(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 April 30, 1996 -- Decided August 8, 1996
GARIBALDI, J., writing for the Court.
The victim, Gary K. Marsh, was working the midnight shift at an Exxon gas station on May 9, 1992.
At 6:10 a.m., the employee who was scheduled to relieve Mr. Marsh found him lying in the gas station office
with a bullet wound in the head. A shell casing was found near his body and the bullet was retrieved from
the back wall of the office. Mr. Marsh died without regaining consciousness.
The gas station office was small, approximately nine feet by thirteen feet, without taking into account
the furniture. There was no evidence of a struggle. The office was not disturbed, and Mr. Marsh's body
showed no signs of any other wounds. Missing were Mr. Marsh's wallet and approximately $90 from the
evening's receipts, including a fifty-dollar bill used by a customer to purchase gas from Mr. Marsh at around
4:00 a.m.
Defendant was arrested in Pennsylvania four days later while attempting to make a purchase with
one of Mr. Marsh's credit cards. He had other credit cards belonging to Mr. Marsh in his possession, as
well as Mr. Marsh's driver's license and social security card. He also had a fifty-dollar bill.
Pursuant to a search warrant, the police searched defendant's car and home. In the car, the police
found a .380 caliber pistol that ballistics tests revealed to be the murder weapon. The receipt for the gun,
which was purchased in Pennsylvania a short time earlier, was found on defendant's person. Police found
over 500 rounds of ammunition for the gun in defendant's home.
The State served notice of its intent to prove three aggravating factors: prior murder conviction;
murder to escape apprehension; and murder committed during the course of a robbery. Defendant had
previously been convicted of the March 28, 1992 murder of sixty-nine year old Sophia Fetter in Atlantic
County. Defendant was convicted of this murder on September 22, 1993.
A jury convicted defendant of the murder of Mr. Marsh. A separately-empaneled jury returned a
death-penalty verdict.
HELD: Defendant's murder conviction and death sentence are affirmed.
1. It was not plain error for the trial court to fail to death-qualify the guilt-phase jury or to conduct
individualized voir dire of that jury. Defendant was not deprived of his ability to mount a defense as a result
of trial court limitations on his attorney's cross-examination and summation. (pp. 30-46)
2. The trial court's failure to include a Mejia charge that informed the guilt-phase jury of the option of
returning a non-unanimous verdict on the defendant's mental state (intent to kill or inflict serious bodily
injury) was harmless. There was no rational basis for a juror to conclude that defendant did not intend to
kill his victim, since defendant, who was experienced with guns, fired a bullet into the side of Mr. Marsh's
head from close range without any signs of struggle. (pp. 46-55)
3. There was no reversible error in the penalty-phase as a result of the testimony by defendant's trial attorney in the Atlantic County murder that defendant did not have a mental health defense to that murder;
testimony by the State's examining psychiatrist about defendant's statements during a psychiatric examination;
and the trial court's instructions to disregard portions of defendant's allocution statement. (pp. 57-67)
4. The brief outburst by a courtroom spectator after defendant's allocution statement did not operate to
unduly prejudice the jury against defendant. Since defendant's counsel objected to any instruction by the trial
court that would highlight the outburst, defendant cannot now complain that the trial court's inquiry to the
jury was not sufficiently probing. (pp. 67-72)
5. It was not reversible error for the trial court to refuse to allow the jury to consider under the catch-all
mitigating factor the hardship on defendant's family or that defendant would likely die in prison. The trial
court's instructions in respect of the mitigating factor of extreme mental or emotional disturbance and in
respect of jury unanimity on mitigating factors were sufficient when the court's instructions are examined in
their entirety. (pp. 72-85)
6. The circumstantial evidence presented by the State indicates that defendant did not have to kill Mr.
Marsh to effectuate the robbery. This evidence was sufficient to submit to the jury the aggravating factor of
murder to avoid apprehension, and the trial court's instructions on that factor were adequate. (pp. 85-91)
7. A newspaper article that quoted a juror as stating that the jury never lost sight of the fact that the victim
also had a family did not demonstrate the requisite good cause for interviewing the jurors. (pp. 92-94)
8. Although some of the comments made by the prosecutor were improper, they do not require reversal,
especially given the curative instructions of the trial court. Further, the trial court's limiting instruction
concerning evidence of defendant's arrest for using Mr. Marsh's credit cards was sufficient. (pp. 95-114)
9. Given the overwhelming evidence of defendant's guilt, the cumulative effect of any trial errors was not
clearly capable of affecting either defendant's conviction or his sentence. (pp. 114-115)
Defendant's murder conviction and his death sentence are AFFIRMED.
JUSTICE HANDLER, dissenting, is of the view that this capital-murder prosecution was rife with errors that
strike at the core of our system of capital punishment. These errors include the unbounded and
undisciplined use of the aggravating factor of murder to avoid apprehension; failure to death-qualify the
guilt-phase jury; and undue restrictions on defendant's ability to proffer relevant mitigation evidence.
JUSTICE O'HERN, dissenting, in which JUSTICE HANDLER joins, is of the view that the trial court
committed reversible error when it failed to instruct the jury that it need not be unanimous as to whether
defendant intended to kill or to inflict serious bodily injury. Although the evidence strongly sustains the
inference that defendant intended to kill, it is impossible to conclude that a juror could not have found
otherwise given the proper instruction.
JUSTICES POLLOCK, STEIN and COLEMAN join in JUSTICE GARIBALDI'S opinion.
JUSTICE HANDLER has filed a separate dissenting opinion. JUSTICE O'HERN has filed a separate
dissenting opinion in which JUSTICE HANDLER joins.
SUPREME COURT OF NEW JERSEY
A-
39 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD LOFTIN,
Defendant-Appellant.
Argued April 30, 1996 -- Decided August 8, 1996
On appeal from the Superior Court, Law
Division, Mercer County.
Daniel V. Gautieri and Susan Herman,
Assistant Deputies Public Defender, argued
the cause for appellant (Susan L. Reisner,
Public Defender, attorney).
