(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).
Argued September 23, 1998 -- Decided July 30, 1998
O'HERN, J., writing for a majority of the Court.
A jury convicted Ambrose Harris of raping and murdering Kristin Huggins and sentenced him to
death. Harris appeals as of right, arguing that the trial court failed to take measures to assure that the trial
was free from the outside influence of prejudicial publicity. The central issues raised are whether the trial
court should have granted Harris' motion to transfer the case for trial outside the county where the crime
was committed, and whether the court should have questioned jurors individually concerning their exposure
to prejudicial midtrial publicity.
Kristin Huggins disappeared while driving to paint a mural in downtown Trenton on the morning of
December 17, 1992. Huggins' car was discovered on December 18, 1992, but police were unable to locate
her.
On February 18, 1993, Gloria Dunn went to the police with her sister and told police that she knew
where Huggins' body was. Dunn led the police to Huggins' badly decomposed body and gave police a
statement identifying Harris as the killer. She gave them several additional statements containing a number
of inconsistencies and additions over the next year and a half.
On June 8, 1994, Harris was indicted for purposeful or knowing murder by his own conduct,
kidnapping, and robbery, among other charges. The State served a notice of aggravating factors as a basis
for the death penalty, alleging that the murder was committed in the course of a felony, N.J.S.A. 2C:11-3c(4)(g), and for the purpose of escaping detection, N.J.S.A. 2C:11-3c(4)(f).
One of defendant's pretrial motions, based on massive pretrial publicity in the Trenton area, was for
a change of venue or, alternatively, empaneling a jury from a county other than Mercer. The trial court
denied the motion for a change of venue but agreed to empanel a jury from Hunterdon County. The
Appellate Division granted Harris' motion for leave to appeal and held that the trial court should consider
the racial makeup of the county from which jurors would be drawn. It held that the trial court erred in
choosing a pool of jurors from Hunterdon County, which has a small minority population. On remand, the
trial court selected Burlington County as the county from which jurors would be selected, rejecting Harris'
suggestion that Camden County be used.
The guilt phase began on January 10, 1996. The jury reached a verdict on February 20, 1996.
Dunn's testimony provided the only direct evidence linking Harris to the crime. Dunn testified that she was
with Harris when he hijacked Huggins' car, forced Huggins into the trunk, and later raped and shot her in a
deserted area along Route 1 in Trenton. Dunn claimed that Harris threatened he would come looking for
her if she told anyone what had occurred. She also claimed that Harris' threats and her fear of being
implicated in the crime prevented her from going to the police immediately.
The gun that a ballistics expert later linked to the crime was seized from Harris during an unrelated
arrest on December 27, 1992. Harris' nephew connected Harris to the gun, testifying that Harris had it on
the night of the murder. Because Huggins' body was so badly decomposed, DNA and forensic evidence
regarding the sexual assault was inconclusive.
Harris did not testify during the trial. He attacked the credibility of the State's witnesses, seeking to
convince the jury that those witnesses, not he, were actually responsible for the murder and were attempting
to frame him. The defense pointed out the inconsistencies in Dunn's testimony and prior statements. It
stressed Dunn's involvement in the crime, her failure to attempt to escape or seek help for Huggins, and her
long delay in notifying police. The defense emphasized the reduction in charges that Dunn had received in
exchange for her testimony (the felony murder charge was dismissed, leaving kidnapping and robbery with a
maximum sentence of 30 years with 15 years of parole ineligibility). Finally, the defense emphasized Dunn's
desire to get the $25,000 reward money as her motive to implicate Harris.
At the conclusion of the guilt phase, the jury convicted Harris on all counts and found that he had
killed Huggins by his own conduct.
During the penalty phase, the State presented no new evidence to support the aggravating factors of
escaping detection and felony murder. Harris sought to submit 180 mitigating factors to the jury, all related
to various aspects of his childhood and the abuse that he had suffered during that period. The trial court
consolidated those "factors" into one factor with "180 supporting points." The defense presented its evidence
through three experts -- a mitigation expert, a child psychologist, and a psychiatrist. The evidence revealed
that defendant came from a dysfunctional family, that his father abused Harris' mother and soon abandoned
them, and that Harris was unwanted and neglected by his mother. Harris was diagnosed as mentally
retarded, and one expert stated that he should not have been allowed to remain in his dysfunctional home.
At the conclusion of the penalty phase, the jury found the existence of both aggravating factors and
the sole consolidated mitigating factor. It concluded that the aggravating factors outweighed the mitigating
factor beyond a reasonable doubt and that Harris should be sentenced to death.
HELD: The selection of a jury composed of out-of-county residents and the trial court's general questioning
of the jurors during trial concerning any exposure to trial publicity sufficiently ensured that Harris' trial was
free of extraneous influences. The Court finds no other errors that tainted Harris' trial.
1. There was no error in the trial court's decision to empanel a foreign jury rather than to transfer venue.
In future capital cases, however, a court should change the venue if there is a realistic likelihood that
presumptively prejudicial publicity will continue during trial. The trial court's decision to select a jury from
Burlington County instead of Camden County made little difference, given that the racial demographics of
the counties were similar and the trial court took firm steps to ensure that potential jurors had not been
exposed to the prejudicial publicity. The trial court's general questioning of the jurors about exposure to
prejudicial publicity during the trial was adequate. Individualized questioning is not required absent some
evidence of exposure to the publicity. Because the overnight activities of the jurors did not pose a threat of
taint and because there was no indication of actual exposure, it was not necessary to sequester the jury. (Pp.
14-36)
2. The other trial errors complained of by Harris do not warrant reversal. (Pp. 36-96)
The convictions and sentence of death are AFFIRMED.
JUSTICE STEIN filed a separate opinion concurring in part and dissenting in part, expressing the
view that the midtrial publicity compromised Harris' right to a fair penalty phase of the trial. He would
affirm the convictions but would remand for a new penalty phase.
