SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-0061-97T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
WILLIAM DAVID JONES,
Defendant-Respondent.
______________________________________________________
Argued December 10, 1997 - Decided January 27, 1998
Before Judges Shebell, D'Annunzio and Coburn.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County.
Annmarie Cozzi and John J. Scaliti, Assistant
Prosecutors, argued the cause for appellant
(William H. Schmidt, Bergen County Prosecutor,
attorney; Ms. Cozzi and Mr. Scaliti, of counsel and
on the brief; John L. Higgins, III, Assistant
Prosecutor, of counsel).
David A. Ruhnke argued the cause for respondent
(Ruhnke & Barrett, attorneys; Jean deSales Barrett and
Mr. Ruhnke, on the brief).
The opinion of the court was delivered by
D'ANNUNZIO, J.A.D.
Pursuant to leave granted, the State appeals from pre-trial orders entered on August 5, 1997 in this capital murder prosecution under Bergen County Indictment No. S-1452-95. The orders (1) denied the State's application to permit it to use for impeachment purposes certain of defendant's statements to Officer Ziegler; (2) suppressed certain writings seized at defendant's
home pursuant to a search warrant; and (3) ordered the prosecutor
to examine the personnel files of its law enforcement witnesses
"for material relevant to credibility and to disclose information
relevant to credibility to the defense."
We also granted the State leave to appeal from an August 6
order barring the deputy medical examiner from "offering at trial
the opinions set forth in a supplemental report" and ordering
that, in the event "the Appellate Division [reverses] this
court's ruling . . . concerning the opinions set forth in [the
medical examiner's] supplemental report, there shall be separate
guilt and penalty phase juries empaneled in this matter."
Defendant William Jones is an African-American male, born in
September 1973, who lived in Leonia, New Jersey. On July 19,
1995, Sergeant O'Meara of the Leonia Police Department was
outside police headquarters when Jones approached him. O'Meara
knew Jones and Jones' mother because of their involvement in
community sports programs. As Jones approached, O'Meara noticed
that Jones was distraught, pale and "shaken up." As O'Meara
began to greet defendant, defendant said, "There's been a murder
here." O'Meara asked where and defendant said "168 Spring
Street." O'Meara then asked defendant whether he was okay and
defendant stated, "You don't understand, I'm the bad guy here."
As a result of this exchange, O'Meara told Jones to "Stop right
there." O'Meara then used a portable communication device and
called the dispatcher located in the police headquarters. He
told the dispatcher to send Detective Ziegler outside. Ziegler
emerged from the building, and O'Meara told him that "We may have
a murder here."
As O'Meara, Ziegler and Jones walked into the police
building, O'Meara asked whether an ambulance was needed.
Defendant said, "No, I'm pretty sure she's dead." Then defendant
said, "You'd better send the paramedics." O'Meara told the
communication's officer to dispatch the paramedics to 168 Spring
Street. O'Meara knew that to be defendant's home address.
O'Meara and another officer then left to go to the scene, leaving
only defendant, Ziegler and the communication's officer at
headquarters. O'Meara testified that defendant was not under
arrest and he was not handcuffed when O'Meara left police
headquarters to go to defendant's home. O'Meara further
testified that he did not interpret defendant's statement that he
was the "bad guy" as an admission of criminal involvement.
Officer Ziegler testified that he did not know Jones. When
O'Meara told Ziegler that defendant wanted to tell the police
about a murder, Ziegler gave it no credibility because the Leonia
police frequently received unfounded information from juveniles
about alleged crimes. However, when Ziegler noticed that
defendant was pale and shaking, Ziegler then believed that
defendant may have been a witness to a crime. O'Meara had not
told Ziegler about defendant's statement that he was the "bad
guy."
Ziegler and defendant then had the following conversation:
Ziegler: "Are you sure that she's dead?"
Defendant: "Yes."
Ziegler: "Well how do you know that she's dead?"
Defendant: "I checked."
Ziegler: "How did you check?"
Defendant: "I checked her breathing."
During this conversation, defendant, on overhearing a radio
communication, said: "Tell them that the front door is open and
that the body is in the basement." Ziegler then asked defendant
whether anyone else was in the house and defendant replied "no."
Ziegler asked defendant whether the victim was defendant's mother
and defendant said "no." Ziegler asked whether she was
defendant's girlfriend and defendant said, "No, she's just a
friend." Ziegler testified that he perceived some reluctance on
defendant's part to answer those questions. Ziegler then
testified:
I didn't know at this point whether I
was dealing with a witness now or whether I
was dealing with someone who may have had
some involvement, and needing to determine
one way or the other, I asked him, "I'm
starting to get the impression that you had
something to do with this, is that true?"
And at that point he sighed very heavily
looked down into his lap, nodded to me in the
affirmative. He looked back up and he said,
"All the evidence you need is in the
basement."
In response, Ziegler said, "Do you understand at this point that you are under arrest?" Defendant replied, "Yes, I know." Ziegler then handcuffed Jones to a chair and advised him of his
MirandaSee footnote 1 rights. Defendant stated, "I'd better get an
attorney," and Ziegler terminated the interview.
Sergeant O'Meara and other police officers arrived at 168
Spring Street at approximately 5:15 p.m. Having been informed by
Ziegler that defendant said that the evidence was in the
basement, O'Meara entered the empty house and made his way to the
cellar. At the bottom of the basement stairway, O'Meara saw a
large puddle of blood, a blood-soaked towel and sheet and organic
matter on the floor. According to O'Meara, the ceiling, walls
and furniture were covered with spattered blood. O'Meara also
observed a pitchfork and a pruning-type saw blade on the floor as
well as a blood-covered metal baseball bat near the stairway.
O'Meara followed a trail of blood leading to another
basement room where he observed a woman lying on her back on the
floor, face up with a plastic garbage bag over her head. The
woman was lying in a large pool of blood and her clothing was
bunched up around her chest. She was naked from the upper
abdomen to her ankles, socks and sneakers. Her underpants were
hanging off her upper left thigh. O'Meara secured the scene and
notified the prosecutor's office and the medical examiner. The
medical examiner, Maryann Clayton, M.D., arrived at the scene and
pronounced the victim dead. The victim was eventually identified
as A.K., age twenty-one.
