SYLLABUS
(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 October 12, 2005 - - Decided: May 7, 2007
RIVERA-SOTO, J., writing for the Court.
Brian Wakefield pled guilty to two counts of capital murder. In this appeal,
Wakefield raises fourteen assignments of error in respect of the penalty phase trial
that resulted in his death sentence.
Wakefield made no factual representations at the plea hearing other than to admit
his guilt of the crimes charged. The following summary of facts was tendered,
however, by the prosecutor at the plea hearing.
On January 18, 2001, Pleasantville Police Department responded to a house fire in
Pleasantville and discovered fires in different locations of the house. A number of
the bedrooms had been ransacked. After extinguishing the fires, police discovered two bodies
under debris in the basement. The bodies were burnt beyond recognition. Based on
dental records, police were able to confirm that the victims were Shirley and
Richard Hazard. Police also discovered a number of bottles of alcohol and cooking
oils that could be used as accelerants for the fire. The medical examiner
was able to determine that both Mr. and Mrs. Hazard died of sharp
blunt force injuries. The fire was not the cause of death. Through relatives,
it was also determined that Mrs. Hazard’s car, a Lincoln Continental, was missing.
The Lincoln was later found on Route 322 near the Hamilton Mall.
That same evening, Olin Caldwell, a cab driver, walked into the Pleasantville Police
Department and reported suspicious conduct on the part of someone he had given
a ride to that day who he knew as B-Love. B-Love was determined
to be Wakefield. Caldwell reported that he picked up Wakefield near the Hamilton
Mall. Wakefield had a bag of new clothes with him, and asked Caldwell
to rent him rooms at a nearby Atlantic City casino hotel. Caldwell rented
three rooms for Wakefield. When they got to the casino hotel, Wakefield changed
from the clothes he was wearing into the clothes he had purchased at
the Mall. Caldwell brought the clothes and some other property that Wakefield left
in his cab to the Police Department. Included was a piece of jewelry
later determined to belong to Mrs. Hazard. The clothes that were turned over
by Caldwell were later submitted for DNA analysis. They were found to contain
blood stains consistent with that of Mr. and Mrs. Hazard.
Police got a search warrant and arrested Wakefield on the morning of January
19th at the casino hotel. Wakefield gave two taped statements that day. In
his first statement, he admitted to being involved in the crimes, but denied
injuring the Hazards. He claimed that he acted as a lookout for someone
who he knew as Hype G (Gary Clemmons). In his second statement, Wakefield
acknowledged that he stabbed Mr. Hazard in the right side and that he
threw Mrs. Hazard down the basement steps and repeatedly kicked her in the
ribs. Independent witnesses placed Mr. Clemmons at a different location at the approximate
time of the homicides, so it was the State’s position that Wakefield committed
the crimes by his own conduct.
On April 11, 2001, an Atlantic County grand jury returned a thirteen-count indictment
charging Wakefield with two counts of knowing or purposeful murder and numerous other
charges. The State served a notice of aggravating factors as a prerequisite for
the imposition of the death penalty. As to Mr. Hazard, the aggravating factors
were that the murder was committed while Wakefield was engaged in robbery and/or
burglary, and that it was committed for the purpose of escaping detection. As
to Mrs. Hazard, the aggravating factors were that the murder was committed while
Wakefield was engaged in murder (Mr. Hazard’s), robbery and/or burglary, and it was
committed for the purpose of escaping detection.
On September 8, 2003, Wakefield entered an unconditional plea of guilty on all
counts of the indictment. The jury was sworn on February 2, 2004, and
the penalty phase trial started two days later. The jury unanimously determined beyond
a reasonable doubt that the aggravating factors proven outweighed all of the mitigating
factors presented. Among the seventeen mitigating factors pled by Wakefield were that he
did not plan the murders; that he was raised in an environment where
domestic violence, substance abuse and criminal activity were pervasive; and that he was
raised in a home without structure or positive role models. Wakefield moved to
set aside the death verdict, alleging prosecutorial misconduct in summation and that the
verdict was against the weight of the evidence. The trial court denied those
post-trial applications and sentenced Wakefield on the non-capital crimes to an aggregate sentence
of fifty-five years, with an aggregate minimum term of imprisonment of thirty-four years.
Wakefield filed a direct appeal to this Court. The Association of Criminal Defense
Lawyers of New Jersey was granted leave to appear as amicus curiae.
HELD: Wakefield’s penalty phase proceedings were fair, the death sentence was properly imposed,
and his death sentence is not disproportionate.
1. Wakefield claims that the State was permitted to introduce vast amounts of
highly inflammatory evidence. This evidence falls into four distinct categories: portions of his
statements to the police; evidence in respect of the crimes themselves; photographs of
the crime scene; and evidence of Wakefield’s post-crime behavior. Underlying these claims is
Wakefield’s contention that his unconditional guilty plea obviated any need for the State
to present such evidence. This Court recently reaffirmed the principle that the only
evidence admissible in the penalty phase is evidence relevant to the aggravating and
mitigating factors. The Court finds Wakefield’s statements relevant to prove whether the murders
were purposeful, the aggravating factor of escaping detection, and whether the mitigating factors
were proven. In addition, the probative value of this evidence was not substantially
outweighed by the risk of undue prejudice. (pp. 14-20)
2. Wakefield also challenges the proofs of the crimes themselves tendered by the
prosecution, arguing that the fact that he pled guilty removed any need for
such evidence. The Court concludes that Wakefield’s admission of guilt did not provide
him the advantage of barring proofs of the crimes themselves. The evidence challenged
by Wakefield was relevant and its probative value was not substantially outweighed by
any undue prejudice. (pp. 20-28)
3. Wakefield next alleges that there was prosecutorial misconduct throughout the penalty phase
trial. To justify reversal, the prosecutor’s conduct must have been clearly and unmistakably
improper, and must have substantially prejudiced Wakefield’s fundamental right to have a jury
fairly evaluate the merits of his defense. Wakefield alleges that in his opening
the prosecutor engaged in prohibited vouching by claiming that the State does not
routinely seek the death penalty, and requests it only when the State believes
it is called for. The trial court immediately issued a curative instruction explaining
to the jury that the prosecutor’s belief or opinion is not evidence and
was not proper argument, and should be disregarded by the jury. Even if
the prosecutor’s comments could be termed questionable, the potential prejudicial effect on Wakefield’s
right to a fair trial was slight and the relief requested is unwarranted.
