(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 December 3, 1996 -- Decided August 20, 1997
Coleman, J., writing for the Court.
In this appeal, defendant challenges his murder conviction and death sentence.
On July 18, 1993, the six-year-old victim, L.G., her mother, and two sisters were visiting relatives in
Asbury Park. The children were playing in the fenced-in backyard. Defendant lured L.G. away from the
other children and eventually picked her up, lifted her over the fence, and walked away with her. The other
children went and told L.G.'s mother what had occurred. L.G.'s mother, adult relatives, and neighbors
searched for L.G. and called out to her, but they could not locate her. The Asbury Park Police Department
was contacted and joined in the search. Within a few hours after her disappearance, L.G.'s body was found
under a porch of an abandoned house. L.G. was lying on her back on a mattress with her shirt pulled up,
her panties at her ankles, a pair of men's boxer shorts over her face, and her vaginal area exposed and
bloodstained. Defendant lived under that porch, and many of his personal belongings, including a wallet
with his social security card, were recovered there.
Defendant became a suspect almost immediately. He was located the next day and taken to police
headquarters for questioning. He was read his Miranda rights and signed a waiver form. He initially denied
any involvement in the death of L.G. A detective confronted defendant with the evidence that the police had
against him and told him that they would seek a court order to obtain forensic evidence from his person. No
law-enforcement officer informed defendant that he was facing a potential death sentence. Instead, they told
him that the perpetrator was facing a term of life imprisonment with thirty years of parole ineligibility.
Defendant then confessed to causing L.G.'s death. He stated, however, that he was drunk and it was an
accident. He also confessed to having had vaginal intercourse with L.G.
An autopsy revealed numerous internal injuries to L.G.'s vaginal area. She also had swelling of her
neck, lungs and brain. The medical examiner concluded that the injuries to L.G.'s neck, lungs, and brain
were consistent with asphyxia caused by manual strangulation. He also concluded that the pressure probably
had been applied to the neck for approximately four to six minutes.
At the guilt-phase trial, the defense conceded defendant's guilt of felony murder, kidnapping, and
aggravated sexual assault. It challenged the State's theory that the murder was purposeful or knowing,
claiming that the killing occurred accidentally during the course of an aggravated sexual assault. In May
1995, the jury convicted defendant of kidnapping, aggravated sexual assault, felony murder, and purposeful-or-knowing murder by his own conduct.
The penalty phase was conducted before the same jury. The State relied on three aggravating
factors: the murder involved depravity of mind; the murder occurred during the commission of an aggravated
sexual assault or kidnapping; and the murder was committed to escape detection. The defense presented
mitigating evidence about defendant's tragic childhood, which was replete with numerous foster care
placements, abuse, neglect, and exposure to violence, drugs, and alcohol. The jury found that the State had
proven defendant committed the murder to escape detection and in the course of committing aggravated
sexual assault and kidnapping. It also found, however, that the State had failed to prove the aggravating
factor of depravity. The jury found the existence of various mitigating factors, but that the two aggravating
factors together outweighed the mitigating factors beyond a reasonable doubt.
After the jury was discharged, the parties discovered that a graphic photo of the wounds on L.G.'s
genitalia accidentally had been submitted to the jury during the penalty phase. The trial court subsequently
denied defendant's motion for a non-death verdict or a new penalty-phase trial, concluding that the
submission of the photo had not prejudiced defendant because it had been admitted into evidence during the
guilt phase.
HELD: Except for the aggravated-sexual-assault conviction, which must merge into the kidnapping conviction,
defendant's convictions are affirmed. Defendant's death sentence is affirmed.
1. Defendant was not denied an impartial jury because a juror sought employment with the Monmouth
County Prosecutor's Office shortly after the trial. After an evidentiary hearing, the trial court found that the
juror had not intended to seek employment at the Prosecutor's Office until after the trial and that her
obtaining employment there was “happenstance.” Those findings are supported by credible evidence in the
record. Absent supporting evidence, defendant's assertion that the juror had an incentive to ingratiate
herself with the Prosecutor's Office by convicting and returning a death sentence is pure speculation. The
same juror's failure to reveal that she had a cousin in federal prison does not warrant reversal, because
defendant cannot show that he would have challenged the juror if this information was revealed. (pp. 10-16)
2. The trial court's conclusion that defendant's confession and statements were made after a knowing and
voluntary waiver of defendant's Miranda rights is supported by the record. The investigating officer's
statement to defendant that the perpetrator faced life imprisonment was not entirely inaccurate. The death
penalty only comes into play when the prosecutor, not police officers, charges the murder is death-eligible
and gives notice of at least one aggravating factor. Although a police officer may suspect that the murder
will be death-eligible, the officer has no way of knowing for sure. Moreover, the investigating officer's
statement was not a promise of life imprisonment, but rather an attempt to convey the seriousness of the
charges defendant was facing and the strong case the police were building against him. (pp. 18-22)
3. There was no error in the trial court's refusal to charge that the jury could find defendant guilty of the
general crime of murder without being unanimous about the type of murder committed -- namely,
purposeful-or-knowing murder or felony murder. Because the mens rea for purposeful-or-knowing murder is
different from that required for felony murder, the Court does not believe that the Legislature intended to
create a unified crime of murder. Aside from the absence of any legislative intent to create a unified crime
of murder, the intermingling of death-eligible murder with non-death-eligible murder would create utter
chaos when instructing a jury. Nor did the trial court's refusal to instruct the jury to consider purposeful-or-knowing murder and felony murder together contravene this Court's jurisprudence on sequential
presentation of charges. There is nothing inherently wrong with a sequential charge, provided care is taken
to avoid stratification of thought that would deter a jury from returning the proper available verdict.