Paul H. Heinzel, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
A jury convicted defendant, Donald Loftin, of the murder of
Gary K. Marsh. At the penalty-phase hearing, a separately
empanelled jury returned a death-penalty verdict, and the trial
court sentenced defendant to death. Defendant appeals directly
to this Court as of right. See Rule 2:2-l(a)(3). We affirm
defendant's conviction for murder and his sentence of death.
A. Guilt Phase
1. The crime
On May 5, 1992, Gary Marsh was working the midnight to six-thirty a.m. shift at an Exxon service station located on Alternate Route One in Lawrenceville, New Jersey. Marsh had a key to the office that was located behind the gas pumps, away from the highway. At approximately 4:l0 a.m., E. Thomas Citron stopped for gas at the station. He paid for his gas with a fifty-dollar bill.
David Paddock was scheduled to relieve Marsh at 6:30 a.m. Arriving early, at approximately 6:l0 a.m., he waited in his parked truck. Paddock observed a customer pull up to the pumps, wait without service, and ultimately leave. Paddock then left his truck to find Marsh.
Approaching the station office, Paddock saw three large planters, a cola machine, a pile of pink slip receipts, and a half-eaten orange. The orange was found on the ground just outside the passenger door of Marsh's car. Paddock further observed the office keys in the door. The door was unlocked, but pulled closed. Marsh lay inside the office, his head in a puddle of blood. Paddock closed down the station and called the
Lawrenceville Police. The murder had occurred between Citron's
visit at 4:l0 a.m. and Paddock finding Marsh at 6:l0 a.m.
Marsh lay on his back with his head located three feet from
the front doorway that was located in the northeast corner of the
office. Officer Maple, one of the first police officers on the
scene, observed that a large amount of blood was on the floor
next to Marsh's head. His feet were pointed toward the southwest
(back) corner of the office. Marsh's arms were at his side and
his eyes were shut. His right eye was black and blue. Although
still alive, Marsh was unconscious and struggling for breath.
Marsh's clothing did not appear to have been disturbed. His
pockets were not turned out and he still was in possession of
some personal items, including three dollar bills, some change,
and lottery tickets. A spent brass shell casing was found on the
office floor, four to six inches from Marsh's left ear. Further,
the cash drawer sat empty on one of the counters and there was
also some loose change on the floor. Closer examination of the
station office revealed several crucial pieces of evidence.
While no fingerprints of defendant were found anywhere in or
around the station, the bullet used to kill Marsh served a
similar purpose. The bullet that killed Marsh was found behind a
pegboard that hung on the back wall of the office. A few of
Marsh's hairs were removed from the area of the bullet hole.
Later ballistics testing traced that bullet to a .380 caliber
Bryco Model 48 pistol, purchased by defendant from D & S Gun
Supplies of Levittown, Pennsylvania, and subsequently discovered
by the police in defendant's car under the dashboard.
Additionally, Mr. Peterson, the station owner, determined
that approximately ninety dollars had been taken from that
evening's revenue. Moreover, although Mr. Citron reported
purchasing gas from Marsh with a fifty-dollar bill around 4:00
a.m., there was no fifty-dollar bill in the proceeds or on
Marsh's person. Defendant was in possession of a fifty-dollar
bill at the time of his arrest. However, the two fingerprints
detected on that bill did not belong to Marsh, Loftin, or Citron.
Further examination of the office revealed the absence of a
struggle, a significant fact because the office is particularly
small and narrow. Without taking account of the furniture in the
office, the dimensions of the room are nine feet seven inches by
thirteen feet, five inches. The office furniture did, however,
consume considerable floor space. As Officer Maple testified,
"Nothing appeared to be touched or disturbed or moved or appeared
out of place. I mean, it was . . . the office was, to me
appeared basically untouched. There was no signs of any struggle
or anybody going through or gone through anything there."
Marsh never regained consciousness and died approximately
nine and one half hours after he was discovered bleeding in the
Exxon station. The next day, Mercer County's Chief Medical
Examiner, Dr. Raafat Ahmad, conducted an autopsy and concluded
that the cause of death was a gunshot wound to the head and that
the manner of death was homicide. The entry wound was located in
the left temporal region, with the bullet grazing the top of the
left ear on entry. The bullet penetrated Marsh's skull, passed
directly through both hemispheres of his brain, and exited on the
opposite side at the right temporoparietal area, slightly above
the right temple. Dr. Ahmad opined that the bullet's slight
upward path through the skull was possibly caused by the tilting
of the head on impact. The bullet caused fracturing lines to run
from the top to the base of the skull on both sides. The doctor
testified that Marsh's right eye was black and blue as a result
of the bullet causing fractures inside the skull and the blood
seeping into the eye area.
Dr. Ahmad observed that Marsh had no external injuries, cuts
or bruises. There were no "defense wounds" on the hands or arms
that would have been indicative of a struggle.
2. The arrest
Because the police had been unable to find Marsh's wallet,
Detective Burns notified each of Marsh's credit card companies
that a murder and robbery had taken place. Burns requested that
the Lawrenceville Police should be contacted if anyone attempted
to use the cards.
Defendant was arrested four days after the murder, on May 9,
l992, when he attempted to purchase a family computer from a
Sears store in Pennsylvania with a Sears charge card belonging to
Marsh. After selecting a computer system, defendant agreed to
open a "Sears Plus" account in order to help finance the
purchase. Defendant handed the Sears sales representative, Mr.
Cassidy, the driver's license and Sears charge card belonging to
Marsh.
Mr. Cassidy called the central credit office and spoke with
John Metzler. Cassidy provided some general information to
Metzler and then Metzler spoke directly to defendant, who
identified himself as Gary Marsh and provided Metzler with
relevant factual information, including Gary Marsh's name, social
security card number, age, address, and the fact that he was
employed by Exxon.
Metzler discovered the message from the Lawrenceville Police
as soon as he accessed Marsh's account. Metzler thereupon
instructed Cassidy to stall defendant because this was a
potential case of credit fraud. Mr. Metzler then called the
Lawrenceville Police and thereafter the Middletown Police, as
well as store security. Store security videotaped the events
leading up to and including the arrest of defendant for receiving
stolen property, fraudulent use of a credit card, and theft by
deception. The videotape of the arrest was played to the jury at
the guilt and penalty phases of the trial.
