SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6540-93T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES EARL JONES,
Defendant-Appellant.
_______________________________________________________________
Submitted: January 6, 1998 - Decided: February 11,
1998
Before Judges Dreier, Keefe and Wecker.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County.
Ivelisse Torres, Public Defender of New Jersey,
attorney for appellant (William B. Smith, Assistant
Deputy Public Defender, of counsel and on the brief).
James Earl Jones submitted a pro se brief.
Peter Verniero, Attorney General of New Jersey,
attorney for respondent (Janet Flanagan, Deputy
Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
KEEFE, J.A.D.
In this death penalty case, the jury was unable to unanimously conclude beyond a reasonable doubt that defendant James Earl Jones purposely or knowingly caused the death of Hope Stauffer. The jury, however, found defendant guilty of the murder of Hope Stauffer, contrary to N.J.S.A. 2C:11-3a(1) (count one); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count
three); first degree kidnapping of Hope Stauffer, contrary to
N.J.S.A. 2C:13-1b(1)(2) (count four); second degree kidnapping of
Hope Stauffer's son, M.S., contrary to N.J.S.A. 2C:13-1b(1)(2)
(count five); conspiracy to commit robbery, contrary to N.J.S.A.
2C:5-2 (count six); first degree robbery, contrary to N.J.S.A.
2C:15-1 (count seven); possession of a weapon for an unlawful
purpose, contrary to N.J.S.A. 2C:39-4a (count eight); unlawful
possession of a weapon, contrary to N.J.S.A. 2C:39-5b (count
nine); and first degree aggravated sexual assault, contrary to
N.J.S.A. 2C:14-2a(3) (count eleven). Count ten, charging
defendant with third degree hindering apprehension or
prosecution, contrary to N.J.S.A. 2C:29-3b(1), and count twelve,
charging defendant with fourth degree hindering apprehension,
contrary to N.J.S.A. 2C:29-3b(4), were dismissed by the trial
judge during trial.See footnote 1
At sentencing, the trial judge merged the felony murder
conviction into the murder conviction and the conspiracy and
possession of a weapon for an unlawful purpose convictions into
the robbery conviction. The judge then imposed the following
consecutive terms of imprisonment: life with a 30 year parole
disqualifier for murder (count one); 30 years with a 15 year
parole disqualifier for first degree kidnapping (count four); 10
years with a five year parole disqualifier for second degree
kidnapping (count five); and 20 years with a 10 year parole
disqualifier for aggravated sexual assault (count eleven). As to
the remaining counts for which defendant was found guilty, the
judge imposed the following concurrent terms of imprisonment: 20
years with a 10 year parole disqualifier for first degree robbery
(count seven) and 5 years with a 2-1/2 year parole disqualifier
for unlawful possession of a weapon (count nine). Defendant,
therefore, received an aggregate prison term totalling life plus
60 years, with a 60 year period of parole ineligibility. The
appropriate V.C.C.B. penalties were also imposed.
On appeal, defendant raises the following issues through
appellate counsel:
I. THE JURY INSTRUCTION ON ACCOMPLICE LIABILITY WAS
INCORRECT IN THAT IT POTENTIALLY CAUSED THE JURY TO
BELIEVE THAT MERELY SILENTLY ASSENTING TO AND APPROVING
OF ANOTHER PERSON'S CRIMINAL BEHAVIOR MAKES ONE AN
ACCOMPLICE TO THOSE CRIMES. (Not Raised Below).
II. DEFENDANT'S CONVICTIONS OF PURPOSEFUL AND KNOWING
MURDER AND FELONY MURDER MUST BE REVERSED SINCE THE
TRIAL JUDGE ERRONEOUSLY PREVENTED DEFENSE COUNSEL FROM
ARGUING THAT THE LACK OF FRACTURE TO THE VICTIM'S HYOID
BONE AND LARYNX WAS EVIDENCE THAT DEFENDANT'S CONDUCT
HAD BEEN RECKLESS, RATHER THAN PURPOSEFUL OR KNOWING.