JUSTICE HANDLER filed a separate dissenting opinion expressing the view that Harris' claims of
error are valid, their prejudicial impacts thwarted a fair trial, and Harris' convictions should be reversed and
the death sentence vacated.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK and GARIBALDI join in JUSTICE
O'HERN's opinion. JUSTICE STEIN filed a separate opinion concurring in part and dissenting in part, in
which JUSTICE COLEMAN joins. JUSTICE HANDLER filed a separate dissenting opinion which
JUSTICES STEIN and COLEMAN join as to part IC.
SUPREME COURT OF NEW JERSEY
A-
17 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AMBROSE A. HARRIS,
Defendant-Appellant.
Argued September 23, 1997 -- Decided July 30, 1998
On appeal from the Superior Court, Law
Division, Mercer County.
Frank J. Pugliese and Donald T. Thelander,
Assistant Deputies Public Defender, argued
the cause for appellant (Ivelisse Torres,
Public Defender, attorney).
Nancy A. Hulett, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
O'HERN, J.
In his concurring opinion in State v. Allen,
73 N.J. 132,
146 (1977), Justice Pashman described a similar case as one
involving "the interplay between two of our most basic
constitutional guarantees -- free speech and fair trial -- which
are also, as Mr. Justice Black correctly noted, `two of the most
cherished policies of our civilization.'" Id. at 146 (quoting
Bridges v. California,
314 U.S. 252, 260,
62 S. Ct. 190, 192,
86 L. Ed. 192, 201 (1941)).
In this capital case a jury has convicted defendant of the
murder of Kristin Huggins and recommended that he be sentenced to
death. Pervasive media publicity surrounded the conduct of the
trial. In Sheppard v. Maxwell,
384 U.S. 333,
86 S. Ct. 1507,
16 L. Ed.2d 600 (1966), the Supreme Court held that
[d]ue process requires that the accused
receive a trial by an impartial jury free
from outside influences. Given the
pervasiveness of modern communications and
the difficulty of effacing prejudicial
publicity from the minds of the jurors, the
trial courts must take strong measures to
ensure that the balance is never weighed
against the accused. And appellate tribunals
have the duty to make an independent
evaluation of the circumstances.
[Id. at 362, 86 S. Ct. at 1522, 16 L. Ed. at
620.]
Defendant contends that he was denied a fair trial because
the court did not "take strong measures" to assure that his trial
was free from the outside influence of prejudicial publicity.
Central issues raised in his appeal are (1) whether the trial
court should have granted defendant's motion for a change of
venue, that is, whether it should have transferred the case for
trial outside the county where the crime was committed, and (2)
whether, because of recurring prejudicial publicity during the
course of the trial, the court should have questioned jurors
individually concerning their exposure to such midtrial
publicity. We find that the measures taken by the trial court,
the selection of a jury composed of out-of-county residents, and
its general questioning of the jurors during the trial concerning
any exposure to trial publicity sufficiently ensured that
defendant's trial was free of extraneous influences. We find no
other errors that tainted his trial. We affirm the convictions
for murder and other crimes found and affirm the sentence of
death. Proportionality review will take place in later
proceedings.
Because in cases involving the death penalty a trial court's
responsibility under both the federal and state constitutions is
to "minimize the danger that prejudice will infiltrate the
adjudicatory process," State v. Williams,
93 N.J. 39, 63 (1983)
(Williams I), we hold that when hereafter there is a reasonable
likelihood that the trial of a capital case will be surrounded by
presumptively prejudicial media publicity (as that phrase is
understood in the law) the court should transfer the case to
another county. Other devices, such as restraints against the
publication of material concerning the trial or the sequestration
of jurors, have proven either to be unavailable to counter the
effects of continuing prejudicial publicity or to produce a
contrary effect than desired. In some cases a court may conclude
that an initial tide of inherently prejudicial publicity will
have subsided at time of trial and will not require a change of
venue if the jury selection process yields an impartial jury.
E.g., State v. Koedatich,
112 N.J. 225, 273-82 (1988), cert.
denied,
488 U.S. 1017,
109 S. Ct. 813,
102 L. Ed.2d 803 (1989)
(Koedatich I). When, however, a court is satisfied that there is
a reasonable likelihood of the continuing recurrence at a capital
trial of presumptively prejudicial publicity that might
infiltrate the trial, a change of venue is required.
On December 17, 1992, Kristin Huggins left her parents' home in Bucks County, Pennsylvania, to paint a mural at the Trenton Club, in downtown Trenton. She was driving a red Toyota sports car. Huggins never returned home. According to the State's case, Ambrose Harris, with the aid of Gloria Dunn, raped and killed Huggins in the course of a carjacking and robbery.
Police discovered Huggins' car on December 18, 1992, but were unable to locate her. In the later stages of the investigation, witnesses informed the police that defendant had been seen driving a red Toyota with Pennsylvania plates on the night of Huggins' disappearance. One witness, Tariq Ayres, told the police that Harris said he had "knocked off some white girl" and "hijacked" the car. Another witness reported that Harris had a wallet containing an ATM (automatic teller machine) card and a driver's license with Huggins' picture on it. An ATM video showed defendant attempting to make a $400 cash withdrawal from Huggins' account on that night.
On February 18, 1993, Gloria Dunn went to the police with her sister, Eleanor Williams, and told the police that she knew where Huggins' body was, claiming at first that the two had found the body by following Williams' "psychic vision." They asked about reward money.
Dunn led the police to Kristin Huggins' badly decomposed body. That same day, she gave the police a statement about the murder. Over the next year and a half, Dunn provided the police with several additional statements containing a number of inconsistencies and additions. Of greatest significance, she waited a year and a half to inform the police about defendant's having raped Huggins. When she did inform the police about the rape, she lied about the circumstances.
