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State v. Loftin

June 5, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD LOFTIN, DEFENDANT-APPELLANT.



On appeal from the denial of Post-Conviction Relief in the Superior Court, Law Division, Mercer 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, Donald Loftin, was convicted by a jury of the capital murder of Gary K. Marsh, and sentenced to death. This Court affirmed his conviction and sentence on direct appeal, and upheld his sentence on proportionality review. Loftin now appeals from the denial of his petition for post-conviction relief (PCR), in which he claims that both his trial counsel and appellate counsel were constitutionally ineffective.

The overwhelming evidence presented to the guilt-phase jury supported a finding that Loftin killed Gary Marsh. On May 5, 1992, Marsh worked the midnight shift alone at the Exxon service station in Lawrenceville, New Jersey. At 6:30 a.m., a co-worker found him lying unconscious and bleeding on the office floor, the victim of a single gunshot would to the head. Marsh died less than ten hours later.

The cash drawer at the station was empty, although the station's records indicated that ninety dollars of revenue was generated during Marsh's shift. Notably, while Marsh was on duty, one customer had paid for gas with a fifty-dollar bill. Police could not locate Marsh's wallet, and found only three dollar bills and some personal effects in his pockets. The bullet that killed Marsh was found in the office wall.

Four days after the murder, Loftin attempted to purchase a computer from a Sears store in Pennsylvania using Marsh's credit card. While making the purchase, Loftin identified himself as Gary Marsh. Sears contacted the local police who arrived a short time later and arrested Loftin. In his pocket, police found a wallet containing Marsh's credit cards, driver's license, and other documents. Also inside the wallet were a fifty-dollar bill and a receipt for the purchase of a .380 caliber handgun. A search of Loftin's car parked outside the Sears store uncovered a .380 caliber handgun mounted underneath the dashboard along with ammunition for the gun in the glove compartment.

Ballistics tests revealed that the bullet taken from the Exxon station's office wall had been fired from the .380 caliber handgun seized from Loftin's vehicle. The police did not find Loftin's fingerprints at the crime scene or blood or gunshot residue on any of his confiscated clothes.

Loftin was indicted for capital murder, among other charges. The State served Loftin with notice of its intent to prove three aggravating factors: murder committed in the course of a robbery; murder to escape apprehension; and conviction for a prior murder (the killing of sixty-nine year old Sophia Fetter). At the conclusion of the guilt-phase trial, a jury convicted Loftin of all counts in the indictment. A different jury was impaneled to determine the appropriate penalty. The penalty-phase jury unanimously found the State had proven the three aggravating factors and that they outweighed the mitigating factors beyond a reasonable doubt. As mentioned earlier, this Court affirmed Loftin's conviction and sentence on direct appeal, and upheld his sentence on proportionality review.

In his PCR petition, Loftin proffered twenty-eight grounds for reversal of his convictions. Among other things, he argues that both his trial and appellate counsel performed so deficiently that they denied him his fundamental right to the effective assistance of counsel. The Court finds two of Loftin's claims raise valid concerns. One is based on appellate counsel's failure to raise on direct appeal the trial court's refusal to remove a juror who expressed not only a predisposition towards Loftin's guilt, but also potential racial bias. The other claim is based on trial counsel's dereliction in not requesting a voir dire of the jury to ensure that it was not tainted by the biased juror.

On the fourth day of an eleven day guilt-phase trial, the trial judge received a telephone call raising questions concerning the impartiality of a juror. The caller, an African-American, reported to the judge and counsel over a speaker phone that he had overheard Juror No. 4, a fellow postal employee, making statements early that morning indicating that he had made up his mind about Loftin's guilt and he was "going to the hardware store to buy rope to hang this man with." Another of Juror No. 4's co-workers, also African-American, was summoned to the telephone to relate similar statements made by Juror No. 4.

The next day, the trial judge brought Juror No. 4 into chambers with counsel and questioned him about the remarks attributed to him by his co-workers. The juror admitted making the hang-the-defendant-by-a-rope statement, but explained that he did so to stop his co-workers from harassing him. Because his co-workers already thought he was prejudiced, to end the harassment, he figured that he would tell them what they expected him to say. Juror No. 4 denied that he had formed an opinion regarding Loftin's guilt or innocence.