(pp. 23-41)
4. It was not necessary that the jury be instructed during the guilt phase of defendant's potential prison
sentence if he were convicted of the non-capital offenses. To the extent that prior cases may be understood
to require the jury to be instructed during the guilt phase what the potential sentence is for each noncapital
offense, they are overruled. An ultimate-outcome charge during the guilt phase is not required. (pp. 41-53)
5. The trial court's submission to the jury of the inconsistent aggravating factors of depravity and murder to
escape detection was error. The error, however, was harmless. The trial court charged the jury that it could
not find both of these factors because they were mutually exclusive, and also that it could not use evidence of
depravity when considering the other aggravating factors. (pp. 56-60)
6. The trial court erred in instructing the jury it could consider evidence presented in the guilt phase, especially photographic evidence, in its deliberations during the penalty phase. Given the minimal relevance of the photos to the aggravating factors, the existence of other evidence supporting the escape detection
aggravating factor, and the trial court's other instructions, the Court concludes that the photos did not cause
the jury to reach a decision it would not otherwise have reached. (pp. 62-69)
7. The accidental submission to the jury during the penalty phase of a graphic photo depicting the victim
lying on her stomach with her legs spread open during the autopsy did not prejudice defendant. The photo
would have been admissible if offered by the State, it was reviewed by the jury during the guilt phase, and
the trial court gave cautionary instructions regarding the use of graphic photos. (pp. 70-74)
8. The State does not have the burden of disproving mitigating factors after the defendant has come forth
with credible evidence in mitigation. The jury has the discretion to accept or to reject mitigating evidence
regardless whether the State affirmatively challenges that evidence. (pp. 75-79)
9. The Court rejects defendant's other arguments on appeal, with the exception of his claim that the
aggravated-sexual-assault conviction should have merged into the kidnapping conviction. (pp. 79-92)
Defendant's convictions and capital and noncapital sentences are AFFIRMED, except for the
aggravated-sexual-assault conviction, which must merge with the kidnapping conviction. The conviction and
sentence for aggravated sexual assault are vacated and REMANDED for the entry of an amended judgment.
JUSTICE STEIN, concurring, agrees with the Court's opinion, except that he is of the view that the
Court no longer should adhere to prior cases that require the guilt-phase jury to be informed of a
defendant's specific sentencing exposure for charged noncapital homicide offenses.
JUSTICE POLLOCK, concurring in part and dissenting in part, is of the view that the Court's
precedent establishes that accurate instructions are essential to the jury's determination whether a defendant
was subject to the death penalty. Instead of following that precedent here, the majority overrules it.
Substantially for the reasons set forth in Point I of Justice Handler's dissent, Justice Pollock would reverse
the imposition of the death penalty.
JUSTICE HANDLER, dissenting, is of the view that in the guilt phase, the trial court effectively
prevented the jury from fully understanding the consequences of the death-eligibility determination through
the following errors: keeping from the jury knowledge of the sentence for felony murder while providing it
with knowledge of the penalties for purposeful-or-knowing murder; failing to present the two different forms
of murder in a way that would have enabled the jury to consider them in conjunction with one another; and
refusing to instruct the jury that it could reach a nonunanimous, non-death-eligible murder verdict split
between purposeful-or-knowing murder and felony murder. He is also of the view that errors in the penalty
phase (submitting mutually exclusive aggravating factors to the jury and the accidental submission of a
gruesome autopsy photograph to the jury) combined to inject a degree of arbitrariness and irrationality that
no court should tolerate.
CHIEF JUSTICE PORITZ and JUSTICE GARIBALDI join in JUSTICE COLEMAN's opinion.
JUSTICE STEIN has filed a separate concurring opinion. JUSTICE POLLOCK has filed a separate
opinion, concurring in part and dissenting in part, in which JUSTICE O'HERN joins. JUSTICE
HANDLER has filed a separate dissenting opinion, Point I of which JUSTICE POLLOCK joins, and Points
I and II.A. of which JUSTICE O'HERN joins.
SUPREME COURT OF NEW JERSEY
A-99/
100 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
DAVID COOPER,
Defendant-Appellant
and Cross-Respondent.
Argued December 3, 1996 -- Decided August 20, 1997
On appeal from the Superior Court, Law
Division, Monmouth County.
Stephen W. Kirsch, and Linda Mehling,
Assistant Deputy Public Defenders, argued the
cause for appellant and cross-respondent
(Susan L. Reisner, Public Defender,
attorney).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for respondent and cross-appellant (Peter Verniero, Attorney General
of New Jersey, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
In May 1995, a Monmouth County jury convicted defendant,
David Cooper, of the kidnapping, aggravated sexual assault,
felony murder, and purposeful-or-knowing murder of L.G., a six
year-old girl, by his own conduct. The same jury sentenced him
to death. This is defendant's direct appeal from his conviction
for capital murder and sentence of death. R. 2:2-1(a)(3). We
affirm both the conviction and the sentence of death.
Procedural and Factual History
A Monmouth County Grand Jury indicted defendant on the
following charges: purposeful-or-knowing murder by his own
conduct, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count one);
felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count two);
first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b (count
three); and two counts of first-degree aggravated sexual assault,
contrary to N.J.S.A. 2C:14-2a(1) and 2C:14-2a(3) (counts four and
five alleging rape and sodomy).
The State's theory at trial was that defendant kidnapped the
victim and took her underneath a porch where he raped her and
then strangled her to escape detection or apprehension. An
alternative theory was that defendant murdered the victim in the
course of an aggravated sexual assault or kidnapping.
At trial, the defense conceded defendant's guilt of felony
murder, kidnapping, and aggravated sexual assault. The defense
contested, however, that the murder was purposeful or knowing.
Instead, defendant contended that the killing had occurred
accidentally during the course of an aggravated sexual assault.
Thus, he claimed that there had been no intent to strangle the
child but rather that death had been caused by unintentionally
placing pressure on her carotid artery for about thirty seconds.
Guilt Phase
On July 18, 1993, the six-year-old victim, L.G., her mother,
R.G., and the victim's two sisters were at the home of R.G.'s
sister-in-law, M.W., in Asbury Park. While M.W. was at the
supermarket, R.G. sat on the front porch of the house with her
youngest daughter. The victim and her other sister were with
M.W.'s daughter playing in the frontyard. After playing in the
frontyard for some time, the children moved into a fenced-in
backyard.
While they were playing in the backyard, defendant lured the
victim away from the other children and eventually picked her up,
lifted her over the fence, and walked away with her. The other
children went to the frontyard and told R.G. what had occurred.
R.G., joined by M.W., who had just returned from the supermarket,
began to search for and to call out to L.G., but they could not
locate her. Soon after, neighbors joined in the search.