On June 8, 1994, a Mercer County Grand Jury indicted defendant for purposeful or knowing murder by his own conduct, felony murder, kidnapping, robbery, aggravated sexual assault, possession of a handgun for an unlawful purpose, and various theft offenses. The State served a notice of aggravating factors as a basis for the death penalty, alleging that the murder was committed in the course of a felony, N.J.S.A. 2C:11-3c(4)(g), and for the purpose of escaping detection, N.J.S.A. 2C:11-3c(4)(f).
Defendant filed a number of pretrial motions, several of which were appealed to the Appellate Division on an interlocutory basis. A significant pretrial motion, based on massive pretrial publicity in the Trenton area, was for a change of venue or, in the alternative, empanelment of a jury from a county other than Mercer. The trial court denied the motion for a change of venue but agreed to empanel a jury from Hunterdon County. Both parties sought leave to appeal. The State contended that an out-of-county jury was unnecessary. Defendant argued that Camden County was the proper juror source.
The Appellate Division granted leave to appeal and held that defendant was entitled to an out-of-county jury and that the trial court should consider the racial makeup of the county from which jurors would be drawn. State v. Harris, 282 N.J. Super. 409, 419 (1995). On that basis, the Appellate Division held that the trial court had erred in choosing a pool of jurors from Hunterdon County, which has a small minority population. Id. at 420. On remand, after denying defendant's request to reconsider the motion for a change of venue, the trial court selected Burlington County as the county from which jurors would be selected, rejecting defendant's suggestion that Camden County be used.
Defendant also moved for closure of the trial, for exclusion of his criminal record if he were to testify, and for separate guilt-phase and penalty-phase juries. The court denied those motions. The court did limit media photographs of defendant in order that shackles did not appear.
Jury selection occurred between October 10, 1995, and January 3, 1996. Defendant made several motions during voir dire (the process of questioning of potential jurors), relating principally to the court's termination of attorney-conducted voir dire, the court's limitation on inquiry into the racial attitudes of prospective jurors, and death-qualification. The trial court refused to delay the voir dire further to consider these motions. The Appellate Division, taking an interlocutory appeal on an emergency basis, affirmed that refusal, but one member of the appellate panel expressed concern at oral argument about the scope of the voir dire on racial bias. The trial court thereafter questioned more extensively concerning racial bias.
After voir dire was complete, the trial court denied defendant's motions to dismiss the entire jury panel because of the allegedly faulty selection process, to reconsider various other pretrial issues raised, and to increase juror security in order to protect the jury from pervasive publicity, which included newspaper headlines displayed prominently at courthouse newsstands.
The guilt phase began on January 10, 1996. The jury reached its verdict on February 20, 1996. Dunn's testimony provided the only direct evidence linking defendant to the crime. From the evidence a jury could have found the following facts. Dunn and defendant met several months before the murder and had spoken on several occasions thereafter. Harris offered to give her drugs and to "pop" an ex-boyfriend who was giving her trouble.
In late November 1992, defendant asked Dunn to take part in a holdup. She hesitated at first but agreed to participate in return for a part of the proceeds, which she intended to use to buy drugs for resale. The two agreed to meet at 8:00 a.m. on December 17. Harris came on a bicycle. He had a gun in his possession. He decided to "carjack" someone so that he and Dunn would not have to walk through the rain to the luncheonette they planned to rob. The two took a route through downtown Trenton at a time when many employees were arriving for work.
Dunn asked defendant what he was going to do with the people who were in the car he carjacked. According to Dunn, defendant said he would "tie them up and leave them somewhere" if they were black. He said he would kill them if they were white.See footnote 1 Dunn claimed to want no part of a murder but to have remained because she feared defendant.
As the two passed the Trenton Club on West State Street, they saw a young woman drive a red Toyota into the parking lot. Harris said, "I'm going to get that bitch." He followed on his bicycle to the rear of the driveway, leaving Dunn in the front area. Dunn did not leave because she feared for herself and for the woman. Defendant returned, driving the car with Huggins in the passenger seat. Dunn was "relieved" that Huggins was then unhurt.
Harris told Dunn to get into the car. Huggins sat on Dunn's lap. Dunn tried to calm Huggins, but defendant told Dunn to shut up. He drove to a deserted area under the Southard Street Bridge, near Route 1 and Perry Street in Trenton. He asked Huggins how to open the front trunk of the car. Harris forced Huggins into the trunk because he feared that the image of a white woman riding in a two-seated sports car with a black man and woman would create suspicion.
With Huggins in the trunk, Harris drove to West End Avenue and parked. He then walked back to the Trenton Club to recover the bicycle. Two club employees saw defendant walk to the rear of the parking lot at 9:15 a.m. and return with a bicycle. Harris drove the car back to the Southard Street area. He had Huggins get out of the trunk. Defendant then raped Kristin, ignoring her cries for mercy. After the rape, defendant put Huggins back in the trunk but then decided to kill her. He opened the trunk and shot her in the back of the head as she climbed out of the trunk. He placed the body under a mattress located a short distance from the car.
Harris went to his mother's home to get a shovel. When he returned, he planned to shoot Huggins again. Dunn asked him why he was doing it, since Huggins was already dead. Defendant said he wanted to make sure, and he shot Huggins in the face. Defendant dug a shallow grave in which he and Dunn buried Kristin's body. Dunn also testified that defendant took thirty dollars and an ATM card from Huggins' wallet. Dunn claimed that she did not get any of the cash.
Harris threatened to "come looking" for Dunn if she told anyone about what had occurred. Dunn claimed that his threats prevented her from going to the police immediately, as did her fear of being implicated in the crimes herself. When news of Huggins' disappearance appeared on the television news, Harris called Dunn to say, "That white bitch is on the news."