A search of defendant's person was conducted at Sears,
whereupon the police recovered his bi-fold wallet from his left
breast pocket. The wallet did not belong to Marsh, but when
Officer Burnett searched the plastic insert of the wallet at the
Middletown Township police station, he found four of Marsh's
cards: two credit cards, a social security card, and a health
insurance card.
Also found in the wallet were both Mr. Loftin's and Mr.
Marsh's driver's licenses; some identification and health plan
cards in Mr. Loftin's name; various cards belonging to Mr. Marsh
including credit cards, a bank card, and a vehicle registration
card; a gun permit in Mr. Loftin's name from the State of
Washington; a receipt [from D & S Gun Supplies of Levittown,
Pennsylvania] for the purchase of a [.380 caliber Bryco Model 48
pistol and the receipt indicating that Loftin paid in full for
the gun,] and a fifty-dollar bill. The items that belonged to
Marsh and defendant were mixed in together, and the date and eye
color on Marsh's driver's license had been altered so as to
conform to defendant's appearance. None of the items in the
wallet indicated that Marsh had worked at Exxon.
At the time of the offense, defendant, who was twenty-six
years old, was residing with his wife Dorothy and two young
children, five-year old Danielle and one-year old Jay, in
Bristol, Pennsylvania. The police obtained and executed a search
warrant of defendant's home and car. At his home they found a
box in a closet that contained 500 rounds for a .380 caliber
weapon, and a smaller box that contained 26 (of its original
fifty) bullets. Various items for making one's own ammunition
were also found and confiscated, including smokeless powder,
reloading dies, a reloading scale, a powder measurer, and a
turret press. The ammunition that was confiscated from Loftin's
home was compatible with the murder weapon. An application form
for a gun club was seized from the living room closet. The
police also confiscated several articles of clothing from
defendant's home. Neither blood nor gunshot residue was detected
on any of Loftin's possessions.
In defendant's car, the police found the murder weapon, a
.380 caliber gun equipped with a safety that required ten and one
half pounds of weight in order to fire the gun. The gun found in
defendant's car bore a serial number matching the serial number
on a receipt for a recent gun purchase found in defendant's
wallet. State Trooper Stephen Deady, the State's ballistics and
firearms expert, testified that the spent shell retrieved along-side Marsh's head, and the bullet retrieved from the Exxon office
wall behind the pegboard, had both been fired and discharged from
defendant's gun. The weapon was hidden under the dashboard on
the driver's side. Also in defendant's car were two magazines
for a semi-automatic weapon. One magazine was empty and one was
partially loaded. There was also a "side-kick" shoulder holster
under the driver's seat.
The police additionally found a plastic mask in defendant's
car. However, the mask was not confiscated as evidence, and no
member of the team that searched defendant's car mentioned
finding the mask. Rather, it was only during the penalty-phase
cross-examination of Detective Burns that for the first time the
State acknowledged the mask's existence.
On September ll, l992, defendant was indicted on four
counts: purposefully or knowingly murdering Gary K. Marsh by his
own conduct, contrary to N.J.S.A. 2C:ll-3a(l) and (2) (count I);
felony murder, contrary to N.J.S.A. 2C:ll-3a(3) (count II);
first-degree robbery, contrary to N.J.S.A. 2C:l5-l (count III);
and second-degree possession of a handgun with a purpose to use
it unlawfully, contrary to N.J.S.A. 2C:39-4a (count IV).
Defendant pleaded not guilty.
Subsequently, the State served a notice of its intent to
prove three aggravating factors: N.J.S.A. 2C:ll-3c(4)(a)
(c(4)(a)) (conviction for another murder); N.J.S.A. 2C:ll-3c(4)(f) (c(4)(f)) (murder to escape apprehension for another
offense); and N.J.S.A. 2C:ll-3c(4)(g) (c(4)(g) (murder committed
during the course of a robbery). The c(4)(a) prior-murder
aggravating factor is based on an Atlantic County conviction for
the March 28, l992, knowing or purposeful murder of sixty-nine
year old Sophia Fetter. Defendant was convicted of the Fetter
murder on September 22, l993. His conviction was affirmed by the
Appellate Division. State v. Loftin,
287 N.J. Super. 76 (App.
Div. l996). We denied defendant's petition for certification
concerning the Atlantic County murder. l44 N.J. l75 (l996).
The guilt and penalty phases of the trial were tried before
different juries with the same judge presiding over both phases.
Defendant filed several pretrial motions including a motion to
strike aggravating factor c(4)(f). Those motions were denied.
The State presented witnesses and evidence, including a
videotape of defendant's arrest at Sears, to establish the above-mentioned facts. Defendant did not testify and called no
witnesses at the guilt phase. Prior to summations, the State
moved to preclude the defense from arguing that the killing was
the result of "a robbery gone bad." The defense argued that it
should be allowed to make arguments from the absence of evidence
about what had occurred at the gas station and from Dr. Ahmad's
testimony that the evidence did not preclude an accidental
shooting. The trial court barred the defense from presenting the
"robbery gone bad" argument, stating that there was not
sufficient evidence to support it.
On July 8, l994, defendant was found guilty on all counts.
Specifically, the jury concluded that defendant's intent was to
kill the victim, Gary Marsh, as opposed to causing him serious
bodily injury. The jury also found that defendant had murdered
Gary Marsh by his own conduct.
B. Penalty Phase
Prior to the penalty phase trial, defendant filed a Notice
of Mitigating Factors which included the following four statutory
mitigating factors:
l. Defendant was under the influence
of extreme mental or emotional
disturbance insufficient to
constitute a defense to
prosecution, N.J.S.A. 2C:ll-3c(5)(a);
2. Defendant's age, 26 at the time of
the murder, N.J.S.A. 2C:ll-3c(5)(c);
3. Defendant's capacity to appreciate
the wrongfulness of his conduct or
to conform his conduct to the
requirements of the law was
significantly impaired as the
result of mental disease or defect,
but not to a degree sufficient to
constitute a defense to
prosecution, N.J.S.A. 2C:ll-3c(5)(d);
4. Defendant had no significant
history of prior criminal activity,
N.J.S.A. 2C:ll-3c(5)(f).