The Asbury Park Police Department was contacted shortly
after L.G.'s disappearance, and police officers also joined the
search. Within a few hours after the victim had disappeared, her
body was found under a porch of an abandoned house. Defendant
lived under that porch. L.G. was found lying on her back on a
mattress with her shirt pulled up, her panties at her ankles, a
pair of men's boxer shorts over her face, and her vaginal area
exposed and bloodstained.
The police found clothing and a bloodstained paper towel at
arms's length from L.G.'s body. The police also found a gym bag
that contained a wallet. Inside the wallet was defendant's
social-security card. Defendant's latent fingerprints were found
on a paper bag and on a malt-liquor bottle in the porch area.
Several letters, photographs, and other documents in defendant's
name were also found in the area.
That night, the police interviewed witnesses to the
abduction, and defendant became a suspect almost immediately.
Defendant was located the next day and was taken to police
headquarters for questioning. The State concedes that defendant
was in custody at that time. He was read his Miranda rights, and
he signed a form waiving his rights to remain silent and to
counsel. At that time, defendant denied any involvement in the
child's death.
Soon thereafter, Detective John Musiello confronted
defendant with the evidence that the police had against him and
told him that they would seek a court order to obtain forensic
evidence from his person. No law-enforcement officer, however,
informed defendant that he was facing a potential death sentence.
Instead, they told him that the perpetrator was facing a term of
life imprisonment with thirty years of parole ineligibility.
Defendant then confessed to causing L.G.'s death. According
to slightly varying police testimony, he dropped his head and
stated either: (1) "It was an accident. I did it. I was
drunk;" or (2) "It's an accident. I was drunk. I strangled
her." Defendant explained that he had seen children playing at
M.W.'s house on his way to the porch of the abandoned house and
that he had told L.G. to come to him. He lifted her over the
fence and led her underneath the porch of the abandoned house.
Defendant then stated, "Then we had sex, and I strangled her" and
that he had left her body underneath the porch. After further
questioning, defendant admitted that he had ejaculated and that
he had worn a condom which he later had discarded in a nearby
field.
Defendant subsequently signed a formal written statement, in
which he described the sexual penetration of L.G. as vaginal and
stated that she had bled from her vagina during the penetration,
causing blood to get on defendant's clothes. He also told the
police that he had been on top of L.G. during the penetration and
that his hands had been on her neck.
An autopsy of L.G.'s body revealed dried blood on the skin
of her lower abdomen and external genitalia. Numerous internal
injuries were found in her vaginal canal and cervix. Her hymen
was not intact. Her anal canal also showed signs of injury. The
autopsy revealed swelling in L.G.'s trachea and lungs, petechial
hemorrhages on the outer surface of the thymus, and swelling in
her brain.
The medical examiner concluded that the injuries on and
around L.G.'s neck, the edema in her lungs, and the swelling in
her brain were consistent with asphyxia caused by manual
strangulation. He also concluded that pressure probably had been
applied for approximately four to six minutes because, for edema
to form in the lungs, pressure would have had to have been
applied for three to six minutes, and for irreversible brain
damage to occur from lack of oxygen, pressure would have had to
have been applied for four to six minutes.
The police obtained seven discarded condoms from a field,
close to the abandoned house, to which defendant had led them,
and obtained from defendant samples of his hair, saliva, and
blood. None of the condoms tested positive for semen, although
one had blood on it. Blood was found on the paper towel
discovered under the porch, on the cushion on which L.G. had been
found, on two pairs of sneakers found under the porch, and on
defendant's jeans, t-shirt, and boxer shorts. No semen was found
on L.G.'s clothes or person. Four pubic hairs found on L.G. were
consistent with defendant's pubic hair, although they could not
be linked to him conclusively.
Penalty Phase
The penalty phase was conducted before the same jury. The
State relied on three aggravating factors: (1) that the murder
was outrageously or wantonly vile, horrible, or inhuman in that
it involved depravity of mind, N.J.S.A. 2C:11-3c(4)(c); (2) that
the murder occurred during the commission of an aggravated sexual
assault or kidnapping, N.J.S.A. 2C:11-3c(4)(g); and (3) that the
purpose of the murder was to escape detection or apprehension,
N.J.S.A. 2C:11-3c(4)(f). Defendant's mitigating evidence was
limited to his life up to the age of seventeen. The defense,
under the "catch-all" mitigating factor, N.J.S.A. 2C:11-3c(5)(h),
submitted eighteen mitigating circumstances related to
defendant's life.
The defense presented an enormous amount of mitigating
evidence about defendant's tragic childhood, which was replete
with numerous foster care placements, abuse, neglect, and
exposure to violence, drugs, and alcohol. Several experts
testified that the lack of stability in defendant's life, his
exposure to violence, and his lack of a relationship with his
mother had affected him in numerous ways, such as making him
aggressive and unable to empathize with others, as well as by
reducing his ability to understand cause and effect. The defense
also presented expert testimony that, as a result of defendant's
upbringing, he was extremely emotionally disturbed and that he
had not developed normally.
The State's strategy during the penalty phase was to
emphasize the good aspects of defendant's childhood. The
prosecutor thus elicited testimony from defendant's relatives
about the positive aspects of his familial and foster-care
relationships, which the prosecutor argued in summation.
The State rebutted defendant's expert mitigating evidence by
presenting testimony that defendant's personality disorder was
not treatable. The State's expert also testified that
defendant's childhood would not prevent him from knowing the
difference between right and wrong and would not make him unable
to control his actions.
The jury unanimously found that the State had proven that
defendant had committed the murder to escape detection, N.J.S.A.
2C:11-3c(4)(f), and that he had done so in the course of
committing aggravated sexual assault and kidnapping, N.J.S.A.