Several pieces of physical evidence linked defendant to the crimes. The gun that a ballistics expert later linked to the crime was seized from defendant during an unrelated arrest on December 27, 1992. Defendant's nephew further connected defendant to the gun. The nephew bought the gun for his own protection and then gave it to defendant before the murder. The nephew also testified that defendant had the gun on the night of the murder. Finally, Dunn identified the gun as the murder weapon. Because Kristin's body had so badly decomposed, DNA and forensic evidence regarding the sexual assault was inconclusive. Defendant did not testify during the trial. He attacked the credibility of the State's witnesses, seeking to convince the jury that those witnesses, not he, were actually responsible for the murder of Kristin Huggins and that they were attempting to frame him. Although his defense was not entirely consistent, his major goal was to cast doubt on Dunn's version of defendant as principal and Dunn as accomplice. He thus came close to admitting his presence during the crime, while pointing to Dunn as triggerperson. That distinction had death-eligibility consequences. According to N.J.S.A. 2C:11-3c, one who kills by his own conduct is death eligible.
Defendant attacked Dunn's credibility, pointing out the various inconsistencies in Dunn's testimony and statements to the police. He stressed her involvement in the crimes, her failure to attempt to escape or to seek help for Huggins when presented with the opportunity, and her long delay in notifying the police. Defendant also emphasized the reduction in charges that Dunn had received in exchange for her testimony against defendant,See footnote 2 the allegedly leading nature of the questioning by the police when Dunn gave her statement on October 5, 1994, and the State's failure to investigate fully whether Dunn, not defendant, was the one who pulled the trigger. Defendant sought to introduce evidence of Dunn's violent disposition in order to rebut her claim that she feared him and to cast doubt on his status as triggerman. The trial court, however, excluded the evidence. Defendant challenges that exclusion.
Defendant specially emphasized Dunn's desire to get the $25,000 reward money as her motive to implicate Harris. At trial, Dunn denied ever having been interested in obtaining a reward for leading authorities to the body and to defendant, but parts of her testimony and the testimony of various police officers demonstrated that she and her sister repeatedly inquired about the reward. She explained her inquiries about the reward as a strategy to lead the police to the body without incriminating herself.
Defendant also attacked the credibility of the young men who gave evidence, all of whom had either been involved with drugs, had criminal records, had motives to seek favor with prosecutors, or had lied to the police. Defendant presented testimony that one of the men had shown off a gun similar to the murder weapon sometime in December and stated that he had plans for the gun. Certain of the witnesses had been seen driving Huggins' car without defendant. One had Huggins' Blockbuster Video card. Defendant also elicited testimony that the police had not compared hair found in the car with the hair of the witnesses.
At the conclusion of the guilt phase, the jury convicted defendant on all counts and found that he had killed Huggins by his own conduct.
During the penalty phase, the State presented no new evidence to support the aggravating factors that it had submitted, the escape-detection and felony-murder factors. Nor did the State rebut defendant's mitigating evidence beyond cross-examination.
Defendant sought to submit 180 mitigating factors to the jury, all related to various aspects of his childhood and the abuse that he had suffered during that period. The trial court consolidated those "factors" into one factor with 180 supporting points. Defendant challenges that "deflation" of his mitigating evidence.
Defendant presented his evidence through three experts--a mitigation expert, a child psychologist, and a psychiatrist. The evidence revealed that defendant came from a dysfunctional family. His mother had been abused by her father and had married, when she became pregnant, a man whom she did not love--a man who abandoned her and their child. She raised a child whom she did not want and whom she neglected. She and a new boyfriend often abused Harris physically. Defendant was exposed to sexual activity in the home. A neglected child, he was soon involved in violent and sexual activity. He was hospitalized and placed on "Thorazine" (a mood elevator) and diagnosed as mentally retarded. He began to experiment with drugs.
A defense expert expressed the opinion that because of defendant's neglected and violent life, his problems at school, his experience at the mental hospital, and his self-perception as being mentally retarded, he harbored "rage against women." Harris should have been classified at age thirteen as having a "severe conduct disorder." A witness said that defendant should not have been allowed to remain in his dysfunctional home and that he should have been placed in a structured residential facility where he could get intensive psychiatric treatment for his mental illness. The witness also testified that defendant's poor treatment by school officials contributed to his problems. Another defense expert concurred that defendant suffered from a conduct disorder stemming from biological, psychological, and social causes and that he should have been removed from the "squalor" of his home. He stated that "[i]f I were trying to write a book about how not to raise a child during those years, I would [have the parents] do everything that was done to him."
At the conclusion of the penalty phase, the jury found the existence of both aggravating factors and the sole consolidated mitigating factor. It also concluded that the aggravating factors outweighed the mitigating factor beyond a reasonable doubt and that Harris should be sentenced to death. Defendant appeals to us as of right under Rule 2:2-1(a)(3).
Motion to Transfer Trial From Mercer County
Defendant challenges his conviction on the ground that
prejudicial pretrial and midtrial publicity in Mercer County
undermined his right to trial by a fair and impartial jury, a
right guaranteed to criminal defendants by the state and federal
constitutions. U.S. Const. amend. 14; N.J. Const. art. 1, ¶ 10;
see Williams I, supra, 93 N.J. at 59-62. Justice Stein set forth
a concise account of the relevant principles in State v. Bey,
112 N.J. 45 (1988) (Bey I):
"The securing and preservation of an
impartial jury goes to the very essence of a
fair trial. * * * [This right] is of
exceptional significance. * * * [T]riers of
fact must be as nearly impartial `as the lot
of humanity will admit.'" "It is axiomatic
that a criminal defendant's right to a fair
trial requires that he be tried before a jury
panel not tainted by prejudice." "[F]ailure
to accord an accused a fair hearing violates
even the minimal standards of due process."
Of particular significance here is that
aspect of impartiality mandating "that the
jury's verdict be based on evidence received
in open court, not from outside sources." As
expressed by Justice Holmes, "[t]he theory of
our system is that the conclusions to be
reached in a case will be induced only by
evidence and argument in open court, and not
by any outside influence, whether of private
talk or public print." . . . The Court has
consistently required trial courts to protect
both jurors and their deliberations from
illegitimate influences that threaten to
taint the verdict. [T]rial judges must "seek
out and expose outside factors impinging upon
the jury's freedom of action and its
impartiality and essential integrity."