Wakefield points to instances during the prosecution’s opening statement that he claims constituted
improper argument. The Court finds the comments to be a recital of the
aggravating factors the State intended to prove and also a response to the
implausibility of the excuses Wakefield tendered in his various statements. (pp. 28-39)
4. Wakefield alleges that, at several points during the evidentiary stage of the
penalty phase trial, the State disparaged defense counsel by accusing him of discovery
violations. The Court does not read these comments as an assault on defense
counsel. On the contrary, the prosecution properly sought to raise credibility issues concerning
recent fabrication or bias.
Next, Wakefield claims that the State engaged in unwarranted
comments and accusations – cheap shots – that distorted the record and prejudiced Wakefield. Most
of these comments arose in cross-examination, and, with one exception, were a proper
attempt to impeach these witnesses. As to the exception, the cross-examination of the
defense’s social worker, the Court finds the prosecutor’s comment is worthy of disapproval,
but was not so egregious as to deprive Wakefield of a fair trial.
(pp. 39-59)
5. Wakefield also raises objections to the State’s summation, including the prosecutor’s reference
to the death penalty as “justice,” and his statement that it is what
Wakefield “deserved.” In addition, he complains that the prosecutor improperly focused on Wakefield’s
character when his character was a “non-issue.” The Court finds that
the vast
majority of these comments were fair responses to Wakefield’s presentation of evidence. Moreover,
none of the comments substantially prejudiced Wakefield’s fundamental right to a fair trial.
(pp. 59-78)
6. Wakefield complains that the trial court’s instructions on the reasonable doubt standard
were in error and require a new penalty phase trial. Defense counsel did
not raise an objection to the instructions, and the Court concludes that the
trial court’s charge as a whole in no way lessened the State’s burden
of proof. The Court also rejects, at it has in
prior cases, Wakefield’s
argument that the jury instructions should include a statement that he is entitled
to a presumption against the death penalty. In addition, the Court finds no
error in the State’s use of victim impact statements. (pp. 78-103)
7. The Court rejects Wakefield’s other challenges to his penalty phase proceedings and
his constitutional challenges
to the escape detection aggravating factor and to the death
penalty generally. (pp. 103-122)
8. On proportionality review, the Court concludes that Wakefield’s sentence is not disproportionate.
Reviewing the available statistical data under frequency analysis, the Court concludes that Wakefield
has failed to establish that his death sentence is disproportionate. Under precedent seeking
analysis, the Court finds that Wakefield has a high level
of culpability, especially
given the age and vulnerability of his victims, his extensive prior record, and
his lack of remorse. Comparing Wakefield’s sentence to that of defendants in other,
similar cases involving multiple homicides, the Court finds that Wakefield’s death sentence is
not irrational or aberrant. (pp. 122-171)
The judgment of conviction and sentence, including Wakefield’s death sentence, are
AFFIRMED.
JUSTICE ALBIN has filed a separate, CONCURRING
opinion, to express the view that
the prosecutor’s opening remarks vouching for the credibility of the State’s case for
death exceeded the bounds of propriety, even if they do not warrant a
reversal of Wakefield’s death sentence. He also believes that the present system of
proportionality review has become overly complex and defies understanding, and because that system
is incapable of ensuring consistency and uniformity in sentencing, the Court should endeavor,
as it always has, to prevent an aberrational sentence.
JUSTICE LONG has filed a separate, DISSENTING
opinion, expressing the view that Wakefield’s
sentence is disproportionate compared to the life sentences received by other multiple-homicide defendants
who had the same or greater level of culpability.
JUSTICE WALLACE has filed a separate, DISSENTING opinion, in which JUSTICE LONG
joins,
expressing the view that the cumulative effect of the numerous errors below deprived
Wakefield of his right to a fair trial.
JUSTICES LaVECCHIA and ZAZZALI join in JUSTICE RIVERA-SOTO’s opinion.
JUSTICE ALBIN
filed a
separate, concurring opinion. JUSTICES LONG and WALLACE have filed separate, dissenting opinions.
SUPREME COURT OF NEW JERSEY
A-
37 September Term 2004
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN WAKEFIELD,
Defendant-Appellant.
Argued October 12, 2005 – Decided May 7, 2007
On appeal from the Superior Court, Law Division, Atlantic County.
Jay L. Wilensky and Mark H. Friedman, Assistant Deputy Public Defenders, argued
the cause for appellant (Yvonne Smith
Segars, Public Defender, attorney; Mr. Wilensky and Robert A. Seelenfreund, Assistant Deputy Public
Defender, of counsel and on the briefs).
Kristen M. Harberg, Deputy Attorney General, argued the cause for respondent (Peter C.
Harvey, Attorney General of New Jersey, attorney).
Roy B. Greenman argued the cause for amicus curiae, Association of Criminal Defense
Lawyers of New Jersey (Budin, Greenman & Greenman, attorneys).
JUSTICE RIVERA-SOTO delivered the opinion of the Court.
Defendant Brian Wakefield pled guilty to two counts of capital murder and eleven
other offenses arising out of the home-invasion robbery, assault, and murder of seventy-year-old
Richard Hazard and his sixty-four-year-old wife Shirley Hazard in their Pleasantville, New Jersey
home on January 18, 2001. At his penalty phase trial, a jury unanimously
found all of the aggravating factors alleged by the State; rejected, in whole
or in part, all of the mitigating factors claimed by defendant; determined beyond
a reasonable doubt that the aggravating factors outweighed the mitigating factors; and sentenced
defendant to death. The trial court later separately sentenced defendant on all of
the non-capital crimes to which he pled guilty.