III. DEFENDANT'S CONVICTION ON THE ELEVENTH COUNT OF THE INDICTMENT MUST BE REVERSED AND THE COUNT DISMISSED AS N.J.S.A. 2C:14-2a(3) UNCONSTITUTIONALLY SETS UP AN IRREBUTTABLE PRESUMPTION THAT AN ACT OF SEXUAL PENETRATION OCCURRING DURING A MURDER IS UNCONSENTED TO; ALTERNATIVELY, THE COURT ERRED IN FAILING TO CHARGE THAT THE STATUTE CREATED A PERMISSIVE INFERENCE ONLY
AND THAT THE STATE HAD TO PROVE LACK OF CONSENT BEYOND
A REASONABLE DOUBT. (Not Raised Below).
IV. DEFENDANT'S CONVICTION OF AGGRAVATED SEXUAL ASSAULT
MUST BE REVERSED SINCE THE TRIAL JUDGE FAILED TO
INSTRUCT THE JURORS THAT THE STATE MUST PROVE BEYOND A
REASONABLE DOUBT THAT THE VICTIM WAS ALIVE WHEN THE ACT
OF SEXUAL PENETRATION OCCURRED. (Not Raised Below).
V. BY AMENDING, OVER DEFENSE OBJECTION, THE FELONY MURDER
COUNT TO INCLUDE PREDICATE FELONIES NOT INDICTED BY THE
GRAND JURY AS PART OF THE FELONY MURDER COUNT, THE
COURT VIOLATED DEFENDANT'S STATE CONSTITUTIONAL RIGHT
TO TRIAL ONLY UPON INDICTMENT.
VI. THE SENTENCE IMPOSED MUST BE VACATED AS JUDGE STEINBERG
ERRONEOUSLY GAVE RETROACTIVE EFFECT TO THE 1993
AMENDMENT TO N.J.S.A. 2C:44-5A, IMPROPERLY USED THE
AVENEL REPORT TO SUPPORT THE SENTENCE AND IMPOSED AN
OTHERWISE EXCESSIVE SENTENCE.
In his pro se brief, defendant raises the following additional
points:
I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PURSUE THE
DEFENSES OF INTOXICATION AND DIMINISHED CAPACITY.
II. REVERSIBLE ERROR WAS COMMITTED BY THE TRIAL COURT IN
FAILING TO PROPERLY INSTRUCT THE JURY ON THE DEFENSE OF
INTOXICATION AND POSSIBLE LESSER INCLUDED OFFENSES.
III. THE STATEMENT MADE BY THE DEFENDANT TO THE POLICE
SHOULD HAVE BEEN EXCLUDED.
IV. THE TRIAL JUDGE ERRED IN FAILING TO DEFINE CAUSATION TO
THE JURY IN HIS CHARGE ON FELONY MURDER. (Not Raised
Below).
In the early hours of June 29, 1990, Hope Stauffer drove her
two brothers, Robert and Timothy, and a friend, David Ray
("Ray"), to the Rosedale Tavern in Pennsauken to purchase wine
coolers. Hope's four-year-old son, M.S., was also in the car
with them. Hope and her son remained in the car which was parked
in the Rosedale Tavern parking lot, while the Stauffer brothers
and Ray went inside the tavern. The three men were gone
approximately five to fifteen minutes. Before entering the
tavern, Timothy Stauffer noticed three males sitting in the back
of a black pick-up truck.
According to defendant's second taped statement that was
played at trial, defendant and co-defendant Bell hitched a ride
in a black pick-up truck to the Rosedale Tavern. Defendant
claimed that after spotting Hope in the parking lot, Bell ran
over to her and put a "snub nose thirty-eight" gun to her head.
Bell demanded Hope to "move over Bitch" as he got into the
driver's side of the car. He then moved M.S. from the front seat
to the back seat. Defendant got into the passenger side of the
car. While Bell drove off from the parking lot, he threatened
Hope that "he would shoot her if she [did] something stupid."
Hope was crying and begging the two defendants not to hurt her
son.
After driving to a field, Bell forced Hope out of the car,
grabbing her by the wrist while keeping the gun pointed towards
her. Defendant followed Bell and the victim into a wooded area.
Defendant forced Hope to the ground, on a tan cushion, by choking
her. While defendant continued to choke Hope, Bell "stood to the
side with the pistol out" threatening, "Bitch, I'll shoot you act
stupid, bitch, I'd shoot you, you act stupid." As Hope
struggled, she begged defendant to, "please get off me, please
get off me."