Loftin's counsel requested that Juror No. 4 be removed from the jury. The prosecutor believed Juror No. 4 had been provoked by his co-workers and accepted the juror's assertion that he harbored no predisposition regarding Loftin's guilt or innocence. Satisfied that Juror No. 4's answers revealed no predisposition, the trial judge decided to keep him on the jury. The judge instructed Juror No. 4 not to discuss with his fellow jurors or anyone else the nature of the discussions with the court.

At the conclusion of the trial, without objection from counsel, the trial judge determined that Juror No. 4 would be designated as an alternate juror, removing any possibility that he would sit as a deliberating juror. The judge explained that she did not want to excuse Juror No. 4 at the beginning of the trial out of concern that the court would run out of jurors. Up until that point, Juror No. 4 was treated no differently than any other juror and his interaction with his fellow jurors was in no way curtailed. At no point did the trial judge question the remaining jurors to inquire whether Juror No. 4 uttered in their presence remarks similar to the ones that offended his co-workers.

Loftin's counsel did not raise on direct appeal the trial judge's failure to remove Juror No. 4 immediately or to voir dire the jury to ensure he had not made prejudicial remarks poisoning the impartiality of the panel. In his PCR petition, Loftin claimed the issue was cognizable as a violation of his Federal and State rights to a fair and impartial jury and to the effective assistance of counsel. The PCR court perceived no prejudice to Loftin because Juror No. 4 did not participate in the jury deliberations or render a verdict. The PCR court concluded that counsels' failure to pursue the voir dire issue did not fall below an objective standard of reasonableness, and that the trial judge's failure to question jurors individually had no impact on the jury or its verdicts.

HELD: The trial court erred by not excusing a juror who appeared to be biased and who, by his own words, predetermined Loftin's guilt. The trial court was obliged to question the remaining jurors to make certain that none had been tainted. The failure of the court to ensure that the jury's impartiality had not been compromised requires reversal of Loftin's guilt and penalty phase verdicts.

1. A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial. All doubts about a juror's integrity or ability to be fair should be resolved in favor of removing the juror. Juror No. 4, a white juror, expressed to at least one of his African-American co-workers a desire to hang Loftin, who also was African-American. Juror No. 4's African-American co-workers did not consider his remarks to be a laughing matter - perhaps because the language of lynching when applied to a black defendant has a decided racial undertone. That Juror No. 4 did not deliberate as a juror does not lessen the potential that he improperly influenced other members of the panel. Allowing a non-deliberating juror suspected of racial bias to sit on a panel will lead to a presumption that other members of the panel may have been tainted. In a capital case in which heightened standards of procedural fairness are applied, Juror No. 4's shocking comments required his removal to ensure that he did not infect the impartiality of the entire panel. (pp. 13-23)

2. This Court has held that when the integrity of the jury selection process has been compromised, prejudice to a defendant will be presumed. The presumption of prejudice standard requires that the Court accept, as a starting point, that Juror No. 4 displayed to his fellow jurors his predisposition toward guilt. For the presumption to be overcome, the trial court had to voir dire the jury and satisfy itself either that Juror No. 4 did not express predetermined or biased views to other jurors or that if he did, the jurors were not influenced by that view. In light of the trial court's failure to do so, the presumption of prejudice could not be overcome. Therefore, Loftin did not receive his constitutionally guaranteed right to trial by an impartial jury. Denying an accused the right to an impartial jury is to deprive him of the very essence of a fair trial, and therefore is not susceptible to a harmless error analysis. (pp. 23-28)

3. The issue of Juror No. 4's bias was not raised on direct appeal and comes before the Court on a PCR claim that he was denied effective assistance of counsel. A two-prong test has been established for assessing such claims, requiring a defendant to show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Trial and appellate counsels' approach to issues arising from Juror No. 4's biased comments did not meet the minimal standards expected of an attorney in a capital case. The second prong also is satisfied because if appellate counsel had raised on direct appeal Juror No. 4's bias and its potential effect on the jury panel, there is a near certainty that the result would have been different before this Court. (pp. 29-32)

4. The Court also concludes that a remand to conduct a jury voir dire is not a feasible remedy. Almost thirteen years have passed since Loftin's guilt-phases trial. After so many years, the Court has little faith that juror interviews could produce reliable recollections sufficient to uphold a death sentence. The Court is therefore compelled to grant Loftin a new trial. (pp. 32-34)

5. For guidance to the trial court and counsel, the Court also addresses whether the pre-sentence investigation (PSI) report prepared following Loftin's murder conviction in Atlantic County can be used at the capital retrial in Mercer County. Although capital counsel failed to provide reasonably competent representation to Loftin when he allowed him to be interviewed alone by the Atlantic County Probation Department, exclusion of those statements at retrial is not the appropriate remedy. If Loftin offers a mitigation defense that is in conflict with his interview remarks, the State, which is blameless, should not be restrained from impeaching that defense. (pp. 34-43)

Loftin's guilt and penalty phase verdicts are REVERSED, and the matter is REMANDED for a new trial.

JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, expressing the view that the majority's conclusions are without foundation in the record and the remedy it orders is not appropriately tailored to the harm the majority purports to address.

CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, WALLACE and HOENS join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO has filed a separate, dissenting opinion.

The opinion of the court was delivered by: Justice Albin

Argued October 31, 2006

Defendant Donald Loftin was convicted by a jury of the capital murder of Gary K. Marsh. In the penalty-phase proceeding before a separate jury, he was sentenced to death. This Court affirmed defendant's conviction and sentence on direct appeal, State v. Loftin, 146 N.J. 295, 318 (1996) (Loftin I), and upheld his sentence on proportionality review, State v. Loftin, 157 N.J. 253, 266 (Loftin II), cert. denied, 528 U.S. 897, 120 S.Ct. 229, 145 L.Ed. 2d 193 (1999).

Defendant now appeals to this Court from the denial of his petition for post-conviction relief (PCR), in which he claims that both his trial and appellate counsel were constitutionally ineffective. One issue raised in the PCR petition is of grave concern to us. During the early stage of defendant's guilt-phase trial, the court learned that a white juror had told two of his African-American co-workers that he was going to buy a rope to hang defendant. The juror's comments were made in a case involving an interracial killing --- an African-American defendant was charged with murdering a white man. Accepting the juror's explanation that he had not predetermined defendant's guilt, the court declined to remove him from the panel and permitted him to sit with his fellow jurors until the conclusion of the trial, at which time he was designated an alternate juror. At no time did the trial court interview the remaining members of the panel to confirm that the juror did not communicate to them any preconceived notions of defendant's guilt.

There is no room in a capital trial for a juror who expresses a preconceived opinion of a defendant's guilt. Even more alarming is when the juror's remarks prejudging guilt also suggest racial bias. In either circumstance, the trial court must be vigilant to ensure that other members of the panel have not been tainted irreparably by inappropriate comments made by the errant juror. Because the court made no effort to satisfy itself that the jury's impartiality had not been compromised by the suspect juror, we can have no confidence that the verdict was the product of a fair trial. Accordingly, we have no choice but to vacate defendant's conviction and death sentence and remand for a new trial.

I.

A.

The overwhelming evidence presented to the guilt-phase jury supported a finding that defendant killed Gary Marsh. On May 5, 1992, Marsh worked the midnight shift alone at the Exxon service station in Lawrenceville, New Jersey. At 6:30 a.m., a co-worker scheduled to relieve Marsh found him lying unconscious and bleeding on the office floor, the victim of a single gunshot wound to the head. Marsh died less than ten hours later.

At the scene, investigating police officers discovered several key clues that would assist in solving the crime. Although the Exxon station's records indicated that ninety dollars of revenue was generated during Marsh's shift, the police found the office's cash drawer empty. Notably, while Marsh was on duty, one customer had paid for gas with a fifty- dollar bill. The police could not locate Marsh's wallet and found only three dollar bills, loose change, and some personal effects in his pockets. The police, however, did find the bullet that killed Marsh in the office wall. Nothing about the crime scene suggested that Marsh had struggled with his assailant.

Four days after the murder, defendant attempted to purchase a computer from a Sears store in Pennsylvania using Marsh's credit card. While making the purchase, defendant spoke with a representative of the Sears central credit office and not only identified himself as Gary Marsh, but provided Marsh's social security card number, age, address, and employer's name. Sears contacted the local police who arrived a short while later and arrested defendant for fraudulent use of a credit card and theft offenses. The police found in defendant's breast pocket a wallet, which contained Marsh's credit cards, social security card, health insurance card, driver's license, and various other documents. Also inside defendant's wallet were a fifty-dollar bill and a receipt for the purchase of a .380 caliber Bryco Model 48 pistol from D & S Gun Supplies of Levittown, Pennsylvania. A search of defendant's car parked outside the Sears store uncovered a .380 caliber Bryco Model 48 mounted underneath the driver's side dashboard along with two magazines for a .380 semi-automatic weapon in the glove compartment. The gun's serial number was identical to the number on the sales receipt in defendant's wallet. The police also discovered five-hundred rounds of .380 semi-automatic ammunition in defendant's home.