Before we discuss the circumstances regarding the issuance and execution of the search warrant, we address the potential use of certain of defendant's statements to Ziegler in the event defendant testifies at trial. In a forty-five page written opinion, the trial court addressed a number of issues, including the admissibility of defendant's statements to O'Meara and Ziegler. The court determined that Miranda was not applicable to defendant's statements made to O'Meara on the street because defendant was not then in custody. The court ruled that custody began when defendant was escorted into the police headquarters, and that questions asked thereafter, constituted custodial interrogation requiring Miranda warnings. The court, however, relying on People v. Modesto, 398 P.2d 753 (Cal. 1965); People v. Dean, 114 Cal. Rptr. 555 (Ct. App. 1974); and People v. Willis, 163 Cal. Rptr. 718 (Ct. App.), cert. denied, 449 U.S. 877, 101 S. Ct. 222, 66 L. Ed.2d 99 (1980), applied the so-called "rescue doctrine" and held that statements made in the police department relating to defendant's checking of the victim's breathing and defendant's certainty that the victim was dead were admissible despite the absence of Miranda warnings. The court also ruled that Ziegler's asking whether anyone else was in the house also fell within this group and was, therefore, admissible because "Ziegler was most likely attempting to learn whether or not a third party had also been injured in the course of events that led to the reported death of the victim."
Due to the Miranda violation, the court, in its August 5
order, ruled inadmissible defendant's statement that "all the
evidence you need is in the basement" as well as defendant's
affirmative nod in response to the question "I'm starting to get
the impression you are involved in this, is this true?" The
court determined that defendant's statement, "Tell them that the
front door is open and that the body is in the basement," was
admissible because it was a volunteered statement and not the
result of an interrogation.
The State did not seek leave to appeal from the trial
court's determinations regarding the applicability of Miranda to
certain of the questions posed to defendant in the police
station. The State does challenge, and we granted leave to
appeal from, the court's determination that defendant's
affirmative nod to Ziegler's question as to whether defendant was
involved and defendant's statement that "all the evidence you
need is in the basement" were involuntary and, therefore, may not
be used by the State for impeachment purposes at trial if
defendant testifies. The court's determination in this regard
was not made in its written opinion but rather in an oral opinion
on July 22, 1997, after it had filed its written opinion. It
appears from its oral opinion that the court deemed the nod and
final statement as involuntary because it was satisfied that "it
dawned on Officer Ziegler in advance in that he was now
interrogating him for evidence to use against him."
On August 5, 1997, the trial court orally supplemented its
rationale, stating:
I thought that he [Ziegler] had
intimidated this witness somewhat. I found
that he was not candid. It was somewhat
self-serving. I clearly said it was not a
voluntary and freely given statement by
virtue of those statements. He was in
custody, I said. I also found that the
statements were not voluntary and not only
because he was in custody but because he
[Ziegler] kept asking him additional
questions, the detective, and I did not find
the rationale he used was sufficient for the
rescue. . . . That's why, because it was a
searching question, he was probing, it was
only going -- he was looking for additional
information to inculpate the defendant. So
it was not freely and voluntarily given.
A statement by a defendant taken without Miranda warnings or
in violation of the Fifth Amendment, nevertheless, may be used to
impeach defendant's testimony at trial. See Oregon v. Hass,
420 U.S. 714, 723,
95 S. Ct. 1215, 1223,
43 L. Ed.2d 570, 578 (1975)
(holding that defendant's statement, made after he had invoked
right to counsel, was admissible to impeach defendant's testimony
at trial, though not admissible on State's direct case); Harris
v. New York,
401 U.S. 222, 226,
91 S. Ct. 643, 646,
28 L. Ed.2d 1, 5 (1971) (ruling that statement made without Miranda warning
was admissible to impeach defendant's trial testimony); State v.
Burris,
145 N.J. 509, 529 (1996) (holding that defendant's
statement given after violations of his Fifth Amendment rights
and New Jersey's right against self-incrimination was admissible
for impeachment purposes).
To be admissible for impeachment purposes, however, the
statement must be trustworthy. Burris, supra, 145 N.J. at 534.
"Trustworthiness entails an examination of the voluntariness of
the statement. Voluntariness, in turn, depends on whether the
suspect's will was overborne and whether the confession was the
product of a rational intellect and a free will." Ibid. "The
State must prove the voluntariness of a confession beyond a
reasonable doubt." State v. Galloway,
133 N.J. 631, 654 (1993).
Although the trial court's rationale is not entirely clear,
the court apparently based its determination that defendant's
last two statements were involuntary primarily on its finding
that Ziegler had violated Miranda and had asked "probing"
questions seeking to inculpate defendant. That, of course, is
not the test. The test is whether a defendant's statement is
the product of an essentially free and
unconstrained choice by its maker? If it is,
if he has willed to confess, it may be used
against him. If it is not, if his will has
been overborne and his capacity for self-determination critically impaired, the use of
his confession offends due process.
[Schneckloth v. Bustamonte,
412 U.S. 218,
225-26,
93 S. Ct. 2041, 2047,
36 L. Ed.2d 854, 862 (1973) (citation omitted)].
Relevant factors in determining voluntariness are the length of defendant's detention, the characteristics of the interrogation, whether defendant was advised of his constitutional rights, defendant's age and intelligence, and whether defendant endured physical punishment or mental exhaustion. Id. at 226; see also Galloway, supra, 133 N.J. at
654. Defendant did not testify at the hearings below and the
testimony of O'Meara and Ziegler was uncontradicted. Cf. Miller
v. Fenton,
474 U.S. 104, 110,
106 S. Ct. 445, 449,
88 L. Ed.2d 405, 411 (1985) (holding that the issue of "voluntariness" of a
confession "is a legal question requiring independent federal
determination."); State v. Contursi,
44 N.J. 422, 428 (1965)
(where facts are established the determination of probable cause
involves only the application of law).
Applying these principles, it has been held that a one-hour
interrogation during which the police used psychological tactics,
implied promises of mental health treatment, and deception, did
not render a murder confession involuntary. Miller v. Fenton,
796 F.2d 598, 612-13 (3rd Cir. 1986). State v. Galloway, supra,
involved the death of a three-month old child from child abuse.