Bell put the pistol in his pants and also began choking Hope
again with more force. Defendant continued holding Hope by the
neck while Bell pulled her clothes off. Defendant claimed that
Bell persisted choking Hope while he had sex with her. After
about five minutes, defendant ejaculated and "just left, cause I
knew she was dead then." Defendant stated that in his mind, as
he "was getting ready ... [to] stick [his] penis in her, she was
not alive at all." Defendant later stated that when he had
"gotten on top of [Hope]" her body was shaking and it did not
stop shaking until Bell "put his hands around her neck for a
short period of time." Once defendant finished the sexual
assault, he noticed that the victim was "out of it"; he checked
for a pulse but did not feel one. When asked again whether the
victim was dead while he had intercourse with her, defendant
responded:
There was no doubt at all, once I had finish
coming to the end of having intercourse with
her, that she was dead.
As defendant fled, he noticed Bell pull his pants down and
proceed to have sex with Hope. Defendant ran to the car where
Hope's son had remained and Bell followed, saying, "[T]he bitch
is dead, the bitch is dead." Bell drove the car from the woods
and dropped defendant and M.S. off on the corner of 29th Street.
Bell abandoned the car on Cramer Street and fled.
Defendant asked M.S., who was crying, where he lived. The
child responded, "Uncle Joey, 28th Street, Uncle Joey, 28th
Street." Defendant admitted that he thought if he brought the
child back home he would be less likely to be deemed a suspect.
In the interim, Hope's family realized she and M.S. were
missing and began looking for her. They later received word that
M.S. was at Joseph Stauffer's house. The Stauffer family went to
Joseph's house where defendant told them that he found the child
wandering the streets near a church. Defendant led the family to
the area where he claimed to have discovered the child and also
searched near the church and railroad tracks for the victim.
While searching the area near the railroad, Robert Stauffer found
the victim's car in a grass parking lot. The tires of the car
were covered with mud and the steering wheel cover was "all
ripped up." Robert summoned the police.
Officer Robert Morley of the Pennsauken Township Police
Department was among those who arrived to investigate the call.
Defendant identified himself to Officer Morley as "Clarence
Owalsn." Defendant told Officer Morley that he found M.S. while
walking through a wooded area behind the Stockton Station
Apartments.
Defendant accompanied the Stauffer family and some friends
as they searched for the victim. At one point, the searchers
were close to the site where the victim's body was located but
defendant diverted them from the area saying, "[N]ever mind,
don't worry about it, she's not back there." Defendant explained
that he did not want to lead them to the site for fear "they
would have felt as though it was obvious that [he] had something
to do with it by [him] bringing the baby home and saying to go
down that road." Officer Ted Nickles of the Pennsauken Police K-9 Unit joined the search and ultimately found Hope's naked,
lifeless body.
Officer Morley subsequently identified defendant as James
Earl Jones and learned that there was an outstanding warrant for
defendant in Camden. Defendant was then placed under arrest and
taken into custody.
The autopsy established that Hope died from strangulation.
She suffered hemorrhaging and muscle bruising in the neck,
including the thyroid gland and larynx. The hemorrhaging and
bruising ranged from one-half to one inch deep from the skin.
The autopsy also revealed a one-inch laceration of the tissue
between her vagina and rectum, indicative of sexual assault. In
addition, she suffered a series of injuries including significant
purple discoloration of the neck, chest and face; scrapes on the
right shoulder, left forearm, left thigh, nose and chin; and
bruising to the left shoulder.
According to Dr. Segal, the county medical examiner,
the strangulation occurred when she was
alive, the laceration of the perineum when
she was alive, and the majority of the scrape
marks and bruises when she was alive.... The
clearly postmortem injuries were the scratch
marks on the lower legs, both sides ... [and
the] insect bites.
With regard to the sexual assault, although nonmotile sperm were
detected through microscopic examinations of the vaginal
material, Dr. Segal stated that "there's no way to say whether
the sperm got there when the person was alive or dead."
Extensive forensic testing showed consistencies between hair
found on defendant's clothes and Hope's pubic hair. Also, brown
hairs found on defendant's sock and shirt matched Bell's hair.