Significantly, ballistics tests revealed that the bullet taken from the Exxon office wall had been fired from the .380 caliber Bryco Model 48 pistol seized from defendant's car. The police, however, did not find defendant's fingerprints at the crime scene, or blood or gunshot residue on any of his confiscated clothes.

B.

On September 11, 1992, a Mercer County grand jury returned a four-count indictment charging defendant with purposely or knowingly causing by his own conduct the death of Marsh, N.J.S.A. 2C:11-3a(1) or (2); felony murder, N.J.S.A. 2C:11-3a(3); first-degree armed robbery, N.J.S.A. 2C:15-1; and second-degree possession of a weapon with a purpose to use it unlawfully against another, N.J.S.A. 2C:39-4a. On October 20, 1992, the State served defendant with notice of its intent to prove three aggravating factors as part of its capital prosecution: murder committed in the course of a robbery, N.J.S.A. 2C:11-3c(4)(g); murder to escape apprehension for the robbery, N.J.S.A. 2C:11-3c(4)(f); and conviction for a prior murder, N.J.S.A. 2C:11-3c(4)(a), the killing of sixty-nine year old Sophia Fetter. In time, defendant served the State with an intent to present evidence of four statutory mitigating factors and twenty-nine non-statutory factors pursuant to the catch-all provision of N.J.S.A. 2C:11-3c(5)(h).

At the conclusion of the eleven-day guilt-phase trial, a jury convicted defendant of all four counts in the indictment, concluding that he murdered Marsh by his own conduct. A different jury was impaneled to determine the appropriate penalty. First, the penalty-phase jury unanimously found that the State proved beyond a reasonable doubt the existence of each of the three aggravating factors. Second, one or more jurors found two statutory mitigating factors, "defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution," N.J.S.A. 2C:11-3c(5)(a), and defendant at the time of the murder was under the age of twenty-six, N.J.S.A. 2C:11-3c(5)(c), and seventeen non-statutory mitigating factors, N.J.S.A. 2C:11-3c(5)(h). Last, the jury unanimously concluded that the State had proven that the three aggravating factors outweighed the mitigating factors, individually and collectively, beyond a reasonable doubt.

That last finding required the trial court to impose the death sentence for capital murder. On the remaining counts, the court sentenced defendant to a concurrent twenty-year term with a ten-year parole-disqualifier for the robbery conviction and to a concurrent five-year term with a two-and-one-half-year parole-disqualifier for the weapons offense. The felony murder conviction was merged into the capital murder conviction. The court also ordered those sentences to run consecutive to the life sentence that defendant was serving for the murder of Ms. Fetter.

As mentioned earlier, this Court affirmed defendant's conviction and sentence on direct appeal, Loftin I, supra, 146 N.J. at 318, and upheld his sentence on proportionality review. Loftin II, supra, 157 N.J. at 266. In his PCR petition, defendant proffered twenty-eight grounds for reversal of his capital and related convictions.*fn1 Defendant, among other things, argued that both his trial and appellate counsel performed so deficiently that they denied him the fundamental right to the effective assistance of counsel guaranteed by the Federal and State Constitutions. The PCR court rejected each claim raised by defendant.

We find that two of those claims alleging constitutionally ineffective assistance of trial and appellate counsel raise valid concerns. One claim is based on appellate counsel's failure to raise on direct appeal the trial court's refusal to remove a juror who expressed not only a predisposition toward defendant's guilt, but also potential racial bias. The other claim is based on trial counsel's dereliction in not requesting a voir dire of the jury to ensure that it was not tainted by the biased juror and appellate counsel's failure to raise that issue as plain error on appeal. A full factual exposition is necessary to address those issues.

C.

On the fourth day of an eleven day guilt-phase trial, Tuesday, June 28, 1994, the trial judge received a telephone call raising questions concerning the impartiality of a juror. The caller, Mr. Smith,*fn2 an African-American, reported to the judge and counsel over a speaker-phone that he had overheard Juror No. 4, a fellow postal employee, making statements early that morning indicating that he had "[made] his mind up" about defendant's guilt. According to Mr. Smith, Juror No. 4, who is white, remarked that he was "going to the hardware store to buy rope to hang this man with."