In this direct appeal, defendant raises fourteen assignments of error in respect of
the penalty phase trial that resulted in his death sentence.
See footnote 1
We hold that
defendant’s objections to his death sentence are without merit and, therefore, we affirm
his convictions and sentences.
I.
FACTUAL AND PROCEDURAL BACKGROUND.
A.
Defendant made no factual representations at the plea hearing other than to admit his guilt of the crimes charged. A succinct summary of facts was tendered, however, by the prosecutor in lieu of defendant’s allocution at the plea hearing: See footnote 2
[O]n January 18th of 2001, [the] Pleasantville Police Department responded to 300 Wellington Avenue in Pleasantville. Upon entering the house which they found unlocked, they encountered fires in different locations. There were two fires that they found on the first floor, [and] one fire that they found . . . upstairs.
As they were going through the upstairs, they found that a number of
the bedrooms had been ransacked[,] that dresser drawers were pulled from the dressers[,]
and the contents were emptied on the floor. After extinguishing the fires on
the first and second floor[s], they discovered there was some additional fire in
the basement.
Upon extinguishing the fires in the basement, they discovered two bodies under debris.
These bodies were burnt beyond recognition, but due to dental records, they were
able to confirm that it was Shirley and Richard Hazard.
Mr. Hazard was observed by the police and firemen with visible wounds to
his head. There [were] puddles of blood around his head. He also had
a melted garbage bag on the top part of his head. [T]he arson
investigator was later able to determine that there were five fires set within
the house, one in the upstairs, two on the first floor, [and] two
in the basement. One of the areas of fire [was] the actual bodies
of Mr. and Mrs. Hazard. The police also found that there were a
number of alcohol bottles and cooking oils that were spilled on the floor
that . . . could be used as accelerants for the fire.
[The] medical examiner was able to determine that both Mr. and Mrs. Hazard
died of sharp and blunt force injuries. It was determined that the fire
was not the cause of death, that the fire was post-mortem. It was
also determined that through relatives while [the] police and fire [personnel were] still
on the scene that a car was missing, a car Mrs. Hazard drove:
a 1994 Lincoln Continental.
About 7:20 p.m. the Lincoln Continental was found on Route 322 near Hamilton
Mall in Hamilton Township. About 11:30 [p.m.] on that same date: the 18th,
a cab driver[,] Olin Caldwell[,] walked into the Pleasantville Police Department, [and] indicated
that on that day he had given a ride to somebody he knew
as B-Love. B-Love was determined to be [defendant]. When [Caldwell] picked up [defendant],
[defendant] had a bag of new clothes with him. [Defendant] later asked for
Mr. Caldwell to rent him rooms at [a nearby Atlantic City casino hotel].
Mr. Caldwell agreed to do that. He rented the defendant three rooms at
the [casino hotel]. When the defendant and Mr. Caldwell got to the [casino
hotel], the defendant changed from the clothes that he was wearing into the
clothes he had just purchased at the mall. He also made some purchases
within the City [of Atlantic City].
Mr. Caldwell also observed [defendant] cashing in some old coins at a coin
redemption center with the casino. Mr. Caldwell was suspicious of the defendant’s behavior
and later brought the clothes and some other property that [defendant] left in
his cab to the Pleasantville Police Department[.] [T]he clothes included the jeans, two
pairs of shoes, [and a] sweat-shirt. The jewelry included a pendant that said
“number one grandmom.” This pendant was later identified as belonging to Mrs. Hazard.
Mr. Cladwell told the police that [defendant] was still at the [casino hotel].
The police ended up getting a search warrant and arresting [defendant at] approximately
6:13 a.m. in the morning of January 19th 2001. [Defendant] on that day
of the 19th gave two taped statements to the police[,] and gave a
taped statement on January 21st [in] the County Jail to the police. In
his first statement [defendant] acknowledged being involved in the crimes, but denied committing
any injuries to Mr. and Mrs. Hazard. [Defendant] indicated he met an individual
he knew as Hype G also known as Gary Clemmons at the Woodlands
in Pleasantville on that day. Mr. Clemmons asked [defendant] to be a lookout.
[Defendant] indicated that he went to the [Hazard] residence. [Defendant] stayed about four
houses down across the street as Mr. Clemmons went inside. He saw a
person later determined to be Mr. Hazard open up the door as Mr.
Clemmons entered.
. . . .
In this first statement [defendant] denied being involved in the actual assault on
the victims, but he did acknowledge that he did assist in setting fires
in a second statement, though he did acknowledge that he stabbed Mr. Hazard
in the right side[,] which is consistent with an injury found by the
medical examiner. [Defendant] did acknowledge that he threw Mrs. Hazard down [the] basement
steps and repeatedly kicked her in the ribs. The injuries to the ribs
are corroborated by the medical examiner’s office. [Defendant] also acknowledged in the statement
pouring gasoline on Mr. Hazard and lighting him on fire postmortem. The [third]
statement basically acknowledges the same type of information regarding being involved in inflicting
injuries to Mr. and Mrs. Hazard.
[T]he clothes that were turned over by Mr. Caldwell to the police department
later was submitted for DNA analysis. In addition . . . [defendant] did
acknowledge that these were the clothes he was wearing during the course of
the crime to the police. And those clothes [showed] Shirley Hazard’s blood on
the left sneaker, Richard Hazard’s blood on a jean, and Mr. Hazard’s blood
on the right sneaker. The odds [of a DNA comparative match] are in
the billions [to one] on one and in [the] trillions [to one] on
the other.
. . . .
[Defendant] did indicate that Mr. Clemmons was involved in these homicides. It turns
out through independent witnesses that Mr. Clemmons was picking up his children from
daycare at the approximate time of the homicides. So it’s the State’s position
it was physically impossible for [Clemmons] to be involved in the crimes and,
therefore, the defendant committed these crimes by his own conduct.