Defendant also proposed twenty-nine specific factors pursuant to
the catch-all statutory mitigating factor, N.J.S.A. 2C:ll-3c(5)(h):
5. Defendant was traumatized by the
loss of his father at an early age;
6. Defendant was traumatized by a fire
he accidentally set that resulted
in the loss of the family home;
7. Defendant was emotionally
impoverished when growing up;
8. Defendant was deprived of an
environment where he could
verbalize his sense of loss;
9. Defendant was raised in poverty;
l0. Defendant was deprived of a
positive male role model while
growing up;
11. Defendant was a considerate and
loving son;
12. Defendant provided his siblings
with a positive sense of direction;
13. Defendant developed and evidenced
strong spiritual and religious
standards;
14. Defendant assumed the
responsibility of the man in the
family before he was emotionally
and financially prepared to do so;
15. Defendant was forced to become
estranged from his family after he
got married, choosing to align
himself with his wife at the
expense of his family of origin;
16. Defendant was traumatized by the
loss of his first son, but did not
have the support of his mother to
help him deal with his pain;
17. Defendant maintained employment and
provided for his wife and children;
18. Defendant served in the United
States Navy;
19. Defendant attended Bucks County
Community College;
20. Defendant shared a positive
relationship with his wife and
children;
21. Defendant had been a model
prisoner;
22. Defendant had led a crime-free and
productive existence for the first
26 years of his life;
23. Defendant had been generous to those
less fortunate than himself;
24. Defendant was under the influence
of mental and emotional pressure at
the time the crime was committed;
25. Defendant was suffering from
impaired mental capacity at the
time the crime was committed;
26. Defendant was a loving father;
27. Defendant's execution would be a
hardship to his family;
28. Defendant's execution would be a
hardship to his 5 year old
daughter, Danielle;
29. Defendant's execution would be a
hardship to his 3 year old son,
Jay;
30. Defendant had the love and support
of his family;
31. Defendant had sincere and heartfelt
remorse;
32. Defendant offered the State to
plead guilty in exchange for a life
sentence;
33. Any other mitigating evidence
presented at the trial.
Numerous motions were made before the penalty phase of the trial began on November l4, l994. On September l3, l994, the trial court granted defendant's motion to expand the allotted peremptory challenges, providing him with five additional challenges and the State with three. The trial court denied defendant's request to establish the "likelihood that defendant would die in prison" as an additional mitigating factor under the catch-all factor. The court granted the State's motion to strike mitigating factors twenty-seven through thirty as irrelevant.
However, the court later reversed its ruling on mitigating factor
thirty.
A separate penalty-phase determined whether defendant
deserved to die. The aggravating factors offered by the State
were: (l) evidence of a prior murder, (2) murder during the
course of a robbery, and (3) murder to avoid apprehension.
At the penalty phase, the State called many of the same
witnesses that appeared at the guilt phase including Gunnar Marsh
(Gary's father), Dr. Ahmad, David Paddock, Edward Peterson,
Officer Mosner, Detective Burns, Officer Burnett, and Trooper
Deady, all of whom testified in a manner consistent with the
evidence adduced at the guilt phase. Gunner Marsh added,
however, that Gary did not know defendant, nor did he own or
carry a handgun. Detective Burns indicated that a mask had been
found in defendant's car. Dr. Charles Martinson, the State's
expert, testified that defendant indicated that he had been
wearing the mask during the robbery. As at the guilt phase, the
Sears surveillance videotape was shown to the jury.
With respect to the prior murder aggravating factor, the
parties stipulated that defendant had been convicted of the March
28, l992 murder of Sophia Fetter, by a single gunshot wound to
the head. Ms. Fetter was sixty-nine years old and a total
stranger to defendant. While the court instructed the jury that
defendant received thirty years without parole on the Atlantic
County sentence, the defense was not permitted to submit to the
jury, in mitigation of punishment, that a second life sentence
imposed as a result of the Marsh murder would result in
defendant's likely dying in prison.
In mitigation, defendant called Charles Jurman, his attorney
at the Fetter murder trial. Jurman testified about defendant's
willingness to accept the Mercer County Prosecutor's Office
tentative plea offer of consecutive life sentences in exchange
for defendant pleading guilty to both Fetter and Marsh murders.
Jurman, however, acknowledged that the State had never formalized
that offer. Jurman also testified that defendant had no prior
criminal record, aside from the Atlantic County murder, the
Mercer County murder, and the related credit-card offenses in
Pennsylvania. He also stated that defendant was not a drug user,
alcoholic, or compulsive gambler. Over the defense's objection,
Jurman testified that his investigation for and experience in
representing defendant failed to reveal that defendant suffered
from any mental disease or defect that could be raised as a
defense to the prosecution of the Atlantic County murder.
Next, Jennifer Blumberg, a penal counselor at the Mercer
County Detention Center, testified that no "major" disciplinary
actions had been brought against defendant and that he was a
"model inmate."
Defendant did not testify, but told the story of his life
primarily through Carmeta Albarus, an expert in conducting
psychosocial histories, Dr. Dougherty, a defense psychologist,
and a few close family members.
Albarus constructed a social history of defendant by
engaging in repeated interviews with him, his family members, and
with other significant people in his life. Albarus also
personally reviewed institutional records on defendant such as
his school, Navy, and employment records. The goal of her
investigation was to explore patterns of behavior in the family
system in order to help her draw conclusions about defendant. On
cross-examination, the State brought out that Albarus was not a
psychiatrist, psychologist, social worker, or attorney. She also
acknowledged that all of her prior appearances in capital cases
had been on behalf of defendants.
Albarus testified that defendant was one of seven children
born to Fred and Ellen Loftin. Fred Loftin was the more
nurturing parent, but a poor provider. When Donald was five,
Fred Loftin suddenly disappeared. Mrs. Loftin was left pregnant,
with seven children, and a great amount of debt.