2C:11-3c(4)(g). The jury, however, unanimously found that the
State had failed to prove the existence of the c(4)(c)
aggravating factor, namely, that the murder had involved
depravity, N.J.S.A. 2C:11-3c(4)(c). Some or all of the jurors
found the following mitigating factors: (1) that defendant had
been denied nurturing as an infant (6 jurors); (2) that he had
been born to drug and alcohol-dependent parents (12 jurors); (3)
that drinking by his mother during pregnancy had contributed to
defendant's physical and developmental disabilities (2 jurors);
(4) that his father had abused members of the family when
defendant was an infant, thereby exposing him to violent and
abusive behavior (8 jurors); (5) that his mother had abandoned
him with relatives throughout his youth (3 jurors); (6) that his
mother had neglected and abused him because of her own upbringing
and dependence on alcohol (10 jurors); (7) that throughout his
childhood, he had been exposed to excessive amounts of domestic
violence and substance abuse (10 jurors); (8) that he had
suffered through multiple placements and periodically had
attended 11 different schools (10 jurors); (9) that he had been
denied consistent treatment throughout childhood despite
identification of emotional and psychological problems (3
jurors); (10) that his background had increased significantly his
risk of engaging in substance abuse and antisocial behavior (8
jurors); (11) that he had been allowed to abuse drugs and alcohol
at an early age (6 jurors); (12) that he had begun acting out
during his childhood because of unresolved and untreated
emotional disturbances (6 jurors); (13) that during his
childhood, he had been exposed periodically to an unstable father
(6 jurors); (14) that he had been deprived of a stable nurturing
home throughout his childhood (5 jurors); (15) that he had not
been provided with recommended and necessary therapy (4 jurors);
and (16) that the sudden death of his mother had left him with
unresolved grief issues that were not addressed through therapy
(6 jurors). The jury unanimously rejected the following two
factors: (1) that defendant had been denied exposure to proper
role models during his childhood; and (2) the "any other reasons
not mentioned" factor.
However, the jury unanimously found that the two aggravating
factors together outweighed the mitigating factors beyond a
reasonable doubt. Defendant was accordingly sentenced to death.
After the jury was discharged, the parties discovered that a
graphic photo of wounds on the victim's genitalia accidentally
had been submitted to the jury during the penalty phase. The
trial court subsequently denied defendant's motion for a non-death verdict or, in the alternative, a new penalty-phase trial,
concluding that the accidental submission of the photo had not
prejudiced defendant because it had been admitted into evidence
during the guilt phase.
That same day, the trial court sentenced defendant on the
noncapital counts. The court merged the felony-murder conviction
into the purposeful-or-knowing-murder conviction and sentenced
defendant to thirty years to life. The two counts of aggravated
sexual assault were merged with each other. The court then
sentenced defendant on the kidnapping conviction to fifty years
of imprisonment with a twenty-five-year parole-ineligibility bar
and on the aggravated-sexual-assault conviction to a consecutive
twenty-year term with a ten-year parole bar.
Jury Selection
Defendant asserts that he was denied an impartial jury
because of juror Maria Hollenback's alleged intent, formed during
the trial, to seek employment at the Monmouth County Prosecutor's
Office. Defendant also contends that he was prejudiced by her
omission during voir dire of the fact that her cousin was an
inmate in a federal prison. For those reasons, defendant
maintains that he is entitled to a new trial. Following an
evidentiary hearing, the trial court found that Hollenback had
not intended to seek employment at the Prosecutor's Office until
after the trial and that her obtaining employment there was
"happenstance." The court also concluded that her failure to
reveal her cousin's status as an inmate had been neither
deliberate nor prejudicial.
Employment at Prosecutor's Office
Defendant contends that, given the incredibly short time
span between the verdict and Hollenback's application and the
numerous instances of her alleged perjury at the evidentiary
hearing, the trial court clearly abused its discretion in
concluding that she had never contemplated, during the trial,
seeking employment at the Prosecutor's Office and that she had no
ulterior motive in convicting and sentencing defendant.
We reject defendant's contention that the trial court erred
in making factual findings that undermine his claim. The scope
of our appellate review of those findings is limited to a
determination of whether they are supported by credible evidence
in the record. State v. Johnson,
42 N.J. 146, 162 (1964). The
trial court heard the testimony and saw the witnesses, thereby
placing it in a much better position than this Court to judge
credibility. The trial court recognized the inconsistencies in
Hollenback's testimony, but nevertheless found her to be candid.
Implicit in that finding was the inability of the defense to
offer any direct evidence that she had contemplated employment
during the pendency of the trial.
We reject defendant's assertion that Hollenback would have
had an incentive to ingratiate herself with the Prosecutor's
Office by convicting and returning a death sentence. Absent
supporting evidence, that possibility is pure speculation and
assumes that Hollenback disregarded her oath for personal gain.
The presumption that she followed her oath has not been rebutted.
See State v. LaFera,
42 N.J. 97, 110 (1964).
Omission During Voir Dire
Defendant also seeks reversal of his conviction based on
Hollenback's omission, during voir dire, that she had a cousin in
federal prison. When a juror incorrectly omits information
during voir dire, the omission is presumed to have been
prejudicial if it had the potential to be prejudicial. In re
Kozlov,
79 N.J. 232, 239 (1979); Wright v. Bernstein,
23 N.J. 284, 293-96 (1957); State v. Scher,
278 N.J. Super. 249, 262-68
(App. Div. 1994), certif. denied,
140 N.J. 276 (1995). As the
Court stated in In re Kozlov, supra:
Where a juror on voir dire fails to
disclose potentially prejudicial material,
such as that involved in this case, a party
may be regarded as having been denied [a]
fair trial. This is not necessarily because
of any actual or provable prejudice to his
case attributable to such juror, but rather
because of his loss, by reason of that
failure of disclosure, of the opportunity to
have excused the juror by appropriate
challenge, thus assuring with maximum
possible certainty that he be judged fairly
by an impartial jury.
[79 N.J. at 239.]
In its application, however, that rule is not as all-encompassing as it appears at first glance. Although the rule
does not require a litigant to demonstrate prejudice by showing
that an improperly empaneled juror did not decide the case
fairly, Wright, supra, 23 N.J. at 295, it does require a litigant
to demonstrate that, had he or she known of the omitted
information, he or she would have exercised a peremptory
challenge to exclude the juror. Id. at 294. That is so because
[o]nce the jury is sworn, . . . the law
presumes that every juror in a case is
indifferent and above legal exception, or
otherwise he would have been challenged for
cause. This presumption puts a duty on a
party to show that they were or would have
been dissatisfied with the jury as finally
impaneled, and that they would have exercised
the right of additional peremptory challenges
given them by statute if they were aware of
the true situation.
[Ibid. (emphasis added).]