[Bey I, supra, 112 N.J. at 75 (citations
omitted).]
Before applying these principles, we digress to examine
important differences in four related concepts: (1) media
publicity that is inherently prejudicial; (2) media publicity
that is presumed to prejudice a fair trial; (3) the federal
standard for reversing a state court conviction, and (4) the
state standard for ordering a change of venue.
Obviously, not all publicity about a crime is prejudicial to
an accused. Some news accounts may simply report that charges
have been made and include an outline of facts alleged in the
indictment. Other types of media publicity, however, are
prejudicial to fair trial rights because the publicity is
inherently prejudicial or inflammatory.
Several types of publicity fall into this
category. The [perfect example] is a report
of a confession or of other significant
evidence that is suppressed or otherwise
inadmissible. Closely related are reports of
important factual details that the defendant
will actively seek to dispute at trial. Also
included are emotionally charged editorials.
This category [of inherently prejudicial
publicity] further encompasses prejudicial
accounts of the defendant's criminal history,
particularly when such accounts are
inaccurate.
[Newcomb v. State,
800 P.2d 935, 939 (Alaska
Ct. App. 1990).]
Our cases have described such publicity as "presumptively prejudicial." Koedatich I, supra, 112 N.J. at 351. It is preferable to refer to the type of such media publicity described in Newcomb as "inherently prejudicial" publicity in order to distinguish such publicity from publicity that is "presumptively prejudicial" to fair trial rights. The latter concept describes a torrent of publicity that creates a carnival-like setting in which "the trial atmosphere is so corrupted by publicity that prejudice may be presumed." State v. Biegenwald, 106 N.J. 13, 33 (1987) (Biegenwald II). In Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed.2d 589 (1975), the Supreme Court described the cases in which prejudice may be presumed. In such cases,
the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings. . . . The trial in Estes [,for example,] had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment. Similarly, Sheppard arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.
[Id. at 799, 95 S. Ct. at 2035-36, 44 L. Ed.
2d at 594.]
Cases of presumed prejudice due to pretrial publicity are
"relatively rare and arise out of the most extreme
circumstances." Koedatich I, supra, 112 N.J. at 269. Coleman v.
Kemp,
778 F.2d 1487 (11th Cir. 1985), cert. denied,
476 U.S. 1164,
106 S. Ct. 2289,
90 L. Ed.2d 730 (1986) offers an example
of the analysis that is required to reach the conclusion that the
"presumed prejudice" standard may be invoked. In Coleman, the
community had been saturated with prejudicial and inflammatory
pretrial publicity and an insufficient effort had been made to
root out jurors exposed to the publicity.
The doctrine of "presumed prejudice" arising from massive
and pervasive publicity is one of two tests currently prescribed
by the federal courts to demonstrate that fair trial rights have
been infringed. The other is a test for "actual prejudice."
If prejudicial pretrial publicity makes it
impossible to seat an impartial jury, then
the trial judge must grant the defendant's
motion for a change of venue. The prejudice
requirement will be satisfied by a finding
of: (1) presumed prejudice; or (2) actual
prejudice.
"Prejudice is presumed when the record
demonstrates that the community where the
trial was held was saturated with prejudicial
and inflammatory media publicity about the
crime." Courts rarely find presumed
prejudice because "saturation" defines
conditions found only in extreme situations.
Actual prejudice exists if the jurors
demonstrated actual partiality or hostility
that cannot be laid aside. "[J]urors need
not, however, be totally ignorant of the
facts and issues involved."
[Jeffries v. Blodgett,
5 F.3d 1180, 1189 (9th
Cir. 1993) (citations omitted), cert. denied,
510 U.S. 1191,
114 S. Ct. 1294,
127 L. Ed.2d 647 (1994).]
According to the Ninth Circuit, trial courts must grant a
defendant's motion for a change in venue if either test is met.
Ibid. And federal habeas corpus relief is warranted if a state
trial court has failed to comply with the rule. See ibid. The
federal standard for reversal of a state court conviction should
not, however, be confused with the state standard for granting a
change of venue. See United States v. Houlihan,
926 F.Supp. 14,
16 n.3 (D. Mass. 1996) (observing that "the [supervisory]
threshold for unacceptable prejudicial publicity triggering a
change in venue may well be lower than the constitutional
standard"). New Jersey Rule 3:14-2 authorizes a change of venue
or trial by a foreign jury "if the court finds that a fair and
impartial trial cannot otherwise be had." Our law respecting
motions for a change of venue in capital cases was initially
considered in Williams I, supra,
93 N.J. 39. It was further
developed in Biegenwald II, supra,
106 N.J. 13, and in Bey I,
supra,
112 N.J. 45. In Biegenwald II the Court observed that
under the former test set forth in State v. Wise,
19 N.J. 59, 73-74 (1955), which required clear and convincing proof that an
impartial jury could not be obtained in the county where the
indictment took place, few defendants succeeded in obtaining a
change of venue. Biegenwald II, supra, 106 N.J. at 33.
Accordingly, in Williams I, the Court modified the defendant's
burden, conferring on trial courts the discretion to change venue
when it is "necessary to overcome the realistic likelihood of
prejudice from pretrial publicity." Williams I, supra, 93 N.J.
at 67 n.13.
The newspaper ran many front-page, invective-filled headlines: "Ex-Inmate: Suspect is a Loudmouthed Punk," "Huggins Suspect `Would Kill You in a Heartbeat,'" "Profile of a Monster: The Man Who Killed Kristin Huggins Committed His First Rape as a Teenager," "From Boy to Beast," "Huggins Slayer Terrorizes Prison," "He's Satan in Disguise." Other news accounts discussed the defendant's prior criminal record as well as other crimes he was suspected of committing. An editorialist predicted that death by lethal injection would rid society of "one of the biggest pieces of human trash ever to blight Trenton streets." A sample of the accounts is attached as Schedule A.