Mrs. Loftin worked constantly and extremely hard to keep her
children dressed, fed, and educated. Albarus testified that the
strain of being the sole provider meant Mrs. Loftin was rarely
home, and that she had little ability to nurture the children at
home. Albarus believed that Mrs. Loftin was never able to relate
to her children in a warm or maternal manner because she came
from a dysfunctional and abusive upbringing and dealt with
extraordinary stresses.
In the year following Fred Loftin's abandonment of his
family, conditions deteriorated. Defendant, at six years old,
set his mattress on fire and as a result the family home burned
to the ground. The Loftins, already on public assistance, were
moved to a one bedroom hotel room. Though only planning to stay
for a brief period, the Loftins actually remained for an extended
period. Defendant never received counseling to explore why he
acted out in this manner or to help him with the guilt and trauma
of causing such a significant event.
Albarus related that Fred Loftin did attempt to resurface in
the children's lives on two separate occasions. In the first
instance, when defendant was approximately eleven or twelve, Fred
Loftin called his family and invited his children to visit him in
Denver, Colorado. Defendant was the only child that refused to
meet his father. In the second instance, Fred Loftin came home
to visit. Although the transcript is unclear, it appears that
defendant was in his early twenties when his father returned. At
that time, defendant did confront his father, demanding an answer
to why he had left the family. Defendant received no
explanation, and never fully resolved the issue. Although
Albarus testified on direct that defendant's father's departure
"traumatized" defendant, she acknowledged that a report prepared
by Dr. Ryno Jackson, a defense-retained psychiatrist, concluded
that "Donald does not recall having any feeling regarding his
father's leaving."
According to Albarus, defendant was always struggling to "do
the right thing" and be the "perfect son." Even when younger, he
seemed to want to take responsibility for his mother. Although
defendant did drop out of school during a brief stint of
marijuana use in his early teens, he soon found a flyer
advertising the road to salvation through Jesus. Defendant chose
to pursue that avenue. Returning to school, defendant completed
his G.E.D. The testimony adduced at trial indicates that
defendant actually expended significant time and effort trying to
help his siblings get on or stay on the right path.
When defendant was twenty-years old, he married Dorothy
McMillan. According to Albarus, as a result of Ellen Loftin's
strong disapproval, defendant felt compelled to abandon his first
family in order to remain loyal to his new family. The
separation was most painful when Donald and Dorothy's first son
was stillborn and Mrs. Loftin did not attend the funeral.
Defendant and Dorothy had a conflict-filled relationship,
although the extent to which the conflicts manifested themselves
in various forms of domestic violence was disputed at trial. The
conflicts seemed to have several roots. First, defendant and
Dorothy each had their own, rather uncompromising, visions of the
proper role for a wife. Defendant's vision was far more
conservative. Conflicts in the marriage also seem to have been
rooted in, or exacerbated by, defendant's inability to achieve
the success he desired. Defense experts suggested that Donald
wanted to be the provider that his father was not. Defendant
went through a number of careers, never attaining the goals to
which he aspired. Defendant moved himself and his family to
Denver. He eventually joined the Navy and was fairly successful.
Within a year, he was assigned to ship duty. Unable to stand the
idea of separation and survival in a new place with their young
daughter, Dorothy Loftin attempted suicide on the day that
defendant was scheduled to sail. He then obtained a general
discharge to attend to his wife.
After his discharge from the Navy, defendant sent Dorothy
home to her family in Pennsylvania. Eventually, however,
defendant did return home to live with Dorothy's family and work
with his father-in-law. Defendant then decided to return to
auto-mechanic school. While successfully completing his training
at Lincoln Institute, defendant never obtained a job as a
mechanic. Rather, he was able only to find work washing cars.
Ultimately he and his wife each decided to return to school at
Bucks County Community College. Dorothy Loftin did very well at
college, but defendant was not performing on a passing level. He
refused to seek counseling for his grades or to handle the
depression and frustration resulting from his performance.
Although the conflicts can be identified with some
certainty, how these conflicts manifested themselves within the
relationship is less clear. Probation Officer Daria Christie,
the Atlantic County case supervisor who prepared the presentence
report following defendant's conviction for the Fetter murder,
testified that in a phone interview Dorothy Loftin indicated that
she was unhappy in the marriage, that defendant was "very
spiteful", and that defendant "frequently abused" her and the
children. Rather than taking responsibility for his actions,
Dorothy Loftin reportedly said that defendant shifted the blame.
Christie also testified that Dorothy Loftin refrained from
calling the police because she was fearful of defendant. Dorothy
Loftin also allegedly reported that defendant was mentally
abusive.
When questioned on direct and cross-examination, however,
Dorothy Loftin denied ever stating that defendant "abused" her or
the children. Although Mrs. Loftin acknowledged that defendant
hit her on one occasion, she testified that she did not call the
police because she had no bruises and did not see a need to call;
she denied that she feared reprisal if she called.
Both the defense and the State presented testimony of
psychologists who evaluated defendant's mental health. Dr.
Edward J. Dougherty, a defense psychology expert, concluded that
defendant's aberrant behavior was consistent with the fact that
he suffered from "borderline personality disorder." On direct
examination, Dr. Dougherty explained that the disorder manifests
as
a pervasive pattern of instability of
personal relationships. Self-image sometimes
marked passivity. [sic] Begins in early
adulthood and appears in various ways. It
takes a long to develop. It is a very
serious personality disorder.
A person is believed to suffer this disorder if he or she
satisfies five out of nine criteria set forth in the American
Psychiatric Association's Diagnostic and Statistical Manual (DSM-IV). Dr. Dougherty testified that defendant met six or seven of
the nine criteria.
He demonstrated: (l) frantic efforts to avoid
real or imagined abandonment . . . (2) a
pattern of unstable and intense interpersonal
relationships characterized by alternating
between extremes of idealization and
devaluation (overridealization of his wife
and mother); (3) identity disturbance:
markedly and persistently unstable self-image
or sense of self; (6) affective instability
due to a marked reactivity of mood . . . (7)
chronic feelings of emptiness . . . (8)
inappropriate, intense anger or difficulty
controlling anger . . . and (9) transient,
stress-related paranoid ideation or severe
dissociative symptoms.