After several hours of interrogation at the police station by two
detectives, defendant repudiated his first exculpatory statement
and gave an inculpatory statement. Defendant's confession
resulted, in part, from a detective's statement that the doctors
had to know how the baby had been injured to treat him. The
Court characterized this tactic "as a deliberate act of deception
to secure a confession." 133 N.J. at 653. In upholding the
voluntariness of the confession, the Court stated that "use of a
psychologically-oriented technique during questioning is not
inherently coercive," id. at 654, and observed that "[c]ases
holding that police conduct had overborne the will of the
defendant have typically required a showing of very substantial
psychological pressure on the defendant." Id. at 656 (citations
omitted). See also Burris, supra, 145 N.J. at 536-39 (holding
that statement made during six-hour interrogation not the product
of overborne will); State v. Bey,
112 N.J. 123, 134-35 (1988)
(ruling that confession made as the result of three hours of
interrogation during nine hours of custody was not involuntary).
In the present case, we begin with the fact that defendant
approached the police, who at the time were unaware of the
murder. Defendant volunteered information to O'Meara regarding
the crime, including the information that he was "the bad guy."
All the statements defendant made to O'Meara and Ziegler were
made within ten minutes of defendant's approaching O'Meara.
Defendant was not handcuffed or physically restrained in any way.
There was no evidence that the police used physical or mental
abuse, or engaged in a well-planned, well-orchestrated
interrogation. To the contrary, the police were caught by
surprise and were obviously improvising in an attempt to
determine whether a crime had been committed, the nature of the
crime, the identity of the victim, whether there were other
victims or persons at risk, and defendant's role and the source
of his knowledge.
With the exception of the absence of Miranda warnings, found
by the trial court to have been required, the record indicates
that the police behaved impeccably. As soon as Ziegler had
probable cause to believe that defendant was criminally involved,
Ziegler advised defendant of his Miranda rights and honored
defendant's request for a lawyer by concluding the interview.
In Galloway, supra, the Court, in analyzing the
voluntariness issue, stated that "[t]he real issue is whether the
person's decision to confess results from a change of mind rather
than from an overbearing of the suspect's will." 133 N.J. at
655. In the present case, Jones approached the police to report
the crime and to confess his guilt. There is no evidence in the
record to support the trial court's conclusion regarding
voluntariness. Accordingly, the court's ruling that defendant's
statements were involuntary is reversed.
On July 20, 1995, at 1:00 a.m., approximately eight hours after the police found A.K.'s body, Senior Investigator Frank Kelleher of the Bergen County Prosecutor's Office filed a written application for a warrant to search defendant's home at 168 Spring Street. The application recited the conversations among defendant, Sergeant O'Meara and Detective Ziegler, with the exception of defendant's statement that the victim was his friend, and described finding the victim's body in the basement. The application then provided the issuing judge with the following information:
The partially nude body of the white female was lying face up, in the western room of the basement, near the boiler. The head was covered with a grey, plastic garbage bag. The victim had on a dark blue T-shirt and a light blue colored shirt, which was pushed up just beneath the breast area. The victim was nude from the waist down, a ripped pair of
pink underwear was draped around her left
thigh, exposing her vaginal area, indicating
that she also may have been a victim of an
aggravated sexual assault. The victim was
wearing blue socks and white sneakers.
Dr. Clayton pronounced the victim dead
at approximately 7:02 p.m., on July 19, 1995.
Preliminary observations of the victim
indicated numerous puncture wounds to the
head, neck and facial areas, and blunt force
trauma to the front of the skull of the
victim.
I observed laying next to the victim on
the floor a plastic, clip-on photo
identification tag for Chilton Memorial
Hospital. I looked at this photo
identification tag to see if the victim's
name was on it, and found it to contain, in
type, the following: [A.K.], R.N. The photo
contained on the identification tag resembled
the victim. Patrolman Desimone, Dr. Clayton
and I then proceeded to exit the basement
area. As we reached the foot of the stairs,
I observed a white canvas bag with a set of
car keys lying on top of it. I viewed the
keys closely and observed a car key, silver
and black, with the name Subaru on the key.
We then exited the residence.
Upon exiting the residence, I observed a
green Subaru parked facing north on the west
side of Spring Street, in the vicinity
between 168 Spring Street and the next
residence located north of 168 Spring Street.
I observed the registration of this vehicle
to be N.J. Reg. CT677G. I then ran a
Division of Motor Vehicles check on this
registration and found that the vehicle was
registered to [C.K.], [address]. I then ran
a Division of Motor Vehicles check on the
name [C.K.] and found a [C.K.] possessing a
valid New Jersey driver's license for the
above address, having a date of birth of
1/31/45.
I then ran a Division of Motor Vehicles
check on the name [A.K.], which revealed an
[A.K.] possessing a valid New Jersey driver's
license for [address], having a date of birth
of 8/11/73.
Superior Court Judge Jonathan Harris issued the warrant
based on Kelleher's application. The warrant authorized the
police to search for the following items:
Any weapons or instruments which may have
been used to inflict the wounds on the
victim's body. Any paperwork, including
letters, papers or other writings that may
establish a motive for the crime of homicide
and/or a relationship between the victim and
the suspect, and any paperwork or other
materials which establish identity,
photographs, fingerprints, blood, hairs,
fibers, saliva and seminal fluid or other
trace evidence; clothing and footwear that
may contain hair, blood, fibers and any other
trace evidence related to the victim, the
suspect or the homicide scene; defendant's
fingerprints, photographs, fingernail
clippings and scrapings, blood samples, and
head, body and public hair samples and
genital and foot swabbings from the suspect
to compare to any samples found at the crime
scene and/or on or in the victim's body, as
well as any other instrumentalities and
paraphernalia used in connection with or in
furtherance of the commission of a crime or
which are evidence of the commission of a
crime in violation of the Laws of the State
of New Jersey, to wit: 2C:11-3, Murder; and
2C:14-2a, Aggravated Sexual Assault.
[Emphasis added.]