In Wright, supra, the Court concluded that it had "no doubt
had the prospective juror answered the inquiry truthfully, he
would have been peremptorily challenged," thus causing it to
sustain the claim of prejudice. 23 N.J. at 294. Absent an
affirmative showing that a litigant would have exercised a
peremptory challenge to exclude a juror, the voir dire omission
is harmless. See Scher, supra, 278 N.J. Super. at 266-68. Such
a rule makes sense because if a litigant would not have
challenged the juror, the litigant could not have been
prejudiced.
In the present case, it is highly unlikely that defendant
would have exercised a peremptory challenge to excuse Hollenback
had she disclosed her cousin's imprisonment. Her answers during
voir dire indicated that she could be receptive to psychiatric
testimony and to mitigating evidence about defendant. For
example, at one point, defense counsel asked her about her
impression of the effects of a child's upbringing on his or her
future behavior:
Q: . . . You also mentioned that -- an
interesting observation. Everybody
has the potential to do wrong
thinks [sic] but some people, they
get a better chance at not doing
the wrong thing or better
opportunities to --
A: Yes.
Q: Could you explain --
A. My observation -- in my observation
--
Q: Yeah. Sure that's what we want.
A: Children, for example, whose
parents bring them up, what we say
is denominational of the Lord, we
bring them up knowing right from
wrong. In my observation, limited
observation, those children, myself
included, tend to, you know, have a
narrow perimeter of behavior, you
know.
Q: Of right and wrong? You're more .
. . aware of it, is that what
you're saying?
A: I guess if you are polished more.
I don't know why it is. I know
there are things that in my
observation children are brought up
with that, within those perimeters
and [t]hey're better behaved just
altogether, yeah.
Q: Now, as I explained that process,
do you think that you could
possibly consider the background of
Mr. Cooper or perhaps when he was a
child, when he was first being
raised, could you consider that in
the weighing process and determine
whether he should live or die?
A: Sure.
Q: You say that with quite certainty.
Can you explain that more to me.
A: Yes.
Q: Why do you say it so certain?
A: Because as I said to you before, I
think how a child is brought up is
relevant as he behaves as an adult
or even as a child, sure.
Thus, during voir dire, Hollenback did not appear to be in any
way a "bad" defense juror.
The question then becomes whether the additional information
would have changed defense counsel's acceptance of Hollenback.
We are satisfied that it would not. First, she testified at the
remand hearing that she was not close to her cousin, having
neither seen him nor spoken to him since 1950. Second, as for
her attitude toward those sent to prison, she stated that she
occasionally sent Christmas cards to her cousin.
This information did not make Hollenback a less desirable
juror from a defense perspective. Perhaps it is for that reason
that defendant does not elaborate even in the most hypothetical
way on the prejudice that he suffered vis-a-vis the omission and
does not even assert that he would have struck Hollenback from
the jury, simply stating that the omission "deprived [him] . . .
of information necessary to make intelligent use of his
peremptory challenges." That, however, simply is not the test
under our law.
We conclude that the events surrounding Hollenback's
employment with the Monmouth County Prosecutor's Office do not
constitute reversible error. We also conclude that her voir dire
omission was harmless.
Alleged Death Qualification of Juror
The essence of defendant's argument is that the trial court
erred by granting the prosecutor's motion to dismiss juror Fred
Rummel for cause because of his relatively uncommitted views on
capital punishment. Defendant stresses that a capital juror may
not be removed for cause simply because the State does not like
his views on the death penalty and that, in order to be removed
for cause, the juror's qualms about capital punishment must
prevent him from following the law. Defendant relies on Gray v.
Mississippi,
481 U.S. 648, 664-65,
107 S. Ct. 2045, 2054-55,
95 L. Ed.2d 622, 637 (1987), and asserts that an erroneous
exclusion in this context can never be harmless.
A capital juror may only be excused for cause based on his
or her views on the death penalty if such views would
substantially impair his or her ability to follow the law during
the trial. Adams v. Texas,
448 U.S. 38, 45,
100 S. Ct. 2521,
2526,
65 L. Ed.2d 581, 589 (1980); State v. Martini,
131 N.J. 176, 210 (1993) (Martini I), cert. denied, ___ U.S. ___,
116 S.
Ct. 203,
133 L. Ed.2d 137 (1995); State v. Ramseur,
106 N.J. 123, 255-56 (1987). Here, Rummel clearly stated that, although
he was sympathetic to the possibility of rehabilitation, he
believed in the death penalty and could impose it. He was thus
not death-excludable.
A review of the record, however, reveals that Rummel was not
excused because of his views on capital punishment. The
prosecutor based her motion to excuse Rummel for cause on
numerous responses that he gave, including his ambiguous views on
the death penalty, his inconsistent responses, and his failure to
disclose his political activities. She never argued that he was
death-excludable. Moreover, contrary to defendant's assertion,
the trial court did not "adopt[] the State's reasoning" regarding
the death penalty. Indeed, the court never even mentioned
Rummel's views on the death penalty in granting the prosecutor's
motion. Instead, it stressed the other irregularities in his
testimony and answers on the juror questionnaire.
Apart from the lack of evidence of death-qualification,
defendant cannot plausibly claim that he was prejudiced by
Rummel's dismissal. First, Rummel expressed no qualms about
capital punishment. Second, although he later disavowed it, he
stated in his questionnaire that he could not consider child
abuse as mitigating evidence, which was the core of defendant's
penalty-phase defense. Third, he stated on his questionnaire
that, given the brutal circumstances of the case, he would not be
able to judge the case impartially, although he later abandoned
that view in court. Fourth, he had served as a juror in a prior
murder case in which the jury had returned a guilty verdict.
Finally, he stated that he knew a police officer involved in the
case. In sum, many defense attorneys would have characterized
Rummel as anti-defense and would have considered him to be a
liability were he to be selected to serve on a jury. Hence, we
find defendant's claim to be without merit.
Admission of Defendant's Statements
Defendant contends that his confession statement to the
Asbury Police Department was involuntary because it was induced
by a police officer's material misrepresentation that he would
face only a prison term, rather than a possible death sentence,
for the murder. Defendant maintains that the admission of the
statement at trial violated his rights under the Fifth and
Fourteenth Amendments to the Federal Constitution, and Article I,
paragraph 10, of the New Jersey Constitution.