Dr. Dougherty further opined that defendant was experiencing moderate to severe symptoms when he committed the offenses. Dougherty based this conclusion on the degree of stress that defendant was laboring under at the time. Unlike the structured environments that defendant had experienced in the Navy, auto-mechanic school, or prison, defendant was struggling through a period where he did not have structure or stability. He was failing objectively -- in school, in his relationship with his wife, in his employment endeavors -- yet fighting to maintain the
image he hoped to achieve by putting on the appearance of
success. Dr. Dougherty explained that
Donald Loftin sees the world in black and
white . . . no grey areas. This is how he
judges people and life. And when he doesn't
see, when he starts being faced with the
reality of the world, there are gray areas in
everything, he can't handle it. Dealing with
people, dealing with jobs, dealing with
identity.
The defense also called numerous family members who
corroborated much of the factual background information provided
by Albarus, described their relationships with defendant, and
begged the jury to spare his life. Some of the family members
who testified included defendant's wife, parents, sisters, twin
brother, and his father-in-law. None of these witnesses
testified that defendant was abused during his childhood, and all
indicated that defendant's mother was devoted to her children.
In rebuttal, the State called Dr. Charles Martinson as its
psychiatric expert. Dr. Martinson concluded that defendant did
not suffer from any mental illness, disease, defect, or disorder
as defined in the DSM-IV. Rather, Dr. Martinson asserted that
defendant committed the murder for economic reasons. Dr.
Martinson added that the only "remorse" defendant exhibited
occurred when he learned that Marsh held two jobs. Defendant's
responses in a "sentence completion test" administered by a
defense-retained psychologist also revealed defendant's lack of
remorse. For example, when asked to complete the sentence
beginning "My greatest mistake was . . ." defendant wrote,
"become incarcerated." "I don't know how . . ." was completed to
read "I allowed myself to get into this predicament." "I feel
bad when . . ." was completed with "I think about my family."
"It hurts when . . ." was completed with "things I have achieved
in life are taken away" and "I only wish that . . ." was
completed with "racism is banished from society."
Dr. Martinson also concluded that defendant did not suffer
from a borderline personality disorder when he murdered Marsh.
Instead, he opined that defendant exhibited narcissistic and
antisocial personality traits. On cross-examination Dr.
Martinson acknowledged, however, that defendant did exhibit some
signs of emotional distress.
Although defendant did not testify, he did exercise his
right of allocution. See, infra, at ___ (slip op. at ).
On December 6, l994, the jury returned a death sentence,
finding that the State has proved each of the three aggravating
factors beyond a reasonable doubt. Although at least one juror
had found the existence of the statutory mitigating factors,
N.J.S.A. 2C:ll-3c(5)(a) and N.J.S.A. 2C:ll-3c(5)(c), and at least
one juror had found the existence of seventeen of the proffered
non-statutory mitigating factors, the jury unanimously found that
the three aggravating factors outweighed those nineteen
mitigating factors. The jury further found that each aggravating
factor individually outweighed the mitigating factors beyond a
reasonable doubt.
Defendant was sentenced to death on count I, knowing or
purposeful murder. Defendant's conviction for felony murder,
count II, was merged into his conviction for capital murder.
Defendant was sentenced to a term of twenty years with a ten-year
parole disqualifier on count III. He was sentenced to a term of
five years with a two and one-half year parole disqualifier on
count IV. The sentences on counts III and IV were made
concurrent to count I. The sentences were run consecutive to the
life sentence that defendant was serving for the Atlantic County
murder conviction.
A Notice of Appeal was filed with this Court on January ll,
l995. As a result of an article appearing in The Trentonian on
the day after the penalty-phase jury returned the verdict, the
defense submitted and argued a motion to interview the penalty-phase jurors. That motion was denied. Defendant's motion for a
limited remand was denied by this Court.
Defendant made two motions to expand the record, seeking to
include the autopsy report and affidavits stating that the
prosecutor failed to provide defense counsel with proper notice
in advance of obtaining the Atlantic County presentence report.
Both motions were granted.
Defendant argues that the death-penalty statute violates the prohibition against cruel and unusual punishment contained in the
Eighth Amendment of the federal Constitution. We have repeatedly
rejected similar arguments, see, e.g., State v. Harris, l4l N.J.
525, 574 (l995); State v. Biegenwald, l26 N.J. l, l6 (l99l)
(Biegenwald IV); State v. Moore, l
22 N.J. 420, 486 (l99l); State
v. Ramseur, l06 N.J. l23, l85-97 (l987), and continue to reject
them today.
A. Death-qualification of guilt-phase jury
In Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed.2d 137 (1986), the United States Supreme Court approved of the practice of "death qualifying" jurors. "Death qualification" excludes for cause those jurors whose views "would prevent or substantially impair the performance of [their] duties." Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 2526, 65 L. Ed.2d 581, 589 (1980); see also Ross v. Oklahoma, 487 U.S. 81, 85-89, l 08 S. Ct. 2273, ___, 101 L. Ed.2d 80, 88-90 (1988)(clarifying that death-qualification entails excluding jurors who would either always oppose or always support death penalty); Ramseur, supra, 106 N.J. at 248-56 (requiring New Jersey trial courts to follow Adams test). To death-qualify jurors, the trial court informs them of the capital nature of the case and then questions them closely on their views of capital punishment.
Two separate juries were empaneled for the guilt and penalty phases of defendant's capital trial because one of the
aggravating factors cited by the State for the penalty phase was
a prior murder conviction. To avoid the "blinding impact" of the
prior murder on the determination of guilt, this Court has
required separate juries. Biegenwald IV, supra, 126 N.J. at 43-44. The penalty-phase jury was fully death qualified.