Based on the content of the newspaper coverage and the paper's editorial stance, the trial court concluded that Ambrose Harris "was no longer the subject of a news story, but rather the target of the newspaper's crusade." The court concluded that the pretrial publicity met the federal standard of "presumed prejudice." In its decision affirming the importation of foreign jurors the Appellate Division observed that such coverage had continued unabated, even during the oral argument of the interlocutory appeal. That event generated a full-page headline: "Justice for Kristin Delayed Again." State v. Harris, supra, 282 N.J. Super. at 415.
The reason that we do not reverse defendant's conviction is that the trial court agreed with defendant that there was a realistic likelihood of prejudice from prejudicial trial publicity and used one of the trial management techniques specifically approved to ensure that a defendant's right to an impartial jury is not compromised. We said in Biegenwald II:
In criminal cases attended by widespread and inflammatory publicity, various trial management techniques can be employed to assure that the defendant's right to an impartial jury is not compromised. One available option is a change in venue. Other means of protecting the defendant's constitutional rights include the use of searching voir dire examinations, the impaneling of "foreign jurors" to augment the pool of eligible jurors in the vicinage, adjournment of the trial date, and restraints on public comments by participants in the trial.
[Biegenwald II, supra, 106 N.J. at 32
(emphasis added).]
In fact, the empanelment of foreign jurors was the first trial
management technique that Williams I suggested to combat the
effects of preexisting prejudicial pretrial publicity. The Court
said: "The court should explore the feasibility of augmenting
the pool of eligible jurors in the vicinage, and should consider
the practicability of using citizens from beyond the particular
vicinage to serve as potential jurors, the use of so-called
`foreign jurors.' Similarly, a change of trial venue may help to
overcome the risk of prejudice." Williams I, supra, 93 N.J. at
67 (emphasis added).
In the footnote to its opinion, the Williams I Court
observed that "a change of venue has the same benefits and
drawbacks as the impanelling of a foreign jury since both methods
utilize jurors from communities where publicity may be less
intense." Id. at 67 n.13. In order to "facilitate" the
empanelment of foreign juries, the court held that the number of
peremptory challenges should not be reduced if a foreign jury was
chosen by the court in the exercise of its sound discretion. Id.
at 67 n. 12. In short, every intendment of our law was that the
empanelment of a foreign jury be an adequate response to the
realistic likelihood that the jury would be subjected to adverse
trial publicity.
Hence, we find no error in the trial court's decision to empanel a foreign jury rather than to transfer venue. When, however, a capital case is accompanied by a stream of public invective such as surrounded this case, it occasions us to reconsider our precedent.
In analyzing this conflict between free press and fair trial rights, we take guidance from Justice Jackson. He wrote:
The right of the people to have a free press is a vital one, but so is the right to have a calm and fair trial free from outside pressures and influences. Every other right, including the right of a free press itself, may depend on the ability to get a judicial hearing as dispassionate and impartial as the weakness inherent in men will permit.
[Craig v. Harney,
331 U.S. 367, 394-95,
67 S.
Ct. 1249, 1263,
91 L. Ed. 1546, 1561 (1947)
(Jackson, J., dissenting).]
In an ideal world a free press would seek to foster fair trial
rights by not circulating inherently prejudicial publicity at
least during a time of trial. See Fred W. Friendly & Martha J.
H. Elliott, The Constitution: That Delicate Balance 148 (1984).
If this cannot be so, courts must guarantee the preservation of
fair trial rights without any restraint of the editorial freedom
of the press. We long ago made the choice that "free speech is
the national currency." Maressa v. New Jersey Monthly, 89 N.J.
176, 201, cert. denied,
459 U.S. 907,
103 S. Ct. 211,
74 L. Ed.2d 169 (1982).
In future capital cases a court should change the venue of a
capital trial when there is a realistic likelihood that
presumptively prejudicial publicity will continue during the
conduct of a trial. Presumptively prejudicial publicity is
recognized as a barrage of inflammatory reporting that may but
need not include all of the following: evidence that would be
inadmissible at the trial, editorial opinions on guilt or
innocence, and media pronouncements on the death-worthiness of a
defendant. We realize that this respect for a free press imposes
an added expense and inconvenience on the State and the victims
of crime. The alternatives, sequestration of jurors or gag
orders on the press, have proven unacceptable. See generally
Allen, supra,
73 N.J. 132.
Selection of a Burlington County Jury
In his initial motion for a change of venue, Harris asked
the trial court to select Camden County as the place for trial
because of the county's relative proximity to Mercer County, the
minimum circulation of newspapers containing prejudicial
publicity, and because the racial makeup of the county's
population (its demographics) was nearly the same as Mercer
County. Initially, the court rejected Camden County as a
transfer site or source for a jury because it was not one of the
counties contiguous to Mercer County and because there was no
legal authority requiring the court to consider the racial makeup
of the alternate jury pool in its decision. The court considered
the two contiguous counties of Hunterdon and Burlington. It
chose Hunterdon because the two Trenton newspapers (the Times and
the Trentonian) had a combined Burlington County circulation of
approximately 20,000, split fairly evenly between the two. The
circulation of the two Trenton newspapers in Hunterdon County was
about 3,000 daily, of which some 1,200 were of the Trentonian.
After the Appellate Division determined that racial
demographics should be considered by the court and that the trial
court had erred in refusing to consider Camden County merely
because it was not contiguous to Mercer County, Harris again
urged the selection of Camden County based upon publicity and the
demographic considerations. Camden County, like Mercer County,
consisted of an urban center surrounded by rural areas with a
sixteen percent African-American population. At most, 250 copies
of the Trentonian circulated in Camden County. In contrast,
Burlington County consisted of largely rural areas with an
African-American population of only fourteen percent.
