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State v. Toliver

June 21, 2004

STATE OF NEW JERSEY, (A-93-03) PLAINTIFF-RESPONDENT,
v.
MARCUS TOLIVER, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, (A-94-03) PLAINTIFF-RESPONDENT,
v.
RYSHAONE THOMAS, DEFENDANT-APPELLANT.



On certification to the Superior Court, Law Division, Camden County.

Chief Justice Poritz and Justices Long, Verniero, LaVECCHIA, Zazzali, Albin, and Wallace join in this opinion.

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).

In State v. Steven Fortin, the Supreme Court held that in death penalty, the New Jersey Constitution requires that"aggravating factors," as a functional equivalent of the elements of the crime of capital murder, must be submitted to a grand jury and included in the indictment. The within matters present procedural questions that have arisen in the implementation of Fortin.

A Camden County grand jury has indicted Ryshaone Thomas and Marcus Toliver for the purposeful or knowing murder of Christine Eberle. The State served defendants with a Notice of Aggravating Factors, which included allegations that they committed the murder to escape detection and while engaged in committing another felony.

After the decision in Fortin was filed, Thomas and Toliver moved before the trial court for dismissal of the aggravating factors and for death qualification of the grand jurors. Further, defendants argued that their attorneys should be involved in the process, allowing the presentation of mitigating evidence to the grand jury and requiring the trial court to question each grand juror on the issue of whether the extensive media coverage of this case affected his or her ability to be fair and impartial.

Before the trial court could act on the applications, the Supreme Court certified the case directly and accelerated the scheduling of argument.

HELD Given the specific and limited role of a grand jury, the"death qualification" of grand jurors is unwarranted. Mitigating evidence should not be put to a grand jury. The State's obligation to present exculpatory evidence under State v. Hogan includes evidence known to the State that directly negates an aggravating factor.

1. Prosecutors are not obligated to inform grand jurors that they are sitting on a capital case. The purposes of the grand jury are to"determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." Unlike capital sentencing-phase jurors, grand jurors do not assess the moral culpability of a defendant by weighing aggravating and mitigating factors. They do not evaluate the relative strengths and weaknesses of the parties' evidence, as guilt-phase jurors do. Most important, they are not concerned with the sentencing consequences of their determination, but only with whether there is probable cause to indict the defendant charged by the prosecutor. (pp. 3-4)

2. Although defendants have withdrawn their motion in respect of mitigating evidence being presented to a grand jury, the Court has elected to express its opinion to clarify the requirements of Fortin. Mitigating evidence should not be put to the grand jury. Of course, a prosecutor has a duty under State v. Hogan to present evidence that is so clearly exculpatory that it would induce a rational grand juror to conclude that the State had not made out a prima facie case against the accused. In that context, the Court agrees with the Attorney General's observation that the State's obligation under Hogan would include the presentation to the grand jury of evidence known to the State that directly negates an aggravating factor. (pp. 4-5)

3. Supreme Court Rule 3:7-3(b) has historically required the State to present to the grand jury the"triggers" that a trial jury must find to advance a efendant to the capital sentencing phase of the proceedings. For purposes of the state constitutional right to a grand jury presentation, Fortin states that those triggers, such as murder by one's"own conduct," are now elements of capital murder. In practice, then, the only change wrought by Fortin is that the prosecutor must present to the grand jury the aggravating factors on which the State intends to rely in seeking the death penalty. (p. 5)

4. The Attorney General has suggested procedures for use in presenting potential capital cases to grand juries. The Court is referring those suggestions to its Trial Court Judges Committee on Capital Causes for a report and recommendations. (p. 5)

The matters are REMANDED to the trial court for further proceedings consistent with the Court's opinion.

CHIEF JUSTICE PORITZ and ASSOCIATE JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE ...


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