Prior to jury selection for the guilt phase, defense counsel
made clear his objection to death qualification of the jurors who
would determine guilt:
Judge, as I stated on the record yesterday,
my position is that there should be no
mention whatsoever that this is a death
penalty case. I mean, as far as I'm
concerned that issue is totally irrelevant as
to whether this jury determines that Mr.
Loftin committed the offense or not. They're
determining the guilt or innocence, not
death.
I agree with the State there is some impact
and the impact is prejudicial. Any time you
mention death penalty to jurors or
prospective jurors, certain things start
going on in their heads. And I think when
the juror hears it's a death penalty [case,
the juror might think that] this guy is
guilty that's why the State is seeking the
death penalty. . . .
Ultimately, the trial court agreed not to inform the jury of
the potential death penalty in the case, but decided that if a
juror asked about the potential sentence, the trial court would
not lie; if the juror was unable to fairly and impartially decide
that issue, then that juror would be removed. Defense counsel
again complained:
Obviously, the only individuals that are
going to say, look, your Honor, I can't sit
are the individuals that are against the
death penalty. . . . So what we're going to
have, if we use that suggestion, Judge, is a
jury packed with people pro-death penalty.
However, no juror asked about the potential sentence, and thus
the guilt-phase jury deliberated without being death-qualified.
Defendant contends that the trial court's failure to sua
sponte death-qualify the guilt-phase jury and inform the jurors,
during voir dire and during the jury charge at the close of
trial, of the potential consequences of their decision, violated
his constitutional rights by "dilut[ing] the jury's
responsibility for the imposition of the death penalty,"
constituting plain error. State v. Mejia,
141 N.J. 475, 485
(1995) (quoting State v. Bey,
112 N.J. 123, 164 (1988) (Bey II)).
In Biegenwald IV, supra, l26 N.J. at 44, we stated that we
"most likely will require a two-jury system for all capital cases
in which the State seeks to prove [the c(4)(a)] factor." In
reaching that conclusion, we recognized the differences between a
jury's function in the guilt phase and in the penalty phase.
Prior-murder convictions are relevant to the
determination of the appropriate sentence
because the sentencing phase focuses in part
on the character of the defendant. The guilt
phase, however, is limited to a determination
of what the defendant did. See United States
v. Myers, 550 F.2d l036, l044 (5th Cir. l977)
("A concomitant of the presumption of
innocence is that a defendant must be tried
for what he did, not who he is."), cert.
denied,
439 U.S. 847, 99 S. Ct. l47,
58 L.
Ed 2d l49 (l978). Because of the prejudice
that could be engendered by voir dire prior
to the guilt phase about a defendant's other
murder convictions that are not otherwise
admissible as evidence during that portion of
the case, see Evid. R. 55, that questioning
should almost invariably come only after a
jury has found a defendant death eligible.
See Pinnell, supra, 3ll Or. at l2l, 806 P.2d
at ll6 (finding that "objective of a
bifurcated trial was thwarted" by voir dire
before guilt phase that "implied that
defendant had previously been convicted of
other crimes").
In State v. Erazo,
126 N.J. 112, 133 (1991), we again stated
our belief that "[a] separate jury [for the penalty phase] would
obviate death qualification of the guilt-phase jury." In Mejia,
supra, however, we held that trial courts in capital cases "must
inform juries of the legal effect of their findings." 141 N.J.
at 485. Both Mejia and Bey II involved one jury for both the
guilt and penalty phase hearings and neither involved the
prejudicial impact of factor c(4)(a) on a defendant.
That knowledge of a defendant's prior conviction would have
a "blinding impact" on a defendant's subsequent conviction is
undisputed. Biegenwald IV, supra, l26 N.J. at 43-43. Moreover,
defense counsel asserts, as have defense counsel in other cases,
that death-qualifying a jury prior to the guilt phase produces
conviction-prone juries. See, e.g., Lockhart, supra, 476 U.S. at
l73, l06 S. Ct. at l764,
90 L. Ed 2d at l47 (discussing studies
that purported to prove that "`death qualification' in fact
produces juries somewhat more `conviction-prone' than `non-death
qualified' juries"). Whether defense counsel is correct that
death qualification results in death-prone juries is a debatable
issue that we need not decide in this case.
Even in death-penalty cases, we have held that "except in
the most extreme cases, strategic decisions made by defense
counsel will not present grounds for reversal on appeal." State
v. Marshall,
123 N.J. 1, 93 (1991) (Marshall I). Thus, in
Marshall I, supra, we found no error when the court conducted a
limited death qualification at voir dire pursuant to defense
counsel's request. Ibid. Therefore, if defense counsel objects
to the death-qualification of the guilt-phase jury in a case
involving aggravating factor c(4)(a), a trial court shall deem
such an objection to be a waiver of defendant's right to a death-qualified jury in the guilt-phase. However, in the absence of
any such objection, trial courts will give guilt-phase jurors a
severely restricted death qualification, specifically not
informing them of defendant's prior conviction for murder. That
result presents a proper balance between the concerns expressed
by defense counsel that a death-qualified jury is more prone to
convict and the Court's holding that jurors should be told "of
the legal effects of their findings." Mejia, supra, l4l N.J. at
485 (quoting Bey II, supra, ll2 N.J. at l64-65).
Because defense counsel made a strategic decision that a
death-qualified jury might be more prone to convict and objected
to the death-qualification of guilt-phase jurors, his decision
does not provide grounds for a finding of plain error.
B. Voir Dire
l. Individualized voir dire
During the guilt phase, without objection, the trial court
conducted an in banc voir dire of the jury. Sixteen prospective
jurors from the entire venire were called for questioning and
told to provide responses to any question that applied to them.
The court instructed the remaining venire to "listen very
carefully to all of the court's remarks and questions. In the
event that one or any of these persons are excused, then it's
going to be necessary to replace them with someone from the
courtroom. Rather than repeat all of the questions . . . I'm
simply going to ask you if you've heard everything . . . and
whether or not you have any responses." The court further
repeatedly instructed the jurors that, if they felt uncomfortable
responding to any question, they could wait for a few more
questions and then raise their hands and seek a sidebar meeting
to discuss the issue on a more private level.
