On appeal from the Superior Court, Law Division, Bergen County.
(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 this death penalty case, John Martini appeals from the denial of his third petition for post-conviction relief (PCR).
Martini was convicted of the 1989 kidnapping and murder of Irving Flax. During the penalty phase, Martini urged the jury to find four mitigating factors. The jury unanimously rejected two of these factors, and split 6-6 on the other two factors. As a result of the jury finding unanimously that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, Martini was sentenced to death.
This Court affirmed the conviction and death sentence on direct appeal and on proportionality review. An initial PCR petition was filed over Martini's objection by order of this Court. The petition was denied and this Court affirmed. A second PCR petition was filed, arguing a violation under Ring v. Arizona,
The opinion of the court was delivered by: Justice Wallace, Jr.
Defendant John Martini, Sr., appeals from the denial of his third petition for post-conviction relief. He claims that the trial court erred in instructing the penalty phase jury that, to the extent possible, it should attempt to "reach agreement" on the existence of the mitigating factors, and that his appellate counsel was ineffective for failing to raise that issue on direct appeal. We affirm the judgment denying relief.
Defendant was convicted of the 1989 kidnapping and murder of Irving Flax. The facts of this case are set forth in detail in this Court's decision in State v. Martini, 131 N.J. 176, 191-207 (1993) (Martini I), overruled in part by State v. Fortin, 178 N.J. 540, 646-47 (2004). Suffice it to say, the State presented evidence to prove that defendant and Therese Afdahl kidnapped the victim and demanded ransom money. After the money was paid, defendant shot the victim three times in the back of the head.
The jury found defendant guilty. During the penalty phase, defendant urged the jury to find the following mitigating factors: (1) the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution (e.g., mid-life dysthymia/crisis factor), N.J.S.A. 2C:11-3c(5)(a); (2) the advanced age of defendant, N.J.S.A. 2C:11-3c(5)(c); (3) defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution (e.g., drug addiction factor), N.J.S.A. 2C:11-3c(5)(d); and (4) any other factor that is relevant to defendant's character or background or to the circumstances of the offense (e.g., catch-all factor), N.J.S.A. 2C:11-3c(5)(h). The jury rejected defendant's mental disturbance and diminished capacity mitigating factors by a vote of twelve to zero (12-0) and split six to six (6-6) on finding the age and catch-all mitigating factors. As a result of the jury finding unanimously that the aggravating factors of murder in the course of kidnapping and murder to escape detection outweighed the mitigating factors beyond a reasonable doubt, the trial court sentenced defendant to death.
This Court affirmed defendant's conviction and death sentence on direct appeal, Martini I, supra, 131 N.J. at 324, and on proportionality review, State v. Martini, 139 N.J. 3, 81 (1994) (Martini II). On October 2, 1995, the United States Supreme Court denied Martini's petition for certiorari. Martini v. New Jersey, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed. 2d 137 (1995). Thereafter, the Law Division issued a warrant scheduling defendant's execution for November 15, 1995.
On October 30, 1995, over defendant's objection, the Public Defender applied to the Law Division for permission to pursue post-conviction relief, or for an evidentiary hearing on defendant's competency, and for a stay of execution pending either proceeding. The trial court granted the stay of execution pending the resolution of the petition, appointed independent counsel to represent defendant, and appointed a psychiatrist to examine defendant to determine his competence to waive post-conviction proceedings. Following a competency hearing, the trial court found that defendant was competent to waive post-conviction proceedings and that the Public Defender could not seek such relief on defendant's behalf over his objection. The stay of execution was continued pending review by this Court.
On June 28, 1996, this Court reversed and remanded for a hearing. State v. Martini, 144 N.J. 603, 618 (1996) (Martini III), cert. denied, 519 U.S. 1063, 117 S.Ct. 699, 136 L.Ed. 2d 621 (1997). The Court subsequently directed the trial court to consider the mitigating evidence set forth in the petition. State v. Martini, 148 N.J. 453, 453-54 (1997) (Martini IV). On remand, the trial court rejected defense counsel's claims and denied relief. This Court affirmed on July 27, 1999. State v. Martini, 160 N.J. 248, 255 (1999) (Martini V).