In sum, then, it is undisputed that defendant entered the Hazard home; he
assaulted and killed Richard Hazard; he placed Richard Hazard’s body in the basement
and covered his head with a plastic garbage bag; when Shirley Hazard returned
home from grocery shopping, defendant assaulted her and flung her down the basement
steps; once in the basement, defendant further assaulted and killed Shirley Hazard; defendant
ransacked the Hazard home for money and jewelry; in order to disguise his
crimes, defendant
set fire to the bodies and to several other places in
the Hazard home; defendant stole Shirley Hazard’s car; defendant went on a shopping
and partying spree with the proceeds of his crimes; defendant was arrested the
following morning; defendant confessed to his crimes; independent testimony, and physical and forensic
evidence tied defendant to these crimes; and defendant admitted his guilt under oath.
Based on those facts, on April 11, 2001, the Atlantic County grand jury returned a thirteen-count indictment charging defendant with two counts of knowing or purposeful murder by one’s own conduct, in violation of N.J.S.A. 2C:11-3a(1) or (2); two counts of knowing or purposeful murder, in violation of N.J.S.A. 2C:11-3a(1) or (2); two counts of felony murder, in violation of N.J.S.A. 2C:11-3a(3); two counts of first-degree robbery, in violation of N.J.S.A. 2C:15-1; one count of second degree burglary, in violation of N.J.S.A. 2C:18-2; one count of second-degree aggravated arson, in violation of N.J.S.A. 2C:17-1a; one count of third-degree possession of a knife with the purpose to use it unlawfully against the person or property of another, in violation of N.J.S.A. 2C:39-4d; one count of third-degree hindering apprehension or prosecution, in violation of N.J.S.A. 2C:29-3b(1); and one count of fourth-degree knowingly possessing a knife under circumstances not manifestly appropriate for such lawful uses as it may have, in violation of N.J.S.A. 2C:39-5d.
Because the indictment included charges of knowing or purposeful murder by one’s own conduct that might implicate the imposition of the death penalty, N.J.S.A. 2C:11-3c, at defendant’s arraignment the State served a notice of aggravating factors as a prerequisite for the imposition of the death penalty. See N.J.S.A. 2C:11-3c(2)(e) (“Prior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor, the prosecuting attorney shall give notice to the defendant of the aggravating factors which he intends to prove in the proceeding.”). The State alleged two aggravating factors in respect of the murder of Richard Hazard: that his murder was committed while defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery and/or burglary, as provided in N.J.S.A. 2C:11-3c(4)(g); and that his murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense, as provided in N.J.S.A. 2C:11-3c(4)(f). Because Richard Hazard was murdered before his wife Shirley Hazard, the two aggravating factors in respect of the murder of Shirley Hazard alleged by the State differed slightly from those alleged in respect of her husband: that her murder was committed while defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit murder, robbery and/or burglary, as provided in N.J.S.A. 2C:11-3c(4)(g); and that her murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense, as provided in N.J.S.A. 2C:11-3c(4)(f).
On September 8, 2003, defendant entered an unconditional plea of guilty on all counts of the indictment. Jury selection for defendant’s penalty phase trial commenced immediately following defendant’s guilty pleas, and continued for over twenty-seven non-consecutive trial days thereafter, ultimately concluding on January 22, 2004. The jury was sworn on February 2, 2004, and the penalty phase trial started. Two days later, on February 4, 2004, and in response to State v. Fortin (II), 178 N.J. 540 (2004), which had been decided the prior day, defendant moved to dismiss the aggravating factors listed by the State, principally claiming that the State’s failure to present the aggravating factors to the grand jury, and the grand jury’s failure to consider the same, violated his constitutional rights. See footnote 3 Based on Fortin’s conclusion in respect of its prospective application, the trial court denied defendant’s application, as well as defendant’s motion for a stay of that determination pending an interlocutory appeal. That same day, defendant sought, and the Appellate Division granted, an emergent motion for a temporary stay pending his interlocutory appeal. Two days later, on February 6, 2004, and because jury selection had been completed, the jury had been sworn, and the taking of evidence had commenced, this Court denied defendant’s motion for leave to appeal and dismissed defendant’s motion for a stay pending appeal as moot, referencing the order of clarification issued that day in Fortin: “In any case in which the penalty phase of a capital case had begun before the issuance of the Fortin opinion, including any case in which the trial court had begun empanelling a jury, there is no requirement that the State present the aggravating factors to a Grand Jury.” Id. at 656.
Defendant’s penalty phase trial resumed on February 9, 2004 and continued until the late morning of March 4, 2004 when, after fifteen days of evidence and jury deliberations spanning the afternoon of March 3, 2004 and the morning of March 4, 2004, the jury unanimously determined beyond a reasonable doubt that the aggravating factors proven outweighed all of the mitigating factors presented. See N.J.S.A. 2C:11-3c(3)(a). As a result, the jury returned separate death sentences as to the murders of Richard and Shirley Hazard.
Specifically, the jury was unanimous in its separate findings concerning each of the aggravating factors: that the murder of Richard Hazard was committed while defendant was engaged in the commission of a burglary; that the murder of Richard Hazard was committed while defendant was engaged in the commission of a robbery; that the murder of Richard Hazard was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement, or another offense committed by defendant; that the murder of Shirley Hazard was committed while defendant was engaged in the commission of a burglary; that the murder of Shirley Hazard was committed while defendant was engaged in the commission of a robbery; that the murder of Shirley Hazard was committed while defendant was engaged in the commission of the purposeful and/or knowing murder of Richard Hazard; and that the murder of Shirley Hazard was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement, or another offense committed by defendant.
The jury’s consideration and rejection of the seventeen mitigating factors pled by defendant is set forth in the following chart:
Vote
(Yes/No)
0/12
0/12
7/5
0/12
6/6
0/12
0/12
1/11
The trial court individually polled each juror, and each juror responded that he or she was satisfied beyond a reasonable doubt that the aggravating factors proven outweighed all of the mitigating factors, and that his or her vote was accurately reflected on the verdict form. Neither counsel for the State nor for defendant requested any additional polling of the jury.