The soil lifted from Hope's car was consistent with the soil
taken from the crime scene. Defendant's palm prints were found
on the passenger side of the car trunk, the trunk itself, and the
rear driver's side window of Hope's car. Cotton fibers of Hope's
red shirt were found on Bell's clothing; likewise, black cotton
fiber from Bell's black shorts was found on Hope's red shirt.See footnote 2
[At the request of the court, only points II, III, IV and V
merit publication, and, therefore, the remaining issues are
omitted].
Defendant contends that the trial judge erred by precluding
defense counsel from referring to the victim's unfractured hyoid
bone during closing arguments. This issue was argued by the
parties prior to closing arguments:
[Prosecutor]: [Defense counsel] indicated he
was going to argue certain things that the
jury can find because of the lack of a
fracture of the hyoid bone ... the bone down
here in the neck near the larynx area.
My understanding is he was going to ask the jury to infer because of that bone not being fractured then less force was applied, so
that he could argue that would be reckless
conduct as opposed to purposeful conduct.
Quite frankly, there is no mention [in] the
testimony about the hyoid bone, what it would
take to fracture it, whether or not it's
likely to be fractured in this type of
patient or person.
My understanding of reading the literature is
that it's not uncommon to have an unfractured
hyoid bone. Especially, in a person this
age.
Apparently, the hyoid bone -- comes up like a
T and separates at the top and ... that area
of the bone gets brittle like most bones with
age and a person younger is less likely to
fracture than a person older.
There is absolutely no testimony concerning
the bone and whether it fractured and could
be fractured or why it's not fractured to
allow comment on it.
THE COURT: Okay.
[DEFENSE COUNSEL]: Judge, Dr. Segal under
both Direct and Cross testified that the
hyoid bone was not broken; the hyoid bone and
larynx were intact.
I think it's perfectly permissible to argue
to the jury that broken bones indicate
intent. There's been no medical expert
testimony nor does there need to be. I'm
free to argue to this jury and it was
calculated on my part.
I purposely didn't ask the doctor about the
broken hyoid bone or lack thereof and ... I
have no burden, I'm the defense. The State
had a burden to put that in the portion of
the case....
I'm not testifying as a doctor. I don't
pretend to be one. Simply, arguing to the
jury: "You have testimony before you that
the hyoid bone and larynx are intact; you can
infer from that that the force necessary to
break it was not present."
That's a logical inference I think I should
be permitted to argue.
Judge Steinberg made the following ruling:
You are asking them to infer from that,
therefore, great pressure was not exerted. I
happen to agree with the prosecutor, that is
anatomy and that's something that ordinarily
calls for expert testimony.
I'm certainly not about to take judicial
notice of the fact that [because] the ...
bone ... was not fracture[d] [it] means that
there was a less degree of force applied than
that which is purposeful or knowing. That is
a matter that I think requires expert
testimony to assist the jury and in the
absence of any expert testimony with respect
to that, the objection is sustained.
It certainly has the capacity to mislead. I
don't know and you don't know the fact and
more importantly the jury doesn't know. The
doctor was on the stand and it was not asked.
The jury is going to be given a piece of
argument that may or may not be
scientifically correct. I'm going to sustain
the objection.
Defense counsel is entitled to wide latitude in making his or her summation. See State v. Reynolds, 41 N.J. 163, 176 (1963), cert. denied, 377 U.S. 1000, 84 S. Ct. 1930, 12 L.Ed.2d 1050, reh'g denied, 379 U.S. 873, 85 S. Ct. 22, 13 L.Ed.2d 80 (1964). Nevertheless, "[t]he scope of defendant's summation argument must not exceed the `four corners of the evidence.'" State v. Loftin, 146 N.J. 295, 347 (1996) (quoting Reynolds, supra, 41 N.J. at 176). "The `four corners' include the evidence and all reasonable inferences drawn therefrom." Ibid. (citing
State v. Hill,
47 N.J. 490, 499 (1966)). Thus, it is proper for
a trial court to preclude references in closing arguments to
matters that have no basis in the evidence. Ibid.
In this case, there was no evidence submitted at trial
concerning the hyoid bone. Indeed, on appeal, defendant concedes
that the medical examiner never expressly referred to the hyoid
bone during his testimony. Clearly then any such reference by
defense counsel would have exceeded the "four corners" of the
evidence. The trial judge did not err in his ruling on this
point.
