the latter claims. (Pp. 9-14)

2. The Court's finding that the procedural bar of Rule 3:22-5 precludes consideration of Marshall's petition is dispositive. Nevertheless, the Court addresses the impact of the time constraints imposed by Rule 3:22-12 to provide guidance for future cases. Rule 3:22-12 states that no petition for PCR relief other than one to correct an illegal sentence shall be filed more than five years after rendition of the judgment or sentence unless it alleges facts showing that the delay was due to excusable neglect. Marshall's second PCR petition was filed well beyond the five-year time limit. His explanation for the late filing is that his previous counsel failed to raise the issue in the first PCR petition. This does not justify relief from the time bar because Marshall's previous counsel filed an extensive PCR petition that included, among many other claims, the very issue Marshall now raises regarding the trial court's unanimity charge. (Pp. 14-17)

3. Although Marshall's claim of error is barred because it was previously adjudicated and because it is time barred, the Court briefly addresses the merits of his claim for completeness. In a capital case, a death sentence does not result unless the jury's decision to impose the death sentence is unanimous. If the jury is unable to agree unanimously on a verdict of death, the defendant receives a sentence of life imprisonment. This Court has required that juries be informed of and be free to exercise their statutory option to return a final, non-unanimous verdict resulting in life imprisonment if, after a reasonable period of deliberation, the jurors demonstrate an inability to agree unanimously. Here, the trial court accurately emphasized that a verdict imposing the death sentence must reflect the unanimous decision of the jury. However, it also instructed the jury that a non-unanimous verdict would result in a sentence of imprisonment for life. It would have been preferable for the trial court to have more precisely informed the jury that a non-unanimous verdict was acceptable and that unanimity referred only to a verdict to impose the death sentence. The Court is satisfied that the charge, although not perfect, did not mislead the jury and therefore, did not constitute error. (Pp. 17-27)

The judgment of the Law Division is AFFIRMED.

JUSTICE LONG has filed a separate, dissenting opinion, expressing her view that the majority is mistaken in its application of the procedural bar of Rule 3:22-5; that where a defendant's life is at issue, the time bar of Rule 3:22-5 should be relaxed; and that based on the infirmity in the jury instruction regarding unanimity, Marshall's PCR petition should have been granted and the matter remanded for a new penalty-phase trial.

JUSTICES STEIN, COLEMAN, LaVECCHIA, and ZAZZALI join in CHIEF JUSTICE PORITZ's opinion. JUSTICE LONG has filed a separate, dissenting opinion. JUSTICE VERNIERO did not participate.

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

Argued January 29, 2002

Defendant, Robert Marshall, was convicted for conspiracy to commit the murder of his wife, Maria Marshall, and for murder as an accomplice who arranged for the murder-by-hire of Maria Marshall. Following a separate sentencing proceeding, the trial court sentenced defendant to death, as required by the jury's verdict.

In this second petition for post-conviction relief (PCR), defendant challenges the sentencing portion of his trial and seeks reversal of his death sentence on the ground that the trial court delivered erroneous instructions to the jury. The PCR court dismissed defendant's second PCR petition as procedurally barred, finding that the claim raised in the petition was adjudicated by this Court when it considered defendant's first PCR petition, State v. Marshall, 148 N.J. 89 (1997) (Marshall III). The court also indicated that defendant filed his second PCR petition beyond the five-year time limit but did not dismiss the petition on that ground.

We affirm the trial court's dismissal of defendant's petition. We find that the New Jersey Court Rules (Rules) preclude consideration of defendant's second PCR petition because it is both procedurally barred and time barred. R. 3:22-5; R. 3:22-12. Regardless of those bars, we observe that defendant's claim does not warrant relief for the reason that the trial court's penalty-phase instructions properly informed the jury of its sentencing options.

I.

Defendant was charged in Ocean County Indictment 26-1-85 with the crimes of conspiracy to commit murder, in violation of N.J.S.A. 2C:5-2, and capital murder as an accomplice who procured the commission of the murder by payment or promise of payment, in violation of N.J.S.A. 2C:11-3a(1) or (2). Following a venue change, trial was held in Atlantic County from January 14, 1986 through March 5, 1986. On March 5, 1986, defendant was convicted on both counts.

Our first Marshall opinion contains a detailed account of the evidence adduced at defendant's trial. See State v. Marshall, 123 N.J. 1 (1991) (Marshall I), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). We reproduce here a summary of the facts the jury could have found, excerpted from State v. Marshall, 130 N.J. 109 (1992) (Marshall II), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), and also reproduced in Marshall III, supra.

Defendant, a Toms River insurance agent, began an extramarital affair with Sarann Kraushaar, a married woman, in June 1983. As early as December 1983, defendant mentioned to Kraushaar the idea of killing his wife, Maria. In May 1984, defendant met Robert Cumber of Louisiana and questioned him about hiring an "investigator." Defendant later telephoned Cumber, who referred defendant to Billy Wayne McKinnon, a former sheriff's officer from Louisiana. Defendant agreed to pay McKinnon $5,000 to meet him in Atlantic City, New Jersey.