After the jury was excused, and as required by law, N.J.S.A. 2C:11-3c(3)(a), the trial court sentenced defendant to death. Defendant moved to set aside the death verdict, alleging prosecutorial misconduct in summation and that the verdict was against the weight of the evidence. The trial court denied those post-trial applications and sentenced defendant on the non-capital crimes to which defendant had pled guilty. Finding there were no mitigating factors applicable and that there were “a number of very weighty aggravating factors to be taken into account[,]” see generally N.J.S.A. 2C:44-1a and b (enumerating aggravating and mitigating factors relevant to non-capital sentencing determinations), the trial court sentenced defendant to an aggregate maximum term of imprisonment of fifty-five years, an aggregate minimum term of imprisonment of thirty-four years, an aggregate mandatory ten-year parole term, and the payment of several statutorily defined penalties and assessments.
As provided by N.J.S.A. 2C:11-3e and Rule 2:-1(a)(3), defendant filed a direct appeal of his death sentence to this Court. We granted leave to the Association of Criminal Defense Lawyers of New Jersey to appear as amicus curiae.
INFLAMMATORY EVIDENCE.
A.
Defendant claims that his death sentence cannot be sustained because “the State was permitted to introduce vast amounts of highly inflammatory evidence that was unnecessary for either proof of the alleged aggravating factors or refutation of claimed mitigating factors.” Defendant’s allegations of “highly inflammatory evidence” fall into four distinct categories: portions of defendant’s statements to the police; evidence in respect of the crimes themselves; photographs of the crime scene; and evidence of defendant’s post-crime behavior. Underlying these claims is defendant’s contention that his unconditional guilty plea to all of the crimes for which he stood charged obviated any need for the State to prove any of those facts. As a result, defendant contends that his guilty pleas entitled him to the added benefit of limiting the State’s proofs in the penalty phase trial exclusively to a sanitized version of the enumerated aggravating factors.
The State disagrees. According to the State, the proper standard for admissibility of evidence in a death penalty phase trial is whether the evidence is relevant to the aggravating and mitigating factors. The State contends that all proofs presented in respect of penalty were relevant to the aggravating and mitigating factors before the penalty phase jury and, therefore, were admissible.
In State v. Josephs, 174 N.J. 44, 116 (2002), we “reaffirm[ed] the principle that the only evidence admissible in the penalty phase is evidence relevant to the aggravating and mitigating factors.” Earlier that same Term, we explained that
In general, a trial court is afforded considerable latitude regarding the admission of evidence, and is to be reversed only if the court abused its discretion. In a capital sentencing trial, admissible evidence includes that evidence relating to the aggravating and mitigating factors at issue. In assessing the probative value and the risk of undue prejudice under N.J.R.E. 403, the trial court has discretion to make appropriate determinations and will be reversed only if the trial court’s ruling was so wide of the mark that a manifest denial of justice resulted.
[State v. Nelson,
173 N.J. 417, 470 (2002) (citations and internal quotation marks
omitted).]
It is against that standard of admissibility that defendant’s claims must be gauged.
1. Defendant’s statements to the police.
Defendant alleges that six specific portions of his statements to the police should
have been withheld from his death penalty jury. These are: (1) defendant’s unprompted
description that, after hitting Shirley Hazard in the head with a blunt object,
stabbing her repeatedly, and throwing her down the basement steps, defendant kicked her
several times in the ribs with a force akin to that applied by
a professional football place kicker; (2) defendant’s explanation that, when accosted by the
Hazards’ dog, defendant beat the dog into submission using an oversized wooden spoon
in order to quiet him; (3) defendant’s statement that, after the crimes, he
was hungry so he drove in Shirley Hazard’s car to a local fast-food
restaurant for a meal; (4) defendant’s description of his post-crime shopping spree with
the proceeds stolen from the Hazards; (5) defendant’s description of how, after the
shopping spree, he rented several rooms at an Atlantic City casino hotel for
a party; and, (6) defendant’s statement that, during that party, he had sex
with “three or four girls.”
The trial court, in its instructions to the jury, addressed defendant’s concerns:
It’s important for me to here note that although there are guilty pleas
to these offenses, guilty pleas in and of themselves are insufficient to prove
any aggravating factor. They are insufficient in and of themselves and there must
be other evidence to establish it.
. . . .
During the State’s presentation to you in its opening remarks, the State discussed
[defendant’s] alleged conduct after the commission of the crimes.
[The prosecution] argued that [defendant] celebrated after the crimes, threw a party, ate
at [a fast-food restaurant] and there was other conduct described. This alleged conduct
is not an aggravating factor and, accordingly, this conduct cannot be used by
you to determine if the death penalty is appropriate in this case. While
evidence of [defendant’s] spending can be used by you, if you feel it
is credible evidence that a robbery occurred and that [defendant] obtained proceeds from
that robbery, his alleged conduct cannot be used for any other purpose.
You’re specifically instructed that you cannot consider his spending as evidence that [defendant]
is a bad person and, thus, more worthy of the death penalty.
To repeat, it is only the aggravating factors alleged by the State that
can be considered to determine whether [defendant] should be sentenced to death. If
you determine that any of the aggravating factors exist beyond a reasonable doubt,
they can be the only factors used by you to determine the appropriate
penalty.
And the only factors you can consider as weighing in favor of, or
tending to favor, a death sentence are the aggravating factors that I’m now
going to define to you or for you and then only if such
factor has been proven beyond a reasonable doubt.
After explaining the aggravating factors alleged by the State in its notice, the
trial court instructed the jury that
The State alleges that it has proven the existence of the aggravating factors
in question beyond a reasonable doubt. As I told you, the aggravating factors
are not established by the defendant’s guilty plea to knowing or purposeful murder.
Nor were they established from the defendant’s guilty plea to burglary or robbery
or any of the other offenses to which -- or for which he
entered guilty pleas.