We are also satisfied that the defendant's argument required
expert testimony to support it. The trial judge may require
expert testimony when the matter to be dealt with is "so esoteric
that jurors of common judgment and experience cannot" otherwise
form a valid judgment as to the fact in issue without expert
testimony. Butler v. Acme Markets, Inc.,
89 N.J. 270, 283 (1982)
(citation omitted); see also Biunno, Current N.J. Rules of
Evidence, comment 1 on N.J.R.E. 702.
Defense counsel wanted to argue to the jury during his
closing statement that:
"You have testimony before you that the hyoid
bone and larynx are intact; you can infer
from that that the force necessary to break
it was not present."
The importance or non-importance of an intact hyoid bone, and how that reflects upon the pressure used to strangle someone and correspondingly upon the aggressor's state of mind, is a matter that is "esoteric" and is an issue upon which jurors of common
judgment and experience could not form a valid judgment without
expert testimony. See Butler, supra, 89 N.J. at 283.
Defendant was convicted of first degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(3). That statute provides that a defendant will be guilty if the act of sexual penetration "is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape." In the context of this case, defendant concedes that a knowing sexual penetration of another in the course of a homicide suffices to establish the offense.
For the first time on appeal, however, defendant contends that the statute is unconstitutional if it is interpreted to permit his conviction without requiring the jury to be instructed that proof of the predicate underlying offense of homicide creates only an inference that the sexual act was "unconsented to." In the absence of such an instruction, defendant contends that the "statute operates to create a hidden, conclusive presumption" that a "sex act occurring during a homicide occurs against the victim's will" and, thus, violates his federal and state constitutional rights. No such instruction was requested at trial, but the absence of such a request is not determinative of our resolution of this issue.
We conclude that lack of consent is not an element of the crime of sexual assault. The history of the adoption of our current law concerning sexual offenses has been thoroughly explored by the Supreme Court in In re M.T.S., 129 N.J. 422 (1992) and need not be repeated here. Suffice it to say that "in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant." Id. at 442. Thus, in redefining "rape consistent with the law of assault and battery," the Legislature decided "to eliminate non-consent and resistance from the substantive definition of the offense." Id. at 443. In general, sexual assault is proven when the State offers evidence of sexual penetration in circumstances where a reasonable person would not believe that the victim had given "affirmative and freely-given permission ... to the specific act of sexual penetration." Id. at 444. Evidence of force against the victim "in excess of that inherent in the act of penetration" is sufficient proof of the latter element of the offense. Ibid. We construe N.J.S.A. 2C:14-2a(3) to be a legislative determination that proof of one or more of the predicate crimes identified therein is all that is necessary to establish the absence of "affirmative and freely-given permission." Although it is difficult to imagine circumstances, such as here, where the victim of a kidnapping, robbery and homicide would, nonetheless, affirmatively and freely give permission to the act of sexual
penetration, such a reading of the statute leaves open the
possibility that such could be the case. And in that rare case,
the evidence pertaining to consent would be relevant on the issue
of the force used to commit the act of penetration. See State v.
Cuni,
303 N.J. Super. 584 (App. Div.) (holding that evidence of
consent is relevant where the first degree aggravated assault was
predicated on the commission of a burglary with intent to commit
second degree sexual assault), certif. denied,
152 N.J. 12
(1997); Cannel, N.J. Criminal Code Annotated, comment on N.J.S.A.
2C:14-5 (1997-98). Although we are cognizant of the argument
that the statute can be interpreted to eliminate consent as a
relevant factor where the circumstances are as identified in
N.J.S.A. 2C:14-2a(3), that intent is not manifestly clear from
the words of the statute or the relevant statutory history.
Cannel, Criminal Code Annotated, supra. Allowing the
introduction of such evidence in the rare case, however, gives a
defendant all the process that is due to an accused under such
circumstances.
In this case, there were simply no facts upon which the
issue of consent could rationally be considered by the trier of
fact. Accordingly, the trial judge did not err in his
instructions to the jury.
It is defendant's position that the crime of sexual assault requires a living person, that the State was required to prove beyond a reasonable doubt that the victim was alive at the time
of penetration, and that the absence of a jury charge to that
effect constitutes reversible error. Defendant relies upon: (1)
his second statement to the police, wherein he stated that the
victim was dead when he penetrated her; and (2) the medical
examiner's testimony that there is "no way to say whether the
sperm got there when the person was alive or dead."