The trial court concluded that the racial demographics of
the counties were virtually identical and that the circulation of
the Trenton newspapers in Burlington County was not large enough
to prejudice defendant. Relying upon the considerations of
proximity and efficiency, it chose Burlington County as the
source for selection of the jury.
Defendant finds it to be a paradox that although the
relatively large local circulation of the Trenton papers had
motivated the trial court to reject Burlington County in the
first instance (Hunterdon's circulation of 3,000 having been
preferable to Burlington's circulation of 22,000), when required
by the Appellate Division to reconsider, the court chose
Burlington County over Camden even though the circulation figures
were more widely disparate: Burlington's 22,000 copies compared
with Camden's 250. The trial court held that the extent of news
coverage in Burlington County should not be decisive because even
if the case were tried "on the Ross Ice Shelf [in Antarctica], it
would generate publicity. There is no way to avoid that."
Defendant argues that because the goal is to "minimize the
danger that prejudice [from extensive pretrial publicity] will
infiltrate the adjudicatory process," Koedatich I, supra, 112
N.J. at 268 (quoting Williams I, supra, 93 N.J. at 63), the most
effective method of minimizing the potential was to select a jury
from a county which was outside of the circulation range of the
Trenton newspapers.
Defendant would prevail if the court had taken no other
steps to minimize the danger that prejudice would infiltrate the
adjudicatory process. The court took firm steps to ensure that
none of those households that received the Trentonian (the
newspaper containing the most inflammatory material) would be on
this jury. A questionnaire specifically inquired whether a
potential juror had read the Trenton newspapers. Any juror who
regularly read the Trentonian was effectively subject to
elimination for cause in the jury selection process. In
addition, the court ensured that during the course of the trial
most jurors were assembled at the Burlington County Court House
and transported directly to the Mercer County Court House with
attempts to minimize the exposure to the hawking of papers en
route to the court house.
Although the court empaneled the jurors from Burlington
County, the net effect was not significantly different than if
the jury had been from Camden County. As noted, the racial
demographics of the two counties were substantially similar,
although Camden is more urban. When the jury panel was finally
composed, it included two minority members. The court
systematically excluded readers of the Trentonian from the panel
of jurors. (The court's initial goal was to select sixty jurors
and eventually qualified forty-nine jurors on the day before
trial was to commence on January 3, 1996.) The principal risk of
jury contamination in this case arose in Mercer county and not in
the home counties of the jurors. It made little difference
whether the jurors were from Burlington or Camden counties.
Midtrial Publicity
Defendant contends that assuming that it was not an abuse of
discretion to employ an out-of-county jury, the court's refusal
to question jurors individually concerning any possible exposure
to inherently prejudicial midtrial publicity deprived defendant
of a fair trial. Defendant specially challenges the penalty-phase portion of the trial. After the guilt verdict was
returned, defense counsel moved for sequestration of the jury and
that the court conduct an individual voir dire. Counsel argued
that jurors, particularly juror number seven, may have been
exposed to prejudicial publicity that the jurors might have been
reluctant to discuss in a group setting.
Dramatically prejudicial headlines were attendant to the
guilt-phase deliberations. The Trentonian headlines read, "One
Juror Stalls Verdict," and "Battling Harris Jury Draws Public
Fire." A feature story quoted a Trenton resident as expressing
the opinion that "[m]ost people figure the jury would think,
`We'll have lunch on the county, and we'll squirt him--this
afternoon.'" Similar publicity continued during the penalty
phase. A headline such as "Ambrose Eyed in '67 Slay." An
editorial recommended death for Harris. The day after the jury
returned its guilt verdict, a front-page photograph of Harris ran
over a caption which read, "So why's this killer smiling?
Because he's seen juror No. 7 crying, and he thinks she'll never
go for the death penalty."
Defense counsel acknowledge that whenever they requested the
court to question jurors concerning any prejudicial headlines and
accounts, the court did ask the jurors to acknowledge by a show
of hands if they had seen or read any news accounts of the trial
and that on each of these occasions it received no response. But
defendant argues that because of the inherently prejudicial
nature of these articles, particularly those that singled out a
specific juror, the court should have granted defense counsel's
request for an in camera individual voir dire of the jurors. (In
camera individual voir dire means one-on-one interviews between
the judge and each juror, without the press or the public
present.)
Bey I, supra,
112 N.J. 45, presented a similar issue. In
that case the defendant had been charged almost simultaneously
with two murders in the same county. Because the defendant had
not been convicted of either murder, evidence of the other murder
was inadmissible at the first guilt-phase trial. During voir
dire, the court questioned jurors concerning exposure to any
pretrial publicity and admonished prospective jurors not to read
newspaper accounts of the case. These protective instructions
were repeated frequently at trial. After the commencement of
trial, a newspaper circulating in the county printed articles
concerning the other murder and also published a strongly worded
commentary criticizing sentences in other murder cases as overly
lenient. Id. at 79-80.
Defense counsel produced the articles and requested a
mistrial or, in the alternative, that the jury be polled
concerning any exposure. The court declined to question the jury
with respect to any exposure to the newspaper articles, relying
on the presumption that jurors would faithfully adhere to the
court's instruction. Id. at 80.
Notwithstanding the general presumption that jurors act in
good faith and seek to comply with a court's instructions, we
held that general warnings not to read trial publicity are
inadequate when inherently prejudicial information has been
published during a trial and it is likely that one or more jurors
may have been exposed to the publicity. Id. at 81. If a court
is satisfied that published information has the capacity to
prejudice a defendant, the court should first "determine if there
is a realistic possibility that such information may have reached
one or more of the jurors." Id. at 86. If such a "possibility
exists, the court should conduct a voir dire to determine whether
any exposure has occurred." Ibid. In a footnote, the Court
wrote that "[t]hough the form and content of this initial
questioning is better left within the trial court's sound
discretion, we note that a practice of polling the jurors
individually, in camera, is likely to be more effective in
uncovering any exposure than is questioning the jury en banc, in
open court." Id. at 86 n.26. Justice Stein further prescribed
that
[i]f there is any indication of such exposure
or knowledge of extra-judicial information,
the court should question those jurors
individually in order to determine precisely
what was learned and establish whether they
are capable of fulfilling their duty to judge
the facts in an impartial and unbiased
manner, based strictly on the evidence
presented in court.