The court then read the entire indictment. It asked whether
the jurors knew anything about the case. The trial court next
described the location where the crime took place, and asked if
anyone was familiar with that location. The trial court again
questioned all jurors furnishing affirmative responses and asked
counsel whether additional questioning was needed.
The next day the court continued voir dire and employed the
same procedure, again encouraging jurors to approach the court at
sidebar to discuss sensitive issues. The court listed all
potential witnesses and individuals whose names were likely to be
mentioned during trial, asking whether any juror knew any of
them. Given that many witnesses would be law enforcement
officers, the court asked whether any juror would be inclined to
give more or less weight to their testimony. The trial court
also inquired whether any juror, their family, or close friends
had ever been employed by the Mercer County Prosecutor's Office
or any other law enforcement agency; whether they had been
victims of a crime; had ever been accused of a crime; whether
they had prior service on a grand or petit jury, and, to those
who acknowledged prior civil jury service, explained the
differing burdens involved in civil and criminal actions. If a
juror responded affirmatively to any of these questions, the
court questioned that juror more specifically.
Each juror was then required to provide pedigree information
such as name, residence, marital status, and occupations of
themselves and their spouses. For every juror, the court turned
to counsel and asked whether they had "any additional questions
or applications" and, at the end, asked counsel if they desired
additional sidebar. To each request, counsel responded
negatively.
R. 1:8-3(a) provides that "the court shall interrogate the
prospective jurors in the box after the required number are drawn
without placing them under oath. . . . At trials of crimes
punishable by death, the examination shall be made of each juror
individually, as his name is drawn, and under oath." Defendant
contends that the in banc voir dire violated both the requirement
of R. 1:8-3(a) and also failed to provide the "heightened" need
for juror impartiality in capital cases (citing State v.
Williams,
93 N.J. 39, 61 (1983) (Williams I)).
An individualized voir dire is required in capital cases
pursuant to R. 1:8-3(a) for two reasons. One purpose is to
ascertain "whether [the juror's opinion regarding capital
punishment] disables him from discharging the statutory duty to
decide what the punishment should be." State v. Mathis,
52 N.J. 238, 245 (1968)(emphasis added), rev'd in part on other grounds,
403 U.S. 946,
91 S. Ct. 2277,
29 L. Ed.2d 855 (1971); see also
State v. Williams,
113 N.J. 393, 413 (l988) (Williams II)(viewing
extensive voir dire as necessary to death-qualify the jury). The
second purpose behind the individualized voir dire is to ensure
that attorneys are more informed and better able to exercise
their challenges in order to ensure an impartial jury. Ibid.
While an in banc voir dire is ordinarily deemed adequate to
ensure an impartial jury, we insist on an individualized voir
dire for capital cases "[b]ecause of the range of discretion
entrusted to a jury in a capital sentencing hearing." Turner v.
Murray,
476 U.S. 28, 35,
106 S. Ct. 1683, ____,
90 L. Ed.2d 27,
35 (1986)(affirming conviction but reversing sentence due to
failure to conduct voir dire adequate for sentencing jury).
Because juries have so much more discretion, there is a greater
need to screen out those jurors who cannot be impartial.
We find no error in the trial court's decision to conduct an
in banc voir dire. In State v. Manley,
54 N.J. 259, 282-83
(l969), the Court set forth the reasons for the adoption of R.
l:8-3(a) and its belief that the in banc procedure would provide
an impartial jury. The purposes behind an individualized voir
dire are unique to the sentencing phase. The guilt-phase jury in
this case was not determining the sentence, and thus was not
deciding a case in which death could be the punishment.
Therefore, R. 1:8-3(a) does not require an individualized voir
dire.See footnote 1
Moreover, defendant's claim that an individualized rather
than an in banc proceeding would have led to more candid
responses by jurors is unsupported by the evidence. There is no
indication in the record that the prospective jurors were not
fully candid with the court or would have been more candid if
they were asked the questions in an individualized voir dire.
Defendant points to jurors who failed to disclose criminal
backgrounds; however, those jurors were all questioned at
sidebar, in an individualized manner, yet still failed to
disclose the information. Because all the examples cited by
defendant occurred initially at sidebar when a new panelist
replaced a prospective juror struck by a preemptory challenge,
defendant's assertion that prospective jurors kept silent for
fear of other people learning their secrets is unfounded.
Although no voir dire is perfect, State v. Martini, l3l N.J.
l76, 2l7 (l993) (Martini I), we are satisfied that this voir dire
was sufficient to secure an impartial jury in the guilt phase.
The trial court's voir dire was thorough and probing. After
eight peremptory challenges by the defense and seven by the
State, both the defense and the State agreed that the empanelled
jury was satisfactory.
2. Adequacy of voir dire on racial bias
We have previously held that when, as in this case, the
trial involves an interracial murder, defendant is entitled to
have the potential jurors questioned about prejudices and biases.
Ramseur, supra, 106 N.J. at 243-48; see also State v. Horcey,
266 N.J. Super. 415, 418 (App. Div. 1993)("Whenever there is a racial
or ethnic difference between victim and accused, at defendant's
request the trial judge should inquire of the prospective jurors
as to whether the disparity will affect their ability to be
impartial.").
Prior to voir dire, defense counsel requested that the trial
court ask the following questions:
Mr. Loftin is a black man, victim white,
would that in any way prejudice or influence
your sitting as a juror in this case?
Do you know of any reason, such as prejudice,
bias, or other opinion that you can think of
that would prevent you from serving as a
completely impartial juror?
The trial court agreed to ask the first question and noted that
the other question would come out in the court's own extensive
voir dire. The court informed defense counsel that "if at the
end of the court's preliminary questioning of the jurors you
still have additional questions that you'd like to raise from
this list, we can address it at that time."
The trial court gave the following instruction to the
prospective jurors:
But in deciding what the facts are, you are
to do so without bias, without prejudice,
without sympathy, passion, or favor of any
kind, and I'm going to talk a little bit more
about bias and prejudice, because for most of
us, when we hear the word prejudice, we get
defensive because w