The police executed the search warrant and, among other things, seized from the basement and the third-floor of defendant's home five hundred fifty-four pages of handwritten and typed writings. The writings included an unpublished "novel," essays and other miscellaneous writings. Some of them support an inference that defendant was obsessed with red-haired, Jewish women and violence towards women. The victim had red hair and
was Jewish. The writings refer to murder, rape, decapitation and
torture.
The motion judge first addressed the issue of probable
cause. He stated that the issue "is not whether the issuing
judge could, pursuant to common sense, reasonably believe that
certain items might be found in a particular place, but, whether
that judge was presented with facts supporting probable cause to
believe that those items would be found." Applying this test,
the court stated that it "cannot comfortably conclude that the
affidavit . . . provided satisfactory probable cause to believe
that the defendant's home harbored writings of the type described
in the application."
The court also concluded that the warrant did not describe
with sufficient particularity the writings which the police were
authorized to search for and seize. In so concluding, the court
placed particular emphasis on First Amendment considerations
relying on Stanford v. Texas,
379 U.S. 476,
85 S. Ct. 506,
13 L.
Ed.2d 431 (1965). Accordingly, the court suppressed all of
defendant's writings. We now reverse.
The motion judge used an improper standard in reviewing a
warrant issued by another Superior Court Judge and applied the
wrong test of probable cause. In State v. Kasabucki,
52 N.J. 110
(1968), the Court reversed an order suppressing evidence seized
pursuant to a search warrant. The Court discussed the concept of
probable cause and described it as "a flexible, nontechnical
concept." Id. at 116. The Court noted that probable cause "has
been construed to signify less evidence than would be required to
establish guilt of the crime for which the warrant is sought,"
and that "[i]t is a suspicion of guilt that is well-grounded; a
reasonable basis for a belief that a crime has been or is being
committed." Ibid. (citations omitted). Although Kasabucki was
decided almost thirty years ago, the definition of probable cause
has not changed. See State v. Novembrino,
105 N.J. 95, 120
(1987); State v. Reldan,
100 N.J. 187, 196 (1985).
The United States Supreme Court discussed probable cause at
length in Illinois v. Gates,
462 U.S. 213,
103 S. Ct. 2317,
76 L.
Ed.2d 527 (1983). The Court described probable cause as "a
fluid concept -- turning on the assessment of probabilities in
particular factual contexts -- not readily, or even usefully,
reduced to a neat set of legal rules." Id. at 232, 103 S. Ct. at
2329, 76 L. Ed.
2d at 544. The Court noted that "[f]inely-tuned
standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials, have no
place in the magistrate's decision." Id. at 235, 103 S. Ct. at
2330, 76 L. Ed.
2d at 546. The Court summarized the
responsibility of the issuing judge:
The task of the issuing magistrate is simply
to make a practical, common-sense decision
whether, given all the circumstances set
forth in the affidavit before him, including
the "veracity" and "basis of knowledge" of
persons supplying hearsay information, there
is a fair probability that contraband or
evidence of a crime will be found in a
particular place.
[Id. at 238, 103 S. Ct. at 2332,
76 L. Ed 2d
at 548 (emphasis added).]
The Court held that this determination is to be made based on the
"totality of the circumstances" presented to the issuing judge.
Ibid.
In Kasabucki, supra, the New Jersey Supreme Court described
the process in similar terms, emphasizing the special perspective
of trained and experienced law enforcement personnel. The Court
stated:
When a police officer seeking a search
warrant presents the basis therefor in
affidavit form to a judge for evaluation on
the issue of probable cause, the judge's
approach must be a practical and realistic
one. The officer's statements must be looked
at in a common sense way without a grudging
or negative attitude. There must be an
awareness that few policemen have legal
training and that the material submitted to
demonstrate probable cause may not be
described with the technical nicety one would
expect of a member of the bar. Moreover, the
judge should take into account the
specialized experience and work-a-day
knowledge of policemen. State v. Contursi,
44 N.J. 422, 431 (1965). The facts asserted
must be tested by the practical
considerations of everyday life on which
reasonably prudent and experienced police
officers act. Brinegar v. United States,
supra, 338 U.S. at p. 175,
69 S. Ct. 1302, 93
L. Ed. at p. 1890.
[52 N.J. at 117.]
The opinions in Kasabucki and Gates also defined the limited role of a reviewing court. In Kasabucki, the Court required a reviewing trial court to "pay substantial deference" to the issuing judge's determination. Ibid. It observed that "another trial judge of equal jurisdiction should regard as binding the decision of his brothers that probable cause had been
sufficiently shown to support a warrant, unless there was clearly
no justification for that conclusion." Ibid.
To encourage police to resort to search warrants rather than
warrantless searches and to submit to the superintendence of a
neutral judicial officer, the Court in Gates confirmed the narrow
role of a reviewing court:
Similarly, we have repeatedly said that
after-the-fact scrutiny by courts of the
sufficiency of an affidavit should not take
the form of de novo review. A magistrate's
"determination of probable cause should be
paid great deference by reviewing courts."
Spinelli, supra, 393 U.S. at 419,
21 L. Ed.2d 637,
89 S. Ct. 584, "A grudging or
negative attitude by reviewing courts toward
warrants," Ventresca, 380 U.S. at 108,
13 L.
Ed.2d 684,
85 S. Ct. 741, is inconsistent
with the Fourth Amendment's strong preference
for searches conducted pursuant to a warrant;
"courts should not invalidate . . .
warrant[s] by interpreting affidavit[s] in a
hypertechnical, rather than a commonsense,
manner." Id. at 109,
13 L. Ed.2d 684,
85 S.
Ct. 741.
[Gates, supra, 462 U.S. at 236, 103 S. Ct.
at 2331, 76 L. Ed.
2d at 547.]
In the present case, the motion judge ruled that probable cause did not exist to search for papers and writings to establish a motive or a relationship between defendant and the victim. In so ruling, the motion judge determined that the facts presented in support of the warrant application had to establish a likelihood that those items would be found. This requirement is contrary to the United States Supreme Court's rejection of "[f]inely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence," Gates, supra, 462 U.S. at
235, 103 S. Ct. at 2330, 76 L. Ed.