On the night of his arrest, defendant provided the police
with oral and written statements, in which he made numerous
incriminating remarks regarding the kidnapping, rape, and murder
of L.G. He moved to suppress the statements, arguing that they
had been involuntarily obtained. The trial court held a hearing
on July 8, 1994, during which Officer Valerie Williams, Detective
John Musiello, and defendant testified. On August 4, 1994, the
court held that defendant had voluntarily made the statements,
and that they were admissible.
At issue during the hearing, among other things, was
Detective Musiello's statement to defendant, after defendant had
denied any involvement in killing L.G. and immediately before
defendant confessed. Detective Musiello stated that
the person that did this would be charged
with murder and would be facing life
imprisonment with a minimum of thirty years
parole. I told him the person that did this,
we had witnesses and we had forensic evidence
and, again, we would be looking for Court
orders to get exemplars and have the
witnesses review photographs or persons in
person.
Detective Musiello admitted that he had not informed defendant
that the death penalty was a potential punishment for the murder.
Defendant testified that
Detective Fazio . . . drew a diagram . . .
[w]ith a seven on one side of a line and
fifty on the other side of the line. And he
told me if I confess to the crime, he would
say that all I would get is a manslaughter
charge which would be seven years. He said
if I do not work with them, he would say I
would get fifty or more years. He says, we,
meaning him and the other detectives, were
being nice to you, but you keep fucking us
around we're going to send the other
detectives in here, and they're not going to
be as nice as we have been to you.
In denying defendant's suppression motion, the trial court found that Detective Musiello had told defendant that he was facing thirty years in prison without parole. However, the court did not find the statement to be threatening, instead the court characterized it as "kind of factual." The court also found that the detectives had not promised defendant a reduced sentence; they simply had informed him "what the facts were." The court concluded that the statement was voluntary and that defendant was intelligent and strong enough not to be intimidated by the officers.
Defendant's claim raises a mixed factual-legal issue: whether Detective Musiello's statement about thirty years of imprisonment being the punishment for murder rendered defendant's waiver involuntary or unknowing. Defendant has not raised on appeal any other grounds for suppression despite his testimony at
the suppression hearing that he had feared physical abuse during
the interrogation.
A custodial confession is admissible only if there has been
a knowing, intelligent, and voluntary waiver of Miranda rights.
Miranda v. Arizona,
384 U.S. 436, 444,
86 S. Ct. 1602, 1612,
16 L. Ed.2d 694, 707 (1966). To determine voluntariness, courts
examine the totality of the circumstances. State v. Galloway,
133 N.J. 631, 654 (1993). Although misrepresentations by police
officers to the subject of an interrogation are relevant in
analyzing the totality of the circumstances, People v. McClary,
571 P.2d 620, 626 (Cal. 1977) (holding that confession was
involuntary based on various circumstances of interrogation,
including misrepresentation about defendant's death-eligibility),
misrepresentations alone are usually insufficient to justify a
determination of involuntariness or lack of knowledge. Frazier
v. Cupp,
394 U.S. 731, 739,
89 S. Ct. 1420, 1425,
22 L. Ed.2d 684, 693 (1969); Galloway, supra, 133 N.J. at 653-57; State v.
Miller,
76 N.J. 392, 402-05 (1978); State v. LaPointe,
678 A.2d 942, 960-61 (Conn.), cert. denied, __ U.S. __,
117 S. Ct. 484,
136 L. Ed.2d 378 (1996); State v. Register,
476 S.E.2d 153, 158-59 (S.C. 1996), cert. denied, __ U.S. __,
117 S. Ct. 988,
136 L.
Ed.2d 870 (1997). Moreover, a misrepresentation by police does
not render a confession or waiver involuntary unless the
misrepresentation actually induced the confession. People v.
Benson,
802 P.2d 330, 344-45 (Cal. 1990) (holding that comment by
officer that case was not death-eligible did not render
confession involuntary because comment did not cause defendant to
confess).
The statement by Detective Musiello is not entirely
inaccurate. As the State emphasizes, the ordinary sentence for
murder is life imprisonment with thirty years of parole
ineligibility. N.J.S.A. 2C:11-3b. The death penalty only comes
into play when the prosecutor, not police officers, charges a
death-eligible form of murder under N.J.S.A. 2C:11-3c, and
submits notice of at least one aggravating factor. N.J.S.A.
2C:11-3c(2)(e); R. 3:13-4(a). Although a police officer may
suspect that the murder will be death-eligible, the officer has
no way of knowing for sure.
The totality of the circumstances involved more than a
statement about potential sentences. Detective Musiello also
informed defendant about the investigatory steps that were being
taken to tie him to the murder. Considered as a whole, the
statement that induced defendant to confess was not a promise of
"mere" life imprisonment, but rather an attempt to convey to
defendant the seriousness of the offense, the seriousness of the
sentence that he was facing, and the strong case that the police
officers were building against him. Although the statements by
the police might have included some puffery, they were, as the
trial court described them, "factual."
Given the totality of the circumstances, the atmosphere
during defendant's interrogation and confession was not coercive.
The trial court found that defendant's confession was given after
a knowing and voluntary waiver of his Miranda rights. That
conclusion is supported by the record. Johnson, supra, 42 N.J.
at 162. We thus affirm that finding.
Jury Instruction, Guilt Phase
Defendant has raised several claims based on his assertions
that the jury instructions failed to make the jury aware of the
legal effect of its findings. He maintains that the jury should
have been instructed under a "unified-murder charge," where the
sole issue before the jury would be defendant's state of mind
during the murder. He also complains that the sequential
presentation of the murder charge deprived him of an opportunity
for the jury to convict him of noncapital felony murder.
Finally, he contends that it was reversible error not to give an
ultimate-outcome charge during the guilt phase regarding the
sentence for felony murder.
Unified-Murder Charge
During the guilt phase, defendant requested that the trial
court charge the jury that it could find him guilty of the
general crime of murder without being unanimous about the type of
murder he had committed, namely, purposeful-or-knowing murder or
felony murder. Because felony murder is not death-eligible, a
verdict split between purposeful-or-knowing murder and felony
murder would be a non-death-eligible murder conviction.