Although defendant did not ask the court to charge the jury
that the victim had to be alive at the time of penetration, there
is some suggestion in the record that the issue was broached by
trial counsel. During oral argument on defendant's motion to
dismiss, defense counsel stated, with reference to the felony
murder count:
My argument would have been for the purposes
of making that Appellate record, Jones'
statement indicates obliquely at three points
she was dead at the act of sexual
penetration. There is some issue there
whether you can rape a dead person, whether
that can support a felony murder conviction.
THE COURT: The argument is you can't have
force against a dead person....
[PROSECUTOR]: Having said that, I think what
makes the most sense is for me to skip ahead
to the next count....
Nevertheless, defendant's appellate brief designates this point
as one not raised below. We will address the issue as if it had
been properly presented.
The language of the criminal code does not expressly
indicate whether a rape victim must be a living person. As noted
above, N.J.S.A. 2C:14-2a provides, in pertinent part, that
An actor is guilty of aggravated sexual
assault if he commits an act of sexual
penetration with another person under any one
of the following circumstances....
As a general matter under the criminal code, "person" is defined
as "any natural person." N.J.S.A. 2C:1-14g. There is no New
Jersey authority that addresses the specific issue.
Various other states, however, have addressed this issue and
have reached conflicting results. See John E. Theuman, Fact that
Murder-Rape Victim was Dead at Time of Penetration as Affecting
Conviction for Rape,
76 A.L.R.4th 1147 (1990). Courts in
Georgia, Kentucky, Massachusetts, Ohio, and Tennessee have
concluded that the death of a rape-murder victim prior to
penetration did not necessarily preclude a rape conviction.See footnote 3 To
the contrary, courts in California, Kansas, Maryland, Michigan,
Nevada, Oklahoma, and Pennsylvania have concluded that a rape
conviction requires that the rape-murder victim be alive at the
time of penetration.See footnote 4
We believe the states that require proof that a rape-murder
victim be alive at the time the assaultive behavior begins but
not at the time of penetration best represent the principles that
undergird our sex offense law. That is so because our criminal
code focuses more on the assaultive behavior than the sexual act.
M.T.S., supra, 129 N.J. at 442-443. In that context, when a
sexual assault is committed as part of one "continuous
transaction," the status of the victim at the time of penetration
is deemed irrelevant. See, e.g., Commonwealth v. Waters,
649 N.E.2d 724, 726 (Mass. 1995); Commonwealth v. Tarver,
345 N.E.2d 671, 679 (Mass. 1975). As stated in Waters,
In the circumstances of one continuous event,
it does not matter whether the victim's death
preceded or followed the sexual attack.
[Waters, supra, 649 N.E.
2d at 726.]
In these cases, the prosecution must "show that the victim was alive when the series of assaults began which ultimately resulted
in the act of sexual penetration charged," but need not show that
the victim "was still alive at the completion of the sequence of
events." State v. Whitsell,
591 N.E.2d 265, 278 (Ohio 1990).
"[T]he mere fact that the victim might have been dead by the time
the penetration occurred does not detract from appellant's
culpability." Ibid.
This result is also implicitly supported by one pre-code New
Jersey decision, State v. Knight,
96 N.J.L. 461 (E. & A. 1921),
which stated:
The suggestion that, when the victim dies
from shock directly resulting from the attack
upon her, and the death precedes attempted
penetration, the party committing the assault
does not come within the condemnation of the
statute, is entirely too unsubstantial to
justify extended discussion.
[Id. at 470.]
In sum, by defendant's own admission, Hope Stauffer was
alive when he was laying on top of her on the ground choking her
and when Lawrence Bell began removing her clothing. That is all
the law requires.
Defendant argues that Judge Steinberg erred by charging the jury that the predicate felonies underlying the felony murder charge could include aggravated sexual assault, kidnapping, and robbery, in spite of the fact that the indictment includes reference only to aggravated sexual assault. After extensive argument by counsel, and defendant's statement on-the-record in
support of his attorney's position, Judge Steinberg reasoned and
held as follows:
To be honest with you, what really concerns
me is the language in Purnell....