2d at 546, and violates the
preferred standard of "fair probability." Id. at 238, 103 S. Ct.
at 2332, 76 L. Ed.
2d at 548.
Although Investigator Kelleher's affidavit did not inform
Judge Harris, the issuing judge, that defendant had admitted to
Officer Ziegler that the victim was his friend, Judge Harris
fairly could have inferred that defendant and the victim had a
social relationship. Defendant and the female victim were of
similar age. The police found the victim's handbag in the
basement with her car keys neatly placed on top of it. The
victim's car was parked on defendant's street near defendant's
home, and the crime occurred in defendant's home. These facts
suggest that the victim was a visitor at defendant's home; they
are inconsistent with an inference that defendant had selected
A.K. at random and had compelled her to accompany him to his
house.
Kelleher also presented evidence to Judge Harris that A.K.
had been assaulted sexually, that blood was spattered on the
"walls, ceiling and furniture . . . indicating a struggle had
taken place," and that the victim had sustained "numerous
puncture wounds to the head, neck and facial areas, and blunt
force trauma to the front of the skull of the victim."
Marshalling those facts, and taking into account the remorse
which motivated defendant to approach the police, it was
inferable that A.K.'s death was a crime of passion or rage
suggesting a fractured personal relationship.See footnote 2 Considering the
"specialized experience and work-a-day knowledge of policemen"
and "the practical considerations of everyday life on which
reasonably prudent and experienced police officers act,"
Kasabucki, supra, 52 N.J. at 117, it was a fair probability that
defendant's house contained writings, by defendant or by A.K.,
relevant to and defining their relationship.
Additionally, we detect in the motion judge's approach the
"grudging or negative attitude by reviewing courts toward
warrants," criticized by the Supreme Court, Gates, supra, 462
U.S. at 236, 103 S. Ct. at 2331, 76 L. Ed.
2d at 547, and a
failure to give great deference to Judge Harris' determination of
probable cause. In doing so, the motion judge ignored the
Supreme Court's advice that the preference for police to resort
to a warrant requires that "in a doubtful or marginal case a
search under a warrant may be sustainable where without one it
would fall." United States v. Ventresca,
380 U.S. 102, 106,
85 S. Ct. 741, 744,
13 L. Ed.2d 684, 687 (1965).
We also observe that the issue before Judge Harris was
limited to whether there was probable cause to believe that
defendant's home contained relevant evidence in addition to the
evidence in the basement. Whether a crime had been committed was
not an issue. At issue was the breadth of the warrant and not
whether any warrant should have issued. We addressed a "breadth"
issue in State v. Sheehan,
217 N.J. Super. 20 (App. Div. 1987).
There, a warrant to search a multiple-occupancy single family
house was issued based on evidence that investigators had
purchased drugs from Jeffrey Till, an occupant of the house. The
drug transactions had occurred in Till's bedroom. The warrant
authorized a search of the entire premises. The searchers found
drugs in Till's bedroom, in a bedroom occupied by defendant James
Sheehan and in the kitchen. James Sheehan's sister, Florence
Sheehan, owned the house. We held that there was probable cause
to search the entire house though the drug activity which
supported the search had occurred only in Till's bedroom. Id. at
27-28.
Similarly, in Reldan, supra, the Supreme Court held that the
vacuuming of a car did not exceed the scope of a warrant to
search it for evidence connecting defendant to multiple
burglaries. The vacuuming produced human hairs linking defendant
with two murders unrelated to the burglaries. The Court's
analysis of the breadth of the warrant and the scope of the
search is instructive:
Here, the warrant authorized the search
for numerous items of personal property, as
well as evidence relating to the alleged
crimes. Presumably none of the items of
stolen property was so minuscule as to
require a vacuum to retrieve it. On the
other hand, as the State points out, the
vacuum could have been effective in
retrieving small particles of jewelry that
may have broken off -- for example, backs of
earrings, clasps of necklaces, and small
gems. In addition, the vacuum could
appropriately have been used to uncover other
evidence of the break and entries, such as
soil particles, debris, paint chips and the
like. The application for the search warrant
recited adequate facts to demonstrate
probable cause and specifically requested
judicial authorization to search defendant's
automobile for criminal evidence relating to
the "break and entry . . . including but not
limited to, fingerprints, implements used to
commit the break and entries, . . . and
anything else of evidentiary value that a
complete and thorough search might disclose."
(Emphasis added.) Consequently, it does not
appear that a search consisting of the
retrieval by the use of a vacuum of debris
from the floor of an automobile in connection
with the execution of a search warrant
directed to evidence of household burglaries
exceeded the scope of the warrant either as
to the areas searched or items sought.
[Reldan, supra, 110 N.J. at 196.]
In the present case, the warrant was more specific and defined
with more particularity than the warrant in Reldan the nature of
the papers and writings to be searched for and seized.
The motion judge's reliance on the First Amendment and
Stanford v. Texas, supra, is misplaced. Stanford involved a
warrant to search for and seize "any books, records, pamphlets, .
. . pictures, recordings or any written instruments showing that
a person or organization is violating or has violated any
provision" of the Texas Suppression Act which outlawed the
Communist Party. The officers executing the warrant seized books
and pamphlets comprising 300 separate titles including works by
"Karl Marx, Jean Paul Sartre, Theodore Draper . . . Pope John
XXIII, and Mr. Justice Hugh L. Black." 379 U.S. at 479-80, 85 S.
Ct. at 509, 13 L. Ed.
2d at 434. The Court held that the warrant
constituted a general warrant prohibited by the Fourth Amendment
because it lacked particularity regarding the things to be
seized. The Court based its conclusion on the fact that "it was
not any contraband . . . which was ordered to be seized, but
literary material . . . ," id. at 486, 85 S. Ct. at 512, 13 L.
Ed.
2d at 437, noting that the "constitutional requirement that
warrants must particularly describe the `things to be seized' is
to be accorded the most scrupulous exactitude when the `things'
are books, and the basis for their seizure is the ideas which
they contain." Id. at 485, 85 S. Ct. at 511-12, 13 L. Ed.