Defendant argued that this Court's holding in State v.
Brown,
138 N.J. 481, 509-14 (1994) (requiring instruction on
possibility of nonunanimity in determination of principal-liability murder versus accomplice-liability murder), compelled a
similar instruction on nonunanimity in the context of felony
murder versus purposeful-or-knowing murder. Defendant also
relied on State v. Mejia,
141 N.J. 475, 486-87 (1995) (requiring
instruction on possibility of nonunanimity in determination of
intent to kill versus intent to cause serious bodily injury).
The trial court denied the defense request, concluding that the
concept of one unified crime of murder was not the law in New
Jersey. The court thus severed the jury's consideration of
purposeful-or-knowing murder from its consideration of felony
murder.
Defendant contends that, given the structure of the murder
statute, there is one crime of murder in New Jersey, as opposed
to distinct crimes of capital and noncapital murder. He argues
that under New Jersey's murder statute, N.J.S.A. 2C:11-3, three
mental states give rise to murder: (1) purpose (to kill or to
cause serious bodily injury), N.J.S.A. 2C:11-3a(1); (2) knowledge
(that death will occur or that serious bodily injury will occur),
N.J.S.A. 2C:11-3a(2); and (3) the mental state necessary for a
predicate felony to felony murder, N.J.S.A. 2C:11-3a(3). He
argues that that structure indicates that, in New Jersey, there
is one crime of murder with various theories to support a murder
conviction; some of those theories -- purpose to cause death or
knowledge that death will occur -- trigger death-eligibility,
N.J.S.A. 2C:11-3(c), while the other theories -- purpose to cause
serious bodily injury (prior to the 1992 amendment to Article I,
paragraph 12 of the New Jersey Constitution), knowledge that
serious bodily injury will occur (prior to the 1992 amendment),
and felony murder -- do not. Defendant asserts that, despite the
fact that different theories may or may not trigger death-eligibility, the fact remains that there is one crime of murder
and no such thing as distinct crimes of capital and noncapital
murder.
The State responds by arguing that felony murder is entirely
distinct from other types of murder because it has different
elements than purposeful-or-knowing murder and is a lesser crime,
as evidenced by its non-death-eligible status. The crux of the
State's argument is that felony murder is not the moral
equivalent of purposeful-or-knowing murder (be it intent-to-kill
or intent-to-inflict-serious-bodily-injury murder) because felony
murder, unlike the others, requires only an intent to commit an
underlying felony as opposed to an intent to kill or an intent to
cause serious bodily injury that results in death. The State
also points to several of this Court's decisions that have
implicitly recognized the distinct nature of felony murder by
holding that trial courts may charge sequentially on the various
theories, State v. Perry,
124 N.J. 128, 164-65 (1991) (approving
of sequential charge for non-felony-murder offenses), and that a
purposeful-or-knowing-murder conviction may be vacated without
vacating a felony-murder conviction. State v. Pennington,
119 N.J. 547, 556 (1990) (reversing purposeful-or-knowing-murder
conviction without setting aside felony-murder conviction).
A determination of how felony murder fits into the capital
murder context must begin with an examination of the structure of
the murder statute, N.J.S.A. 2C:11-3, and the Death Penalty Act,
N.J.S.A. 2C:11-3c to -3i. The murder statute was part of the New
Jersey Code of Criminal Justice ("the Code"), L. 1978, c. 95,
that became effective September 1, 1979. N.J.S.A. 2C:98-4. The
Code defines murder as follows:
a. Except as provided in N.J.S.2C:11-4
criminal homicide constitutes murder when:
(1) The actor purposely causes death or
serious bodily injury resulting in death; or
(2) The actor knowingly causes death or
serious bodily injury resulting in death; or
(3) It is committed when the actor [commits
felony murder].
[N.J.S.A. 2C:11-3a.]
Thus, the Code defines three forms of murder: purposeful murder
(with intent to kill or to inflict serious bodily injury),
knowing murder (with knowledge/awareness that death or serious
bodily injury will occur), and felony murder. N.J.S.A. 2C:11-3a.
Although the death penalty had been proposed at the time the
Code was enacted, the Death Penalty Act did not become law until
August 6, 1982. L. 1982, c. 111, §§ 1, 3. To implement the
death penalty, the Legislature changed the penalty section of the
murder statute, N.J.S.A. 2C:11-3b, to add "except as provided in
subsection c. of this section." L. 1982, c. 111, § 1.
Subsection "c" limits capital murders to purposeful-or-knowing
murderers "who commit[] the homicidal act by [their] own conduct;
or who as an accomplice procure[] the commission of the offense
by payment or promise of payment of anything of pecuniary value;
or who, as . . . leader[s] of . . . narcotics trafficking
network[s]" as defined in N.J.S.A. 2C:35-3, command the killing.
N.J.S.A. 2C:11-3c.
Unlike some jurisdictions, the New Jersey Legislature has
not made felony murder death-eligible. Some jurisdictions that
have made felony murder death-eligible have adopted the unified-murder concept. E.g., State v. Encinas,
647 P.2d 624, 627-28
(Ariz. 1982); People v. Milan,
507 P.2d 956, 961-62 (Cal. 1973);
Brown v. State,
473 So.2d 1260, 1265 (Fla. 1985); People v.
Travis,
525 N.E.2d 1137, 1147-48 (Ill. App. Ct. 1988); State v.
Nissen,
560 N.W.2d 157, 165 (Neb. 1997); Crawford v. State,
840 P.2d 627, 640 (Okla. Crim. App. 1992).See footnote 1
Although under our prior death-penalty statute, N.J.S.A.
2A:113-4 (repealed 1978), felony murder made a defendant death-eligible, N.J.S.A. 2A:113-2, -4 (repealed 1978), the Legislature
elected not to continue that practice under our current Death
Penalty Act. Therefore, New Jersey, unlike jurisdictions that
have a unified-murder concept based on felony murder being a
death-eligible offense, has intentionally rejected the predicate
for a unified-murder charge. The fact that the Legislature has
established the identical sentence for noncapital purposeful-or-knowing murder as it has for felony murder should not be
determinative of whether to require a unified-murder charge. It
is the culpable mental state plus the aggravating circumstances
that determine death-eligibility and that also distinguish
capital murder from felony murder.