Defendant filed a second post-conviction relief petition raising a Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002), violation because the aggravating factors were not included in the indictment and presented to the grand jury. The trial court denied the motion and defendant appealed. On March 30, 2004, this Court granted the State's motion for summary disposition of defendant's appeal based on Fortin, supra, 178 N.J. at 540. State v. Martini, 179 N.J. 306, 306 (Martini VI), cert. denied, 543 U.S. 850, 125 S.Ct. 295, 160 L.Ed. 2d 82 (2004). Defendant's federal habeas appeal also was denied. Martini v. Hendricks, 188 F. Supp. 2d 505, 507 (D.N.J. 2002), aff'd, 348 F.3d 360 (3d Cir. 2003), cert. denied, 543 U.S. 1025, 125 S.Ct. 662, 160 L.Ed. 2d 503 (2004).
Defendant filed this third post-conviction relief petition in November 2004, asserting (1) that the trial court denied him his rights to a fair trial, to due process, and not to be subject to cruel and unusual punishment by instructing the penalty phase jury that it should attempt to reach agreement in finding mitigating factors and thereby suggesting to the jury that unanimity regarding the existence of mitigating factors was preferred; and (2) that counsel's failure to raise that claim in defendant's direct appeal constituted ineffective assistance of counsel and a denial of due process.
Following argument on February 8, 2005, the trial court found that defendant's petition was not time-barred by the five-year period of Rule 3:22-12 because defendant raised a constitutional claim. After discussing the merits of the petition, the trial court reviewed the charge in its entirety and concluded that the jury understood that it did not have to be unanimous in finding any mitigating factor and that appellate counsel was not ineffective for failing to raise that issue. The court also found that because defendant's arguments could have been raised in a prior proceeding, the petition should be dismissed.
Defendant filed his notice of appeal with this Court on March 22, 2005. On December 12, 2005, the State moved for an order summarily affirming the denial of defendant's third petition. We hereby deny the State's motion and address defendant's arguments.
As he did before the trial court, defendant argues that he should be granted a new penalty phase trial because the trial court incorrectly instructed the jurors that they should try to agree unanimously on the existence of mitigating factors, thereby leading a reasonable juror to believe that the preferred verdict for finding a mitigating factor was a unanimous one. Defendant contends that erroneous statement of law contributed to the unanimous rejection of two mitigating factors and tainted the ultimate verdict. Defendant acknowledges that the jurors who deliberated in his penalty phase trial knew they could disagree on the mitigating factors and did so on two of the four. But he contends that the "unanimity is better" instruction violated his federal and state rights to due process and to a fair trial and implicated the prohibition against cruel and unusual punishment because it expressed a preferred verdict on the mitigating factors. He urges that because the "individualized consideration of mitigating evidence . . . is at the core of the constitutional protections given a capital defendant," the "unanimity is better" instruction was erroneous. Defendant argues that the Court's holding in State v. Hunt, 115 N.J. 330, 383 (1989), that "trial courts should not charge juries in the penalty phase on the importance of reaching a unanimous verdict," supports his argument.
Defendant challenges the trial court's ruling that even if the instruction was incorrect, it was as "tolerable" as the jury instruction in State v. Loftin, 146 N.J. 295 (1996), and State v. Cooper, 151 N.J. 326 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000). In those cases, this Court held that "when the isolated remark [in the charge] is viewed in the context of the charge as a whole, it is clear that there was no error." Id. at 399 (alteration in original) (citing Loftin, supra, 146 N.J. at 376). Defendant argues that Loftin and Cooper were wrongly decided because the Court misconstrued the defendants' argument that the incorrect jury instruction tells the jury ...