2d at
437. See also State v. Muldowney,
60 N.J. 594, 601 (1972)
(observing that "[t]he danger inherent in a general warrant is
magnified in cases which invovle freedom of expression protected
by the First Amendment.").
In the present case the motion judge purported to apply
Stanford's "scrupulous exactitude" test. In this respect the
motion judge erred by not appreciating the difference between the
seizure of writings to suppress them and the seizure of writings
for use as evidence. The Supreme Court articulated that
distinction in Heller v. New York,
413 U.S. 483, 492,
93 S. Ct. 2789, 2794-95,
37 L. Ed.2d 745, 754 (1973). See also New York
v. P.J. Video, Inc.,
475 U.S. 868, 873-75,
106 S. Ct. 1610, 1614-15,
89 L. Ed.2d 871, 879-80 (1986). We recognized the
distinction in State v. Tunnel Citgo Servs.,
149 N.J. Super. 427
(App. Div. 1977), a prosecution for failure to pay motor fuel
taxes. Pursuant to a warrant, the State seized defendant's
business records. In an attempt to suppress the evidence,
defendants relied on Stanford v. Texas, supra. We rejected
Stanford's applicability because "it concerned First Amendment
rights," Tunnel Citgo Servs., supra, 149 N.J. Super. at 432, and
the "test of particularity . . . is much more strict when First
Amendment rights are involved. . . ." Ibid.
We conclude that the scrupulous exactitude test did not
apply in the present case and that the warrant was as specific as
the circumstance allowed.See footnote 3 Id. at 431. The warrant limited the
searching officers' discretion because it authorized only the
seizure of writings that had a tendency to establish a motive,
identity and a relationship between defendant and the victim.
See Muldowney, supra, 60 N.J. at 600 (noting that a warrant is
sufficiently definite if the "officer executing it can identify
the property sought with reasonable certainty."); see also
Andresen v. Maryland,
427 U.S. 463, 479-80,
96 S. Ct. 2737, 2748,
49 L. Ed.2d 627, 642-43 (1976) (holding that a warrant
authorizing a search for evidence relevant to the crime of false
pretense regarding a specified lot in a real estate development
satisfied the particularity test).See footnote 4
Dr. Clayton, the Deputy Medical Examiner, performed a post-mortem examination of the victim on July 20, 1995. The initial
report is dated July 20, 1995 and consists of thirteen pages.
The report describes Dr. Clayton's findings on physical
examination of the victim's body, the most dramatic of which were
multiple skull and facial fractures and stab wounds of the face
and neck, which Dr. Clayton described as stab wounds A through P.
Dr. Clayton concluded that the cause of death was "multiple blunt
and sharp force injuries of head and neck," and that the manner
of death was "homicide."
Subsequently, Dr. Clayton submitted a supplemental report in
which she rendered opinions regarding the instruments used by the
perpetrator to cause the various injuries. Dr. Clayton noted
"two separate full-thickness lacerations of the back of the head
which are indicative of blunt force injuries and are consistent
with a cylindrical object impacting the head, such as a baseball
bat." Dr. Clayton observed that the "skull is fractured and the
mid-occipital dura is lacerated." In her opinion, "these
injuries would not necessarily be instantaneously fatal."
In her supplemental report, Dr. Clayton discussed an
irregular laceration of the forehead which she opined was
consistent with a minimum of three to four multiple blunt force
impacts to the area. She stated that "the underlying skull is
shattered and there are depressed skull fragments of the left
frontal and left temporal bones, one of which is displaced
posteriorly. The frontal dura is shredded and the frontal lobes
of the brain are lacerated." Dr. Clayton stated that the facial
bones were fractured. She concluded that these wounds are "most
consistent with respective positions of the subject and assailant
as follows: the subject in a supine position, struck from above
by an assailant who is facing her. . . . The force required to
inflict these injuries is severe in nature and despite the
magnitude of the injuries sustained, the subject's death would
not necessarily be instantaneous."
Dr. Clayton then discussed the sharp force injuries of the
head and neck. She opined that "wounds A through G are stab
wounds consistent with the pitchfork." She noted that a black
fragment of metal, irregularly shaped, was recovered from the
tissues around the left jugular vein. She also opined that
wounds H through P were sharp force injuries "consistent with a
combination of the pitchfork and saw or maybe a product of the
saw exclusively." She noted that hemorrhaging in the
subcontaneous tissue on the left side of the neck was "consistent
with some blood pressure in the vessels at the time of the
injury, therefore implying that the subject was alive at the time
the sharp force injuries were inflicted."
In her concluding paragraph of the supplemental report, Dr.
Clayton stated:
Finally, in my opinion, the blunt force
injuries were inflicted before the sharp
force injuries. Such sequelae of the blunt
force injuries include a scalp and temporalis
muscle hemorrhages and subarachnoid and
cortical contusion hemorrhages of the brain.
These are vital reactions to injury. The
sharp force injuries of the left side of the
face and neck also exhibit subcutaneous
hemorrhages indicative of a vital reaction.
However, the abrasions and cuts of the right
infraclavicular region involve the skin and
right pectoralis muscle and there is no
hemorrhage in the right pectoralis muscle,
indicating a post-mortem injury.
The motion judge ruled that Dr. Clayton would not be permitted to testify regarding the opinions she expressed in her supplemental report because those opinions were not relevant to any issue in the case and their potential for prejudice exceeded any probative value those opinions might have. The motion judge expressed particular concern regarding Dr. Clayton's conclusion that A.K. was still alive when the perpetrator inflicted the saw wounds. He reasoned that such an opinion would be relevant only if the State were relying on aggravating factor 4(c) in seeking the death penalty, N.J.S.A. 2C:11-3c(4)(c), i.e., that the "murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim." Ibid. The State had not identified 4(c)
as an aggravating factor, relying instead on aggravating factors
4(f) and (g). They provide:
(f) The murder was committed for the purpose
of escaping detection, apprehension, trial,
punishment or confinement for another offense
committed by the defendant or another;
(g) The offense was committed while the
defendant was engaged in the commission of,
or an attempt to commit, or flight after
committing or attempting to commit murder,
robbery, sexual assault, arson, burglary or
kidnapping.