The mental states required to convict for purposeful murder
and knowing murder are "equivalent expressions of moral
culpability." State v. Bey,
129 N.J. 557, 582 (1992) (Bey III).
Unlike purposeful-or-knowing murder, felony murder is an absolute
liability crime because a defendant need not have contemplated or
intended the victim's death. State v. Martin,
119 N.J. 2, 20
(1990); State v. McClain,
263 N.J. Super. 488, 491 (App. Div.),
certif. denied,
134 N.J. 477 (1993); State v. Darby,
200 N.J.
Super. 327, 331 (App. Div. 1984), certif. denied,
101 N.J. 226
(1985). The only mental state required for felony murder is the
specific mental culpability required to commit one of the
particular underlying felonies specified in N.J.S.A. 2C:11-3(a)(3). Because the mens rea for purposeful-or-knowing murder
is different from that required for felony murder, we do not
believe that the Legislature intended to create a unified crime
of murder. This Court has acknowledged in a capital case that
the "elements are different" in felony murder than they are in
purposeful-or-knowing murder. State v. Purnell,
126 N.J. 518,
531 (1992).
We conclude that felony murder is not the moral equivalent
of purposeful-or-knowing murder. We believe the Legislature
intended that death-eligibility be viewed as the touchstone of
moral equivalence. Defendant's reliance on State v. Gerald,
113 N.J. 40 (1988); Purnell, supra,
126 N.J. 518; Brown, supra,
138 N.J. 481; and Mejia, supra,
141 N.J. 475, to support his claim of
entitlement to a unified-murder charge is misplaced.
Gerald, supra, held that the imposition of the death penalty
for serious-bodily-injury murder violated the New Jersey
Constitution's ban on cruel and unusual punishment. 113 N.J. at
89. The Constitution was amended, effective December 3, 1992,
see Acts of the First Annual Session of the Two Hundred and Fifth
Legislature of the State of New Jersey and Thirty-Fifth Under the
New Constitution: Chapters 76-215, at 1429 (1992) ("Acts"), to
overturn Gerald. See Assembly Judiciary, Law and Public Safety
Committee, Statement to Assembly Bill No. 2113--L. 1993, c. 111
("Statement"). To ensure that the amendment would be given full
effect, the Legislature amended the Death Penalty Act to make
murderers who intend to commit serious bodily injuries death
eligible. Ibid.; L. 1993, c. 111 (approved May 5, 1993).
Purnell, supra, requires that in a capital- murder case,
"all forms of homicide rationally supported by the evidence . . .
should be placed before the jury." 126 N.J. at 530. Purnell
does not contemplate a unified-murder charge. Rather, it
requires that felony murder be submitted to the jury in capital
cases if rationally supported by the evidence even if it is not
technically a lesser-included offense of capital murder. Id. at
530-34. In Purnell, the rational basis was the State's reliance
on death occurring in the course of a felony as an aggravating
factor even though felony murder was not charged in the
indictment. Id. at 523-24.
Brown, supra, involved a death-eligible murder with a
factual scenario that required the jury to decide whether the
defendant acted as a non-death-eligible accomplice or as a death-eligible principal. 138 N.J. at 509. Similarly, a nonunanimity
possibility was submitted to the jury in Mejia, supra, a 1991
capital case in which the jury had to decide whether the
defendant was death-eligible based on an intent to kill, or non-death-eligible based on an intent to cause serious bodily
injuries. 141 N.J. at 479, 482-83. The constitutional amendment
that overturned Gerald was not yet in effect when the Mejia
murder occurred.
Because the Legislature has decreed that felony murder is
not a death-eligible offense and our capital jurisprudence,
stressing the importance of providing a jury with every
opportunity to spare a defendant's life, has been limited to
purposeful-or-knowing-murder cases in which the jury had to
resolve a factual dispute determinative of whether that murder
was death-eligible, we decline to extend that jurisprudence to
noncapital murder. Those cases have been restricted to capital
murder as defined in N.J.S.A. 2C:11-3c for which notice of
aggravating factors has been given. N.J.S.A. 2C:11-3c(2)(e).
Moreover, to permit a jury to return a nonunanimous verdict
on a charge of felony murder contradicts "[o]ne of the nearly-universal hallmarks of trial by jury [which] is the requirement
of a unanimous verdict in criminal cases. The roots of the
search for jury unanimity are traced in 3 William Blackstone,
Commentaries *375-76." Brown, supra, 138 N.J. at 594 (O'Hern,
J., dissenting in part). The public's right "to see that a
criminal prosecution proceeds to a verdict either of acquittal or
conviction is predicated on `the public's interest in fair trials
designed to end in just judgments.'" Id. at 597 (quoting Wade v.
Hunter,
336 U.S. 684, 689,
69 S. Ct. 834, 837,
93 L. Ed. 974, 978
(1949)). The Legislature never contemplated such a draconian
change in the handling of murder cases.
Aside from the absence of any legislative intent to create a
unified crime of murder, the intermingling of death-eligible
murder with non-death-eligible murder would create utter chaos
when instructing a jury. This Court consistently has emphasized
the need for clear and correct jury instructions. Martini I,
supra, 131 N.J. at 271; State v. Collier,
90 N.J. 117, 122
(1982). Jury instructions are supposed to serve as "a road map
to guide the jury." Martin, supra, 119 N.J. at 15. Rather than
guiding a jury, a unified-murder charge in a case in which felony
murder is not a death-eligible offense would lead a jury "down
the wrong path . . . to a verdict not permitted under our law."
State v. Grey,
147 N.J. 4, 14, 17 (1996). It would cause
extraordinary confusion, ultimately requiring reversal of any
murder or felony-murder conviction. Given the absence of any
legislative intent to create a unified crime of murder and the
confusion such a charge would create, we conclude that the trial
court properly rejected the request to give a unified-murder
charge.
Sequential Presentation of Purposeful-or-Knowing-
Murder Charge and Felony-Murder Charge
Defendant contends that the trial court's refusal to
instruct the jury to consider purposeful-or-knowing murder and
felony murder simultaneously, contravened this Court's
jurisprudence on sequential presentation of charges. Defendant
maintains that in a capital case, sequential presentation of
felony murder as an alternative to,