In that case the problem was that [there]
were predicate felonies alleged in the
indictment, but no count for felony murder
and the Supreme Court held ... that the
failure to submit to the jury felony murder
... as an alternate to a death eligible case
when there is a rational basis for a jury
verdict of felony murder is not
constitutionally permissible.
I recognize the fact that in this case we
have a felony murder count, but my overriding
concern is the fact that that felony murder
count is limited to one predicate felony and
that is aggravated sexual assault.
In State v. Purnell,
126 N.J. 518 (1992), the defendant was
indicted for murder, hindering apprehension, possession of a
weapon for an unlawful purpose, and perjury. Id. at 529. During
the guilt phase of the trial, the State submitted evidence that
the murder occurred during the commission of a robbery. Id. at
524. Defendant had not been indicted for robbery, id. at 529,
and the jury was not given the option of convicting defendant for
felony murder based upon the predicate crime of robbery. Id. at
523.
At the sentencing phase, the State asserted as an
aggravating factor the fact that the murder occurred during the
commission of a robbery. Ibid. The jury unanimously found that
this aggravating factor existed, and the defendant was
subsequently sentenced to death. Id. at 529-30.
On appeal, the Supreme Court reversed the sentence of death
based upon the trial court's failure to charge felony murder.
Id. at 523, 530-534. The Court stated:
New Jersey defendants cannot be subjected to
the death penalty for murder if their intent
is found to be anything less than knowingly
or purposefully to cause death. If, within
the body of evidence presented at trial,
proofs exist that provide a rational basis
for a jury verdict of a lesser-included
offense, a defendant is constitutionally
entitled to have that alternative offered for
jury deliberation.... To deprive a capital
defendant of a lesser-included alternative
murder charge, which arguably would have
affected the deliberation of a death
sentence, is not constitutionally
permissible.
[Id. at 532 (citations omitted).]
The facts of Purnell are somewhat different than the facts
of this case. In Purnell the issue of a felony murder charge was
not raised; the charge was neither requested nor challenged by
the defendant. Id. at 524. Nevertheless, the Court touched upon
the issue raised by a defendant's specific request that a lesser-included or "alternative" offense not be charged in a capital
case:
Obviously, there may be circumstances in
which a defendant will specifically request
that a jury not be charged on a lesser-included offense as a matter of trial
strategy. Whether such a request can or
should be acceded to especially in a capital
case, raises concerns regarding the interests
of the public (represented by the jury) in
being presented with "all of the facts and
all of the possible offenses that may
reasonably be found from such facts." We
need not debate that issue in this case, for
there is nothing in the record to indicate
that a specific request not to charge felony-murder was made here.
[Id. at 532 (citations omitted).]
Judge Steinberg, relying on Purnell, concluded that a charge
of felony murder based upon all the predicate felonies presented
was required. His reasoning is best described in his own words:
It's not a question of notice. The defendant
is on notice he's also charged with robbery
and/or aggravated sexual assault and that
under the statute those are predicate
felonies which would support a charge and
conviction for felony murder.
So, he's specifically indicted for the predicate
felonies. They are in the case, they were tried and
... will be argued and therefore I'm not so sure that
the distinction between Purnell and Jones is anything
more than a distinction without a difference.
Because, we have the same result. We have a jury being
deprived and defendant being deprived of other
predicate felonies which could lead the jury towards a
felony murder conviction and away from a purposeful or
knowing conviction and could therefore lead the jury
towards a non-death eligible verdict.
And more importantly, the concern really is
by limiting the consideration to one
predicate felony, it steers the jury towards
the potential of purposeful or knowing
conviction if they are satisfied beyond a
reasonable doubt that the killing took place,
but for one reason or another they have a
reasonable doubt as to whether it took place
during the course of an aggravated sexual
assault.
So, that what we are doing is we are
increasing the potential for a death sentence
and the downside of it is that, yes, there is
another two ways where the jury could find
him guilty of a felony murder.
The Purnell Court emphasized the constitutional importance of providing a jury with every "death ineligible" alternative
when the record contains a "rational basis" for such
alternatives. There can be no doubt that the record in this case
provides a rational basis for felony murder based upon the
predicate crimes of kidnapping and robbery, for which defendant
was separately indicted and convicted.