[N.J.S.A. 2C:11-3(c)(4)(f) and (g).]
We now reverse. As the State points out, medical opinions regarding the implements causing death, distinguishing between wounds as the cause of death, the sequence of wounds infliction, and the body position of victim and perpetrator are commonly admitted. See State v. Chew, 150 N.J. 30, 87-88 (1997) (medical examiner testifies that crisscross scratches on face of victim "were made while [the victim] was `either restrained or certainly not moving . . . [and] were deliberate.'"); State v. Marshall, 123 N.J. 1, 34 (1991) cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993) (based on nature and position of bullet wounds, pathologist opines that victim was lying down with her left arm under her body); State v. Hightower, 120 N.J. 378, 388-89 (1990) (medical examiner offers opinion as to sequence of shots based on wounds sustained by victim); State v. Russo, 243 N.J. Super. 383, 406 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991) (medical examiner opines that victim moved between the
first and second time he was shot and that he was on his knees
and leaning somewhat forward between the two shots).
We do not, however, rest our reversal of the motion judge's
order solely on general grounds of historic admissibility. The
State has the burden of proving all the elements of capital
murder beyond a reasonable doubt. N.J.S.A. 2C:1-13a; N.J.S.A.
2C:2-2a and b(1) and (2). The State must carry its burden on its
direct case or suffer a judgment of acquittal. If a defendant
remains silent and presents no evidence, the State will not have
an opportunity during cross-examination or on rebuttal to
supplement its evidence.
In the present case the State must prove that defendant "did
by his own conduct, purposely or knowingly cause the death or
serious bodily injury resulting in the death of [A.K.]" as
charged in the First Count of the indictment, the capital murder
count. The indictment also charges defendant with two counts of
non-capital felony murder, in violation of N.J.S.A.
2C:11-3a(3), based on allegations that defendant caused A.K.'s
death in connection with the crime of sexual assault, Second
Count, and aggravated sexual assault, Third Count. The Fourth
Count charges aggravated sexual assault "through the use of
physical force or coercion, the victim sustaining severe personal
injury" contrary to N.J.S.A. 2C:14-2a(6). The Fifth Count
charges defendant with possession of certain weapons, an aluminum
bat, pitchfork and a saw, with purpose to use them unlawfully
against the person of another.
At trial the jury will hear testimony and see evidence
tending to establish that three implements may have been involved
in A.K.'s death: a bat, a pitchfork and a saw. The autopsy also
established two types of injury: blunt force trauma to the head
and sharp force injuries to the head and neck. Dr. Clayton's
supplemental report allocates these injuries to each of the three
implements. Only the saw contained a fingerprint identified as
defendant's. Thus, Dr. Clayton's opinions that the skull
fracture and resulting brain injury "would not necessarily" cause
instantaneous death and that the victim was alive when the saw
injuries were inflicted are highly probative. If credited by the
jury, those opinions support a finding that the saw, which direct
evidence placed in defendant's hand, contributed to A.K.'s death.
Such a finding is important to the State's capital case because
the State must establish that defendant "committed the homicidal
act by his own conduct." N.J.S.A. 2C:11-3c.
Dr. Clayton's opinion that the weapons were used serially,
that the bat was used first, that A.K. was still alive after the
bat attack, and that sharp force injuries were then inflicted, is
also probative regarding the actor's intent, i.e., whether it was
a purposeful or knowing killing. Moreover, in the event
defendant requests and is entitled to a jury instruction
regarding lesser included offenses such as aggravated
manslaughter, N.J.S.A. 2C:11-4a, and reckless manslaughter,
N.J.S.A. 2C:11-4b(1), Dr. Clayton's opinion regarding the injury
and weapon sequence "has substantial probative value . . . in
establishing that defendant acted with the necessary culpability,
i.e., `extreme indifference to human life,' that distinguishes
aggravated manslaughter from reckless manslaughter." State v.
Crumb,
277 N.J. Super. 311, 318 (App. Div. 1994). Additionally,
evidence that each of the three implements inflicted wounds is
probative regarding the Fifth Count charging possession of each
implement with a purpose to use them unlawfully. N.J.S.A. 2C:39-4d.
Dr. Clayton's opinion that A.K. was struck by the bat from
above while she was in a supine position also suggests a
purposeful or knowing killing, and would blunt any suggestion
that the victim was an aggressor.
The order precluding use of Dr. Clayton's supplemental
report also provided "there shall be separate guilt and penalty
phase juries empaneled in this matter" if this court reverses the
order precluding the supplemental report. We now reverse that
element of the order.
The capital murder statute provides that the sentencing
proceeding
shall be conducted by the judge who presided
at the trial and before the jury which
determined the defendant's guilt, except
that, for good cause, the court may discharge
that jury and conduct the proceeding before a
jury empaneled for the purpose of the
proceeding.
[N.J.S.A. 2C:11-3c(1).]
In State v. Ramseur, 106 N.J. 123 (1987), the Court, in ruling that the "death qualification" of jurors in a capital case
was constitutional, discussed the good cause exception to the
single-jury scheme. The Court stated:
We cannot agree with the concurring
opinion's suggestion that avoidance of a jury
prone to convict in the guilt phase may
constitute "good cause" for empanelling a new
sentencing jury within the meaning of Section
c(1). Such an interpretation would mean that
"good cause" for empanelling a new jury would
exist in most if not practically all death
penalty cases. The language of the statute
and its legislative history clearly
demonstrate, however, that the Legislature
intended the "good cause" provision to be
reserved for the exceptional, not the
ordinary, case. See Capital Punishment Act:
Hearings on S.112 Before the N.J. Senate
Judiciary Comm., 200th Leg., 2nd Sess.
(1982). Nor are we free, as the concurring
opinion suggests, to require post-guilt death
qualification pursuant to our common-law
supervisory powers over the administration of
criminal justice. The Legislature has spoken
in this area, explicitly requiring that
generally the same jury must decide both
guilt and sentencing. Absent a
constitutional basis, this Court is not
empowered to override the Legislature's
determination.
[Id. at 252 n.56.]