Another of Juror No. 4's co-workers, Mr. Jones, also African-American, was summoned to the telephone to relate similar statements made by Juror No. 4 at the post office just days earlier. On the previous Friday, Mr. Jones asked Juror No. 4 about the case on which he was sitting as a juror. Juror No. 4 replied that the case involved the "[g]uy who shot the gas station attendant." His curiosity apparently piqued, Mr. Jones asked "[h]ow did it go," and Juror No. 4 began laughing. When Mr. Jones further pressed him, Juror No. 4 stated: "I'm going to the hardware store to get me a good rope so when we hang him, it won't break." The next day, Mr. Jones decided to confront Juror No. 4 regarding his earlier remarks. Juror No. 4 indicated that he could not discuss the case, that he would only say that he was "on the way to the hardware store." When asked why he was going to the hardware store, Juror No. 4 commented: "Because they got good ropes. I'm not going to K-Mart. K-Mart ropes break. I'm going to a hardware store where I can get a rope that won't break." In giving his reasons for bringing this information to the court's attention, Mr. Jones stated that he did not "know whether the man is guilty or not," but he nevertheless felt that it was "incumbent upon [him] as a citizen, you know, looking out for the rights of justice, you know, that the courts should be aware of this because I'm sure, you know, the courts would not condone, you know, this kind of remarks."

On the fifth day of the guilt-phase trial, in the presence of counsel, the trial judge brought Juror No. 4 into chambers and questioned him about the remarks attributed to him by his two co-workers. Juror No. 4 admitted making the hang-the-defendant-by-a-rope statement, but explained that he did so to stop his co-workers from "harassing" him. Because his co-workers already thought that he was "prejudiced," to end the harassment, he figured that he would tell them what they expected him to say. Juror No. 4 denied that he had formed an opinion regarding defendant's guilt or innocence. He did dispute that he had worked on Monday, thus contradicting Mr. Smith's account.

Defendant's counsel requested that Juror No. 4 be removed from the jury because he had prejudged defendant's guilt and because his comments revealed a racial bias. Counsel noted that four alternate jurors remained and added, "Why take a chance"? The prosecutor, on the other hand, believed that Juror No. 4 had been provoked by his co-workers and was "forthright an[d] honest" with the court. She accepted the juror's assertion that he harbored no predisposition regarding defendant's guilt or innocence. Satisfied that Juror No. 4's answers revealed no predisposition, the trial judge decided to keep him on the jury. She observed that Juror No. 4 did not deny making the statements that offended his co-workers and that Mr. Jones had initiated the conversations that led to the offensive remarks. The judge concluded that "not every racially insensitive remark is necessarily a racist remark nor did it reflect predisposition." The judge instructed Juror No. 4 not to discuss with his fellow jurors or anyone else "the nature of [the] discussions with the [c]court."

At the conclusion of the trial, without objection from counsel, the trial judge determined that Juror No. 4 would be designated as an alternate juror, removing any possibility that Juror No. 4 would sit as a deliberating juror.*fn3 The trial judge decided that "the best interest of justice" required that Juror No. 4 not sit as a deliberating juror. She explained that she did not want to "excuse [Juror No. 4] at the beginning of the trial out of concern that [the court] would run out of jurors." Accordingly, Juror No. 4 did not participate in jury deliberations or in rendering a verdict. Up to that point, it appears that Juror No. 4 was treated no differently than any other juror and that his interaction with his fellow jurors was in no way curtailed. At no point did the trial judge voir dire the remaining jurors to inquire whether Juror No. 4 uttered in their presence -- before or after his court interview -- remarks similar to the ones that offended his postal co-workers.

D.

As noted earlier, defendant's counsel did not raise on direct appeal the trial judge's failure to remove Juror No. 4 immediately from the jury or to voir dire the jury to ensure that Juror No. 4 had not made prejudicial remarks poisoning the impartiality of the panel. In his PCR petition, defendant claimed that the issue was cognizable as a violation of his Federal and State rights to a fair and impartial jury, see U.S. Const. amend. VI; N.J. Const. art. I, ΒΆ 10, and to the effective assistance of counsel. The PCR court "perceive[d] no prejudice to the defendant" because Juror No. 4 did not participate in jury deliberations or render a verdict. On the other hand, the PCR court found that counsel should have requested and the trial judge should have conducted "[a]n individualized voir dire of the jury following the [Juror No. 4] disclosure." The PCR court, however, observed that "[t]he decision of trial counsel [to] forego individualized voir dire might not satisfy technocrats of trial tactics, but here, both counsel and the court, who were on the scene, saw no need for the same." Ultimately, the ...


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