When a separate offense is "a basis for an alternative form
of murder that is non-capital, a defendant is constitutionally
entitled to have that alternative offered for jury deliberation."
Id. at 534. Although Purnell does not address whether such
alternatives must be offered over a defendant's objections, we
believe the reasoning and logic of the decision apply to this
situation, and that it was entirely proper for Judge Steinberg to
give the jury every possible death-ineligible alternative
supported by the record.
The holding in Purnell was recently fortified by the Court
in State v. Cooper,
151 N.J. 326, 361 (1997).
Purnell, supra, requires that in a capital
murder case, "all forms of homicide
rationally supported by the evidence ...
should be placed before the jury." Purnell
... requires that felony murder be submitted
to the jury in capital cases if rationally
supported by the evidence.... In Purnell,
the rational basis was the State's reliance
on death occurring in the course of a felony
as an aggravating factor even though felony
murder was not charged in the indictment.
[Ibid. (citations omitted) (emphasis added).]
In conclusion, we find no error in Judge Steinberg's
decision to charge the jury on each of the predicate crimes for
felony murder which were supported by the record.
Affirmed.
Footnote: 1Lawrence Bell was also indicted in the same indictment with
defendant. He was charged separately with murder in count two of
the indictment and was named along with defendant in counts three
through eleven. Bell, who was 14 years old at the time of the
incident, was tried as an adult. He was convicted of murder,
felony murder, first degree kidnapping, second degree kidnapping,
conspiracy to commit first degree robbery, first degree robbery,
second degree possession of a weapon for an unlawful purpose,
third degree unlawful possession of a handgun, and second degree
sexual assault. His conviction and sentence were affirmed by
this court in an unreported opinion on March 7, 1996. (State v.
Lawrence Bell, A-1632-92T4). The Supreme Court denied
certification. See
145 N.J. 371 (1996).
Footnote: 2 Bell's rendition of the events, detailed in an unpublished
opinion by this court, are inconsistent with defendant's version.
While the events leading up to and including the victim's death
are almost identical, Bell implicates defendant as the one who
approached the victim, held the gun to her head, threatened to
shoot her, decided to rape her, and choked her to death. Bell
testified on his own behalf at trial and denied any involvement
in the sexual assault or murder.
Footnote: 3
For Georgia, see Lipham v. State,
364 S.E.2d 840 (Ga.),
cert. denied,
488 U.S. 873,
109 S. Ct. 191,
102 L. Ed.2d 160
(1988); for Kentucky, see Smith v. Commonwealth,
722 S.W.2d 892
(Ky. 1987); for Massachusetts, see Commonwealth v. Waters,
649 N.E.2d 724 (Mass. 1995); for Ohio, see State v. Whitsell,
591 N.E.2d 265 (Ohio Ct. App. 1990); for Tennessee, see State v.
Irick,
762 S.W.2d 121 (Tenn. 1988), cert. denied,
489 U.S. 1072,
109 S. Ct. 1357,
103 L. Ed.2d 825 (1989), and State v. Brobeck,
751 S.W.2d 828 (Tenn. 1988).
Footnote: 4For California, see People v. Davis,
896 P.2d 119 (Cal.
1995), cert. denied, ___ U.S. ___,
116 S.Ct. 932,
133 L.Ed.2d 859
(1996); People v. Rowland,
841 P.2d 897 (Cal. 1992), cert.
denied,
510 U.S. 846,
114 S. Ct. 138,
126 L.Ed.2d 101 (1993);
People v. Stanworth,
522 P.2d 1058 (Cal. 1974); for Kansas, see
State v. Perkins,
811 P.2d 1142 (Kan. 1991); for Maryland, see
Hines v. State,
473 A.2d 1335 (Md. Ct. Spec. App. 1984); for
Michigan, see People v. Hutner,
530 N.W.2d 174 (Mich. Ct. App.
1995); for Nevada, see Doyle v. State,
921 P.2d 901 (Nev. 1996);
for Oklahoma, see Rogers v. State,
890 P.2d 959 (Okla. Crim.
App.), cert. denied, ___ U.S. ___,
116 S. Ct. 312,
133 L.Ed.2d 215 (1995); for Pennsylvania, see Commonwealth v. Sundler,
436 A.2d 1376 (Pa. 1981).