In light of both the aggravating and mitigating factors at issue before the
penalty phase jury, each of defendant’s challenged statements was relevant because each of
those statements “ha[d] a tendency in reason to prove or disprove any fact
of consequence to the determination of the action.” N.J.R.E. 401. Applying that minimal
standard, the statements concerning the force with which defendant kicked the prostrate body
of Shirley Hazard had a tendency in reason to prove that either or
both murders were knowing and purposeful. Also, the beating of the Hazards’ dog
to quiet him clearly had a tendency in reason to prove defendant’s purpose
of escaping detection or apprehension. N.J.S.A. 2C:11-3c(4)(f). Finally, the statements concerning defendant’s post-crime
conduct had a tendency in reason to prove not only the aggravating factor
in respect of escaping detection or apprehension, but also the mitigating factor of
whether defendant was remorseful for his crimes. In sum, defendant’s statements in respect
of his assault on Shirley Hazard, his beating the Hazards’ dog to silence
him, and his post-crime activities were relevant.
Assessing relevance, however, is only the first half of the necessary inquiry in
respect of admissibility; the second half of that inquiry requires an application of
the balancing test of N.J.R.E. 403: “[R]elevant evidence may be excluded if its
probative value is substantially outweighed by the risk of (a) undue prejudice, confusion
of issues, or misleading the jury or (b) undue delay, waste of time,
or needless presentation of cumulative evidence.”
That test requires the trial court to exclude evidence if its probative value
is substantially outweighed by the risk of undue prejudice. Evidence claimed to be
unduly prejudicial is excluded only when its probative value is so significantly outweighed
by its inherently inflammatory potential as to have a probable capacity to divert
the minds of the jurors from a reasonable and fair evaluation of the
issues in the case. Moreover, the mere possibility that evidence could be prejudicial
does not justify its exclusion. Additionally, certain types of evidence, including evidence of
motive or intent, require a very strong showing of prejudice to justify exclusion.
[State v. Koskovich,
168 N.J. 448, 486 (2001) (citations, internal quotation marks and
editing marks omitted).]
It cannot be contested that defendant’s own statements concerning his conduct, both during
and after his crimes, were poignantly probative of his actions, particularly in respect
of the determination of the quantum of punishment to be imposed for those
actions. Each statement spoke directly to the depravity with which defendant committed his
crimes and the utter lack of remorse that characterized his post-crime behavior.
For those reasons, the application of Evidence Rule 403’s balancing test to the
statements challenged by defendant leads to the conclusion that the admission of those
statements did not “have a probable capacity to divert the minds of the
jurors from a reasonable and fair evaluation of the issues in the case[,]”
ibid., and, for that reason, their probative value was not substantially outweighed by
the risk of undue prejudice. We, therefore, reject defendant’s challenge to the admissibility
of his statements to the police in the context of his death penalty
sentence.
2. Evidence of the underlying crimes.
Defendant’s second evidentiary challenge addresses the proofs of the crimes themselves tendered by
the prosecution during the penalty phase trial. In defendant’s view, the fact that
he pled guilty to all of the crimes for which he stood charged
removed any need for the introduction of any of the substantive proofs concerning
those crimes. Thus, defendant concludes, the introduction of proofs concerning the crimes to
which he pled guilty was inflammatory and prejudicial. The State replies that, in
the context of the aggravating factors -- that is, that the death penalty
was appropriate because the murders occurred either during the commission of the crimes
of robbery and burglary of both Richard and Shirley Hazard or the murder
of Richard Hazard, or because the murders occurred in order to avoid detection
of or apprehension for the crimes defendant committed -- the admission in evidence
of the facts of the underlying crimes was proper.
Defendant’s unqualified and unrestricted admission of guilt for the murders of Richard and
Shirley Hazard did not, standing alone, provide him the procedural advantage of barring
proofs of those crimes as part of the State’s case for the imposition
of the death penalty. The standard for admissibility of these facts remained whether
the facts were relevant and whether their probative value was substantially outweighed by
their undue prejudicial effect. The facts of defendant’s underlying crimes of robbery, burglary,
murder, and hindering apprehension all are directly relevant to his penalty phase trial
because each has a tendency in reason to prove the presence of aggravating
factors and the absence of mitigating factors. In that context, the probative value
of those facts was not substantially outweighed by their undue prejudicial effect. Therefore,
the trial court properly admitted proofs of defendant’s underlying crimes as part of
his penalty phase proceeding.
3. Crime scene photograph.
Defendant objects to the introduction of a photograph of the crime scene, repeating
again his claim that, because he pled guilty to those offenses, the photograph
was unduly prejudicial. The State responds that the trial court properly exercised its
discretion and admitted one single photograph showing the debris-covered bodies of Richard and
Shirley Hazard and their locations in the basement of the Hazards’ home.
As we have noted,
we have repeatedly expressed our concern about the admissibility of crime-scene and autopsy
photographs in capital cases. Although as a general rule the admissibility of photographs
of a crime victim rests in the trial court’s discretion, the need to
balance the ostensible relevance of such evidence against the likelihood of jury prejudice
is especially critical in the penalty phase of a capital case.
[State v. Bey (III),
129 N.J. 557, 609 (1992), supplemented by,
137 N.J. 334 (1994), cert. denied,
513 U.S. 1164,
115 S. Ct. 1131,
130 L.
Ed.2d 1093 (1995) (citations and internal quotation marks omitted).]
As Bey (III) recognizes, the admissibility of a crime scene photograph in a
capital case implicates a three-step analysis: is the photograph relevant; is it unduly
inflammatory; and did its admission into evidence have the capacity to cause an
unjust result. Ibid.
Here, a single photograph was introduced by the State. That photograph shows only
a debris-strewn area within which a largely indecipherable body lies, and any injuries
to the body, or the location or condition of the second bod
y, are
not visible. It
corroborated both defendant’s statements of what occurred in the Hazards’
home as well as the testimony of those who responded to the fire
and subsequently discovered the murdered bodies of Richard and Shirley Hazard. As corroboration,
the photograph was relevant because it had a tendency in reason to establish
the presence or absence of the aggravating or mitigating factors. In addition, as
an examination of the photograph reveals, the photograph was not unduly inflammatory and
its probative value was not significantly outweighed by any undue prejudicial effect. In
light of the foregoing, it cannot be said that the admission of this
photograph into evidence had the capacity to cause an unjust result. We therefore
conclude that the admission of this single photograph simply was not error. See
Bey (III), supra, 129 N.J. at 609.