Defendant met McKinnon at Harrah's Casino in Atlantic City on June 18, 1984, and offered to pay him $65,000 to kill his wife. In addition to the $5,000 that McKinnon had already received, defendant agreed to pay him $10,000 up front and $50,000 from the expected insurance proceeds on his wife's life. At that meeting defendant paid McKinnon $7,000 and gave him a picture of his wife. Defendant told McKinnon to kill her that evening, when defendant would be present. In preparation for the killing, defendant and McKinnon discussed various ways to kill Maria. Defendant believed that he would not be considered a suspect because he was considered an outstanding citizen with influence in the community.

McKinnon did not carry out the murder at that time, but instead returned to Louisiana. Defendant communicated with him on numerous occasions and sent him additional money. Under pressure from defendant to complete the job, McKinnon returned to Atlantic City on July 19, 1984, and met with defendant, who proposed a second plan for the killing to take place that evening. Defendant told McKinnon that he would leave his wife in their car to be executed while defendant went into a restaurant under the pretense of using the bathroom facilities. However, McKinnon did not commit the murder at that time either. Defendant, persistent in his efforts to have his wife killed, offered McKinnon an "extra fifteen" ($15,000) if he would return to New Jersey a third time to do the "job" before Labor Day. McKinnon agreed, and, on September 6, 1984, he and defendant met at a service area parking lot located south of Toms River. Together they selected a spot on the Garden State Parkway to carry out Maria's murder and made final plans for the slaying, which was to occur that evening. The plan was to make the murder look like a robbery.

Defendant took his wife to Harrah's Casino in Atlantic City on the night of September 6, 1984, under the pretext of an evening of dining and gambling. He met McKinnon outside Harrah's at approximately 9:30 p.m. and told him that he and Maria would be leaving the casino at about midnight. Defendant also asked McKinnon for the return of the photographs of Maria and of their home that he had given him in June. As previously arranged with McKinnon, defendant pulled into the Oyster Creek picnic area at milepost seventy-one on the Garden State Parkway at about 12:30 a.m. on September 7. While his wife lay sleeping on the front seat, defendant got out of the car under the ruse of needing to repair a flat tire. Defendant squatted down to prepare himself for being hit on the head as part of the simulated robbery. Maria Marshall was shot in the back twice. She died immediately.

When the police arrived on the scene, defendant continued to make the murder look like a robbery. The State argues that defendant showed no remorse after the crime, but pretended to join his three sons in grieving over the loss of their mother.

The State argued at the trial level that he even staged a suicide attempt. Defendant protested his innocence then and continues to do so now in explanation of his conduct. Defendant's claims of innocence soon unraveled. Telephone records traced him to McKinnon, who turned State's evidence. In exchange for a plea to conspiracy to commit murder, McKinnon implicated Marshall and identified a Louisiana man, Larry Thompson, as the triggerman.

Investigation disclosed that during his planning, defendant had been increasing the insurance policies on his wife's life. At the time of her death, Maria Marshall's life was insured for about $1,400,000. Defendant had been paying his wife's premiums while neglecting his own. Defendant hastened to complete an application for a policy for a home mortgage before the murder. On the last day of her life, Maria underwent a physical examination for that policy. The State offered proof that defendant could have been motivated to kill by rising debts incurred in his business, including a $128,000 home-equity loan and a short-term bank debt in excess of $40,000. While amassing those large insurance policies, defendant also continued his relationship with Sarann Kraushaar, with whom he had intended to live after the murder.

A jury acquitted Thompson of the murder but accepted McKinnon's version of defendant's role and found him guilty of conspiracy to commit his wife's murder and of murder-by-hire. The only aggravating factor submitted to and found by the jury was that defendant had hired another to commit murder. N.J.S.A. 2C:11-3c(4)(e). The two mitigating factors submitted to and found by the jury were that defendant had no history of criminal activity, [N.J.S.A. 2C:11-3]c(5)(f), and the catch-all mitigating factor, [N.J.S.A. 2C:11- 3]c(5)(h). At the time of the offense defendant was forty-four years of age, and had been involved in charitable and community activities. The jury unanimously found beyond a reasonable doubt that the aggravating factor outweighed the mitigating factors. The trial court sentenced defendant to death. [Marshall III, supra, 148 N.J. at 137-38; Marshall II, supra, 130 N.J. at 121-24.]

After defendant was convicted of capital murder in the guilt phase of his trial, a separate sentencing trial was held. See N.J.S.A. 2C:11-3c(1).

At the inception of the sentencing phase, defense counsel indicated that it was defendant's decision, with which counsel concurred, to call no witnesses during the sentencing proceeding. The State also offered no additional evidence, and therefore each side argued its case in closing arguments.

The State presented one aggravating factor at the sentencing phase, that defendant "procured the commission of the offense by payment or promise of payment of anything of pecuniary value," N.J.S.A. 2C:11-3c(4)(e), and relied on the proofs from the guilt phase of the trial to establish beyond a reasonable doubt that defendant had paid money to hire others to kill his wife. The defense presented two mitigating factors: (1) that Marshall had no history of criminal activity, N.J.S.A. 2C:11-3c(5)f; and (2) the catch-all mitigating factor, i.e., "[a]ny other factor relevant to the defendant's character or record or to the circumstances of the offense," N.J.S.A. 2C:11- 3c(5)h. Both sides stipulated that defendant had no history of prior criminal activity. Although no additional evidence was presented in support of the catch-all mitigating factor, in his ...


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