We reversed the conviction in Bey I because the court
refused to question the jurors in accordance with defense
counsel's request. We observed that "[s]uch an inquiry might
have revealed that no exposure to the publicity had occurred at
all." Id. at 91. That scenario did not occur in this case.
Harris' jurors were questioned generally and that inquiry
revealed that no exposure had occurred.
United States v. Bermea,
30 F.3d 1539 (5th Cir. 1994),
cert. denied sub nom. Rodriguez v. United States,
513 U.S. 1156,
115 S. Ct. 1113,
130 L. Ed.2d 1077 (1995), is similar. After
instances of possible exposure to inherently prejudicial
publicity had been brought to its attention, the court conducted
a collective voir dire. The negative response received on each
occasion disclosed that jury exposure did not occur and supported
the court's discretionary decision that individual voir dire was
unnecessary. The Bermea court wrote: "We have found nothing in
our cases to support a rule that midtrial publicity requires
individual voir dire even after the district judge has made a
collective inquiry to the jury and received no positive
response." Id. at 1560; see also United States v. Tolliver,
61 F.3d 1189, 1204 (5th Cir. 1995) (holding that a two-step inquiry
is necessary to assess whether individualized voir dire is
necessary because of midtrial publicity, concerning the nature of
the media coverage and its prominence).
In Bey I, the court was at pains to point out that "with
respect to the trial court's failure to poll the jury about
exposure to media reports, we have gone no further than to adopt
the approach accepted by the majority of states that have
considered the matter for capital and noncapital cases alike."
Bey I, supra, 112 N.J. at 92. Had we intended to go further than
prevailing practice on the question of exposure to midtrial
publicity, we should have done so explicitly. Not having done so
in Bey I, a denial of individual voir dire should not form the
basis for reversing a conviction when there is no evidence of
exposure.
Unlike in Bey I and Bermea, in which the jurors were exposed
in their homes to newspapers and television accounts of
inherently prejudicial material, the jurors in this case were not
exposed to publicity in their homes. The question was whether,
in their travels by bus in and out of the county and in their
trips for lunch, they would have read and been influenced by the
prominently displayed headlines of the tabloid newspaper
involved. In such circumstances, the collective voir dire was
acceptable.
A question may arise whether we should reconvene the jury
and poll the members individually to determine whether any
individual juror was, in fact, exposed to prejudicial midtrial
publicity. In Koedatich I, supra,
112 N.J. 225, defendant sought
to question jurors after his trial. He relied on a newspaper
article that quoted some jurors as having knowledge of his
involvement in a second murder. We held that questioning jurors
after a trial is "an extraordinary procedure" that should be
invoked only when there is a strong representation that a
defendant may have been harmed by juror misconduct. Id. at 288
(quoting State v. Athorn,
46 N.J. 247, 250, cert. denied,
384 U.S. 962,
86 S. Ct. 1589,
16 L. Ed.2d 674 (1966)). We did not
wish to create a situation where "disappointed litigants would be
encouraged to tamper with jurors to harass them and to employ
fraudulent practices in an effort to repudiate their decisions."
Ibid. (quoting Athorn, supra, 46 N.J. at 250). Nor did we wish
to extend "an open invitation . . . to any disgruntled juror who
might choose to destroy a verdict to which [the juror] had
previously assented." Ibid. (quoting Athorn, supra, 46 N.J. at
250). Privacy and secrecy must attach to the process, not only
to promote the finality of jury verdicts but also to aid the
deliberative process itself, allowing each juror the freedom to
discuss his or her thoughts. Ibid. For the same "strong policy
reasons" that led us to the decision not to interrogate the
Koedatich jury, Koedatich, supra, 112 N.J. at 288-90, we ought
not reconvene the jury that convicted and sentenced defendant.
On February 22, 1996, prior to the commencement of the
penalty phase, defense counsel moved to sequester the jury. The
impetus for this motion was a "new direction" that the publicity
had taken. The February 21, 1996, edition of the Trentonian
contained in bold type the bold headline, "Guilty," over a
picture of Mr. Harris with a caption, "So why's this killer
smiling? Because he's seen juror No. 7 crying, and he thinks
she'll never go for the death penalty." Several days before,
while the jury was deliberating defendant's guilt, a cover page
headline said, "One Juror Stalls Verdict." Defendant describes
this as a clear attempt by the media to seek to influence or
intimidate this jury, and, more specifically, to intimidate, by
personal attack, a single juror who happened to be a black
female.
In this context, sequestration of jurors means that jurors
would not return to their homes at the end of a day of trial and
would be housed by the court, take all meals, and receive outside
information under the supervision of court officers. See Marcy
Strauss, Sequestration,
24 Am. J. Crim. L. 63, 66 (1996). This
is not to be confused with the sequestration of witnesses, the
practice of not allowing prospective witnesses to hear the
testimony of other witnesses, the theory being that the witnesses
might shape their testimony to that which they have heard.
Defendant emphasizes that under our prior death-penalty
practice, sequestration of the jury was required at all times in
capital cases. State v. Pontery,
19 N.J. 457, 479 (1955) (Heher,
J., concurring). It was not until September 5, 1972, that judges
were permitted to disperse a criminal jury during deliberations.
Pressler, Current N.J. Court Rules, comment 3 on R. 1:8-6 (1998).
The Sub-Committee on Jury Deliberations of this Court's Criminal
Procedure Committee, which recommended the 1972 rule change,
suggested that sequestration after commencement of deliberations
be a discretionary decision for the trial court based on such
factors as the nature of the case, the identity of the defendant,
the len