4. Defendant’s post-crime behavior.
Defendant contends that everything that happened after he left the Hazards’ home was
irrelevant because he pled guilty to the crimes themselves. The State counters that
defendant’s post-crime activities were relevant to the presence of aggravating and the absence
of mitigating factors in the case. We agree with the State.
As admitted in defendant’s several statements to the police, the post-crime events are
as follows. On January 18, 2001, after robbing and murdering the Hazards, burglarizing
their home, and deliberately setting fire to the Hazards’ home in five separate
locations, defendant left the Hazards’ home in Mrs. Hazard’s car. Defendant was observed
driving that stolen car by the husband of one the Hazards’ grandchildren, a
description that matched the one defendant himself gave of how he was dressed
at the time. Defendant first drove to a fast-food restaurant, because he was
hungry. Defendant then decided to purchase certain music to listen to while he
drove Mrs. Hazards’ stolen car. On his way to the shopping mall, the
car stalled and defendant abandoned it. While walking the remainder of the way
to the shopping mall, defendant drank and discarded a bottle of champagne he
stole from the Hazards’ home; defendant also discarded the keys to the car
he stole from the Hazards’ home.
See footnote 4
Once at the shopping mall, defendant purchased
new clothing and jewelry. Defendant then called for a cab to drive him
around. The cab arrived and first took defendant to his mother’s house. Defendant
offered some of the jewelry he stole from the Hazards’ home to his
mother, but she rejected it; defendant then discarded that jewelry in a dumpster
nearby his mother’s home.
See footnote 5
Defendant had the cab driver drive defendant to an Atlantic City casino hotel.
Along the way, defendant had the cab driver stop so defendant could make
additional purchases. Once at the casino hotel’s parking garage, defendant changed into the
clothes he had just purchased because the clothes he was wearing had the
Hazards’ blood on them. When defendant went to discard the clothes he had
just removed, the cab driver requested defendant’s permission to keep those clothes and,
with defendant’s consent, the cab driver placed the clothes in the trunk of
the cab. At defendant’s request, the cab driver rented three rooms in the
casino hotel and assisted defendant in the purchase of alcohol, which was used
to stock a bar in the room defendant was to occupy.
See footnote 6
At the
casino hotel, defendant exchanged a number of coins he had stolen from the
Hazards into paper currency. The cab driver then drove defendant around Atlantic City,
where defendant purchased marijuana and collected some friends for the party at defendant’s
rooms in the casino hotel. Once back at the casino hotel, defendant “had
sex with three or four girls[,]” fell asleep, woke up in the bathtub,
and climbed into bed.
Meanwhile, the cab driver discussed the events of earlier that day with some
of his fellow cab drivers. As a result of that discussion, the cab
driver decided to report his suspicions to the police. Because the cab driver
originally had picked defendant up in the vicinity of Pleasantville, New Jersey, the
cab driver went to the Pleasantville Police Department, reported his suspicions concerning defendant,
handed defendant’s discarded clothing to the police, and told the police where defendant
claimed to have discarded the keys to the Hazards’ stolen car, and where
defendant could be found.
Based on the information provided by the cab driver, as corroborated by the
crime scene and defendant’s clothes, the police secured both an arrest warrant as
well as a search warrant for the hotel room defendant then occupied. The
police arrested defendant at his casino hotel room early the next morning. When
the police woke defendant, arrested him and advised him that he was being
placed under arrest for a double-murder/arson, defendant’s sole concern was why his new
clothes appeared to have been casually tossed in the bathtub.
Defendant claims that, because he pled guilty to the underlying crimes charged, none
of those proofs should have been admitted. The State contends that the majority
of defendant’s challenged statements were separately corroborated and, thus, inherently credible. In respect
of the remaining challenged statements –- that defendant “had sex with three or
four girls” and that defendant’s sole concern on being awakened by the police
was for the condition of his new clothes –- the State asserts that
those proofs provide a motive for robbery and that, in any event, no
contemporaneous objection was made to the testimony concerning defendant’s statements upon awakening in
the police’s presence.
Although not all of those items of proof bear the same degree of
relevance to the aggravating and mitigating factors in this case, none of them
is irrelevant. Thus, evidence concerning defendant’s consumption of the champagne stolen from the
Hazards’ home corroborated his commission of felony murder, an aggravating factor, see N.J.S.A.
2C:11-3c(4)(g), and at least one of the Hazards’ children confirmed that the Hazards
had in their home a bottle of champagne from the same vintner as
the one recovered by the police. Also, proofs of defendant’s shopping spree, hotel
room rentals, alcohol and drug purchases, and partying all provide motive for the
robbery of Richard and Shirley Hazard. Thus, the relevance of these proofs is
established.
Furthermore, we find that the probative value of those proofs is not substantially
outweighed by their undue prejudicial effect. We reiterate that “[e]vidence claimed to be
unduly prejudicial is excluded only when its ‘probative value is so significantly outweighed
by its inherently inflammatory potential as to have a probable capacity to divert
the minds of the jurors from a reasonable and fair evaluation’ of the
issues in the case.” State v. Koskovich, supra, 168 N.J. at 486 (citing
State v. Thompson,
59 N.J. 396, 421 (1971)). Also, “‘[t]he mere possibility that
evidence could be prejudicial does not justify its exclusion[,]’” id. (quoting State v.
Morton,
155 N.J. 383, 453-54 (1998), cert. denied,
532 U.S. 931,
121 S.Ct. 1380, 149 L. Ed.2d 306 (2001)), and that “[s]ome types of evidence
require a very strong showing of prejudice to justify exclusion. One example is
evidence of motive or intent.” State v. Covell,
157 N.J. 554, 570 (1999).
Because we find that evidence of defendant’s post-crime behavior was relevant to the
aggravating and mitigating factors in this death penalty phase trial, and because we
further find that its probative value is not substantially outweighed by its undue
prejudicial effect, we reject defendant’s challenges to the admission of the post-crime evidence.