In State v. Biegenwald,
126 N.J. 1 (1991), the Court
identified a category of cases which are an exception to the
rule. Aggravating factor (4)(a) is that "the defendant has been
convicted at any time, of another murder." N.J.S.A. 2C:11-3
c(4)(a). The Court ruled that if the State relies on this factor
a defendant must be permitted to question potential jurors about
the impact of the prior murder on their ability to be fair and
impartial. Biegenwald, supra, 126 N.J. at 42-43. The Court held
that
our finding that defendant is entitled to
voir dire potential jurors on the possible
blinding impact of the c(4)(a) factor most
likely will require a two-jury system for all
capital cases in which the State seeks to
prove that factor. That is because
aggravating factor c(4)(a), unlike all other
aggravating factors, is proved by evidence
not generally admissible during the [guilt
phase of the trial.]
[Id. at 43-44.]
See also State v. Moore,
113 N.J. 239, 277 (1988) (stating that
trial court may have to empanel new jury for penalty phase if
court believes that limiting instructions would be insufficient
to protect defendant from the impact of other crimes evidence
introduced during guilt phase).
In the present case, we have concluded that Dr. Clayton's
testimony regarding the supplemental report should not have been
ruled inadmissible during the guilt phase. That evidence does
not present the problem addressed in Biegenwald, i.e., evidence
admissible only in the penalty phase prejudicing defendant in the
guilt phase. We are persuaded, therefore, that this record does
not present the exceptional case warranting a deviation from the
Legislature's preference for a single jury. Moreover, even if
the evidence poses a risk of undue prejudice in the penalty
phase, thereby justifying a second jury for the penalty phase,
making that decision before completion of the guilt phase is
premature.
The last issue involves the order compelling the "prosecutor to examine the personnel files of its law enforcement witnesses
for material relevant to credibility and to disclose information
relevant to credibility to the defense." We now reverse.
The United States Supreme Court has held that "the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment . . . ." Brady v.
Maryland,
373 U.S. 83, 87,
83 S. Ct. 1194, 1196-97,
10 L. Ed.2d 215, 218 (1963); see also State v. Carter,
91 N.J. 86, 110-11
(1982) (applying Brady). Thus, Brady requires "disclosure only
of evidence that is both favorable to the accused and `material
either to guilt or to punishment.'" United States v. Bagley,
473 U.S. 667, 675,
105 S. Ct. 3375, 3379,
87 L. Ed.2d 481, 489
(quoting Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196, 10 L.
Ed.
2d at 218). Impeachment evidence, as well as exculpatory
evidence, falls within the Brady rule. Bagley, supra, 473 U.S.
at 676, 105 S. Ct. at 3380, 87 L. Ed.
2d at 490; Carter, supra,
91 N.J. at 111.
A prosecutor has a duty to learn of "any favorable evidence
known to others acting on the government's behalf in the case,
including the police." Kyles v. Whitley,
514 U.S. 419, 437,
115 S. Ct. 1555, 1567,
131 L. Ed.2d 490, 508 (1995). This includes
information known to other members of the prosecutor's office or
other agencies cooperating in the criminal investigation. See
e.g., State v. Landano,
271 N.J. Super 1, 31, 41-42 (App. Div.)
(discussing state's failure to disclose police officer's
handwritten notes that might have exculpated defendant), certif.
denied,
137 N.J. 164 (1994); State v. Engel,
249 N.J. Super. 336,
396 (App. Div.) (indicating that the knowledge of one member of
the prosecutor's office is to be imputed to another in a Brady
context), certif. denied,
130 N.J. 393 (1991).
The extent of a prosecutor's duty to learn of evidence
favorable to the accused varies among the federal circuit courts.
The State points out that the Third, Sixth, and Seventh Circuits
have ruled that a defendant's request for discovery of materials
from files outside the prosecutor's file, such as the personnel
records of police officers, cannot be based on mere speculation
that a government file might contain Brady material. See, e.g.,
United States v. Driscoll,
970 F.2d 1472, 1482 (6th Cir. 1992),
cert. denied,
506 U.S. 1083,
113 S. Ct. 1056,
122 L. Ed.2d 362
(1993) (holding that a mere speculative claim by defendant was
not sufficient); United States v. Andrus,
775 F.2d 825, 843 (7th
Cir. 1985) (holding that defendant was not entitled to personnel
files "without even a hint" that impeaching material was
contained within them, and noting that "[a] due process standard
which is satisfied by mere speculation would convert Brady into a
discovery device and impose an undue burden upon the . . .
court"); United States v. Navarro,
737 F.2d 625, 630-31 (7th
Cir.), cert. denied,
469 U.S. 1020,
105 S. Ct. 438,
83 L. Ed.2d 364 (1984) (holding that "[m]ere speculation that a government
file may contain Brady material is not sufficient to require" in
camera inspection).
The Third Circuit, in United States v. Joseph,
996 F.2d 36,
41 (3d Cir.), cert. denied,
510 U.S. 937,
114 S. Ct. 357,
126 L.
Ed.2d 321 (1993), noted that reading Brady to require
prosecutors to search collateral files on a defendant's general
request
would place an unreasonable burden on
prosecutors for it is one thing to require
honest searches, reasonable in scope, of
unrelated files for specific identifiable
information, but quite another thing to send
prosecutors on open-ended fishing
expeditions.
[Ibid.]
In the present case, the motion judge substantially based
his ruling on the Ninth Circuit's holding in United States v.
Cadet,
727 F.2d 1453 (9th Cir. 1984). In Cadet, the Ninth
Circuit stated:
In response to a request for exculpatory
evidence the prosecution does not have a
constitutional duty to disclose every bit of
information that might affect the jury's
decision; it need only disclose information
favorable to the defense that meets the
appropriate standard of materiality. If the
prosecution is uncertain about the
materiality of information within its
possession, it may submit the information to
the trial court for an in camera inspection
and evaluation.
[Id. at 1467-68 (citations omitted) (quoting
United States v. Gardner,
611 F.2d 770, 774-75
(9th Cir. 1980).]
The issue of defendant's access to police personnel records was addressed in State v. Kaszubinski, 177 N.J. Super. 136 (Law Div. 1980). In Kaszubinski, defendant was in