On the whole, then, it cannot be said that any of what defendant claims is “highly inflammatory evidence” -- either portions of defendant’s statements to the police; evidence in respect of the crimes themselves; photographs of the crime scene; and evidence of defendant’s post-crime behavior – that should have been excluded from consideration by the death penalty phase jury. On the contrary, we hold that all of those proofs were relevant to the aggravating and mitigating factors in this case, that the probative value of those proofs was not substantially outweighed by their claimed unduly prejudicial effect, and that the trial court’s determinations admitting such proofs were not “so wide of the mark that a manifest denial of justice resulted.” State v. Nelson, supra, 173 N.J. at 470 (quoting State v. Brown, 170 N.J. 138, 147 (2001)). We, therefore, reject defendant’s challenges to his death sentence based on the admission of allegedly “inflammatory” evidence.
PROSECUTORIAL MISCONDUCT/PROSECUTORIAL ERROR.
A.
Defendant next alleges that there was prosecutorial misconduct throughout the penalty phase trial -- during opening statements, at trial and during summation -- sufficient to require that his death sentence be vacated. Specifically, defendant alleges twelve separate categories of prosecutorial misconduct: (1) improper vouching; (2) engaging in argument during opening statement; (3) disparagement of defense counsel; (4) unwarranted comments and accusations; (5) obstruction of the defense’s examination of defendant’s cousin; (6) mention of a report prepared by a non-testifying defense expert; (7) equating the death penalty with justice; (8) explanation that the jury should not “feel guilty” about imposing a death sentence; (9) mischaracterization of the penalty phase as concerning what defendant “deserved;” (10) comments concerning defendant’s age; (11) name-calling; and (12) improperly focusing on defendant’s character.
The State claims that there was no prosecutorial misconduct here and, in any event, that much of what defendant complains of on appeal was addressed by the trial court by way of a curative instruction.
For purposes of analysis, we have divided defendant’s contentions into three general categories -- objections to the State’s opening statement; objections arising during the evidentiary stage; and objections to the State’s summation -- and we address each separately.
Our jurisprudence requires that prosecutors act in accordance with certain fundamental principles of fairness. It was long ago recognized that
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
It is fair to say that the average jury, in a greater or
less[er] degree, has confidence that these obligations, which so plainly rest upon the
prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions
of personal knowledge are apt to carry much weight against the accused when
they should properly carry none.
[Berger v. United States,
295 U.S. 78, 88, 55 S. Ct. 629, 633,
79 L. Ed. 1314, 1321 (1935).]
Echoing those precepts, we too have explained that “[a] prosecutor may be zealous
in enforcing the law but he must nevertheless refrain from any conduct lacking
in the essentials of fair play, and where his conduct has crossed the
line and resulted in foul play, the reversal of the judgment below will
be ordered.” State v. Siciliano,
21 N.J. 249, 262 (1956).
Thus, we have defined the role of a prosecutor similarly:
It is but a truism that prosecutors, as lawyers, are engaged in an
oratorical profession. As such, and in consonance with our adversarial method of ascertaining
the truth, we properly afford counsel on both sides latitude for forceful and
graphic advocacy. Our countenance of a certain measure of verbal flair is, however,
tempered by the command that prosecutors are charged not simply with the task
of securing victory
for the State but, more fundamentally, with seeing that justice
is served. Absolute adherence to this duty is stringently compelled in capital cases
where the penalty is death. Accordingly, prosecutors should not make inaccurate legal or
factual assertions during a trial and . . . must confine their comments
to evidence revealed during the trial and reasonable inferences to be drawn from
that evidence.
[State v. Reddish,
181 N.J. 553, 640-41 (2004) (citations and internal quotation marks
omitted).]
In sum, we acknowledge that “[p]rosecutors may fight hard, but they must also
fight fair.” State v. Pennington,
119 N.J. 547, 577 (1990).
For those reasons, we gauge the consequences of prosecutorial misconduct or error differently.
We “evaluat[e] the severity of the misconduct and its prej
udicial effect on the
defendant
’s right to a fair trial” and conclude that “prosecutorial misconduct is not
grounds for reversal of a criminal conviction unless the conduct was so egregious
as to deprive defendant of a fair trial.” State v. Papasavvas (I),
163 N.J. 565, 625 (2000) (quoting State v. Timmendequas (I),
161 N.J. 515, 575-76
(1999), cert. denied,
534 U.S. 858,
122 S. Ct. 136,
151 L. Ed. 2d 89 (2001) (citations omitted)). Thus, “[t]o justify reversal, the prosecutor’s conduct must
have been ‘clearly and unmistakably improper,’ and must have substantially prejudiced defendant’s fundamental
right to have a jury fairly evaluate the merits of his defense.” Ibid.
Also, “the Court should consider “whether defense counsel made a timely and proper
objection, whether the remark was withdrawn promptly, and whether the court ordered the
remarks stricken from the record and instructed the jury to disregard them.” Ibid.
Next, “[the] court must also decide whether the prosecutor’s misconduct constitutes grounds for
a new trial . . . because, in order to justify reversal, the
misconduct must have been so egregious that it deprived the defendant of a
fair trial.” State v. Smith,
167 N.J. 158, 181 (2001) (citations and internal
quotation marks omitted). In sum, “to warrant a new trial the prosecutor’s conduct
must have been clearly and unmistakably improper, and must have substantially prejudiced defendant’s
fundamental right to have a jury fairly evaluate the merits of his defense.”
Id. at 181-82 (citations and internal quotation marks omitted). It is in that
context that we consider defendant’s prosecutorial misconduct or error claims.
1. Objections to the State’s Opening Statement.
a. Improper vouching.
In the course of his opening statement to the death penalty jury, the prosecutor stated that “[t]he State does not seek the death penalty on a routine basis. It is not something that we do lightly. The State seeks the death penalty when the State believes the facts call for it.” Defendant claims that “[t]his is a textbook example of prohibited vouching, in that it amounts to the prosecutor invoking the authority and presumably superior knowledge and experience of the State to provide the ju