(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 Octover 25, 1994 -- Decided July 12, 1995
O'HERN, J., writing for the Court.
A jury convicted Joseph Harris of murdering Ron Ellison and of committing other offenses against
Ellison, his wife Irene Ellison, and their two minor daughters. (Because the case involves the sexual assault
of juveniles, fictional names are used to identify the victims.) During the penalty phase, the jury determined
that Harris should be sentenced to death.
In 1984, Harris invested $10,00 with Ellison's firm, an investment company specializing in precious
metals and coins. Harris was paid dividends for a short period. The payments eventually stopped, and the
company went out of business in 1985. Harris wanted his $10,000 back. Harris unsuccessfully sought to talk
to Ellison on several occasions.
Harris wrought his frightful revenge on November 15, 1988. He went to the Ellison residence
dressed in black and with his face covered by a mask. He handcuffed and blindfolded Ellison and his family
in the master bedroom. He repeatedly asked for money, and was given $700 from Mrs. Ellison's purse.
Harris was not appeased. He raped Mrs. Ellison and her two children.
Mrs. Ellison heard what sounded like a gun being loaded. Harris took Ellison from the room. Mrs.
Ellison then heard her husband outside screaming "He's going to kill me." Mrs. Ellison managed to break a
window and scream to a neighbor who was walking a dog. The neighbor called police.
Police found Ellison's body in the backyard, lying face down on his stomach. He had died from a
bullet that entered the back of his neck on the left side and which cut his spinal cord. The State's
pathologist testified that Ellison probably was shot while he was on the ground. A black hood with openings
for the eyes was found on the floor of the den. Also found were a pistol (not the murder weapon),
ammunition, a flashlight, and syringe.
In October 1991, Harris was arrested in connection with the unrelated killings of four postal workers
in Bergen County. His home was searched. The search disclosed handcuffs, a flashlight, and syringes like
those found in Ellison's home. Also found were newspaper articles on the Ellison homicide and a letter
from Harris to Ellison, which concludes with a postscript warning that if Harris died "in combat," he might
return as a "ghost."
In the face of this evidence, Harris could not realistically deny that he had killed Ellison. His
principal defenses were insanity and diminished capacity.
HELD: None of the errors claimed by defendant constitute reversible error, and the cumulative effect of the
claimed errors did not deny defendant a fair trial. Defendant's convictions and death sentence are affirmed.
1. Harris argues that the State's offer of a plea to a life sentence demonstrated that the death penalty
was inappropriate and excessive in this case, and the State's determination to seek the death penalty after he
rejected the plea was arbitrary and unconstitutional. The State's original decision to proceed with the matter
as a capital case continued to be appropriate when defendant chose not to plead guilty. (pp. 7-10)
2. The trial court did not err in refusing to dismiss certain jurors for cause. One juror's expression of
skepticism about psychiatric evidence and another's statement regarding convicted murderers "rotting" in jail
were troublesome. Nonetheless, on the whole, defendant had a fair opportunity to select jurors. (pp. 10-15)
3. It was not reversible error for the trial court to fail to instruct the jury on the difference between
intent-to-kill murder and serious-bodily-injury murder, and that the jury could return a non-unanimous
verdict in respect of defendant's intent which would result in a life sentence. The jury returned a separate
verdict sheet that found defendant guilty of knowingly and intentionally causing death, and no rational jury
could have found that one who shoots a handcuffed victim in the back of the neck would not have been
practically certain that death would result. Any error in respect of the jury charge on this issue was
therefore harmless. (pp. 15-24)
4. The trial court's instruction that the jury not consider the evidence of mental disease or defect until
after it had rejected the insanity defense did not create a risk that the jury would not consider whether
defendant's mental condition prevented him from forming the requisite mental state. The trial court went to
great lengths to fashion a fair and correct charge in the face of the difficult task of assuring that the jury not
be confused by the constitutionally-driven burden shifting between insanity (the defendant bears the burden)
and diminished capacity (the State bears the burden). When considered as a whole, especially in light of the
correct written instructions provided to the jury, the charge correctly stated the law. (pp. 25-33)
5. There was no need for an instruction that the jury must be unanimous on the felony underlying the
aggravating factor of murder committed during a felony where defendant was convicted of every felony for
which he was charged. (pp. 40-44)
Defendant's convictions and death sentence are AFFIRMED.
JUSTICE HANDLER, dissenting in part and concurring in part, is of the view that defendant's
convictions should stand but that his death sentence should be reversed. He considers the instructions of the
trial court in the penalty phase to be fatally deficient in two areas: the failure to expressly require that the
jury agree unanimously on the felonies that served as the basis for the aggravating factor of murder
committed during a felony; and the failure to advise that the jury could consider evidence of defendant's
mental impairment under the catch-all mitigating factor even if the jury found such evidence insufficient to
establish the statutory mitigating factors that expressly implicate such evidence.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, GARIBALDI, and STEIN join in
JUSTICE O'HERN'S opinion. JUSTICE HANDLER filed a separate opinion concurring in part and
dissenting in part. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
3 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH HARRIS,
Defendant-Appellant.
Argued October 25, 1994 -- Decided July 12, 1995
On appeal from the Superior Court, Law
Division, Morris County.
Mordecai Garelick and Marcia Blum, Assistant
Deputy Public Defenders, argued the cause for
appellant (Susan L. Reisner, Public Defender,
attorney).
Joseph Connor, Jr., Assistant Prosecutor,
argued the cause for respondent (W. Michael
Murphy, Jr., Morris County Prosecutor,
attorney).
Robert E. Bonpietro, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General, attorney).
The opinion of the Court was delivered by
O'HERN, J.
A Morris County jury convicted defendant, Joseph Harris, of
the murder of R.E., and of other offenses against R.E., his wife,
I.E., and their two daughters. (Because this case involves
sexual assault of juveniles, we do not use actual names.
N.J.S.A. 2A:82-46a. To avoid dehumanizing the issues, we will
use the assumed names of Ron and Ilene Ellison for the adult
victims.) In a sentencing proceeding, the jury also found the
presence of statutory aggravating factors that established death
eligibility. After considering the statutory aggravating and
mitigating factors, the jury determined that defendant should be
sentenced to death. For the non-capital convictions, the court
imposed two consecutive life sentences and eighty years of
consecutive sentences with a ninety-year period of parole
ineligibility.
The principal claims raised in defendant's appeal are: (1)
a selective capital prosecution of this case occurred after
defendant rejected a plea offer with a non-capital sentence;
(2) the trial judge incorrectly charged the jury on the form of
murder that is death-eligible under the principles of State v.
Gerald,
113 N.J. 40 (1988); (3) the trial judge failed to inform
the jury that it could unanimously find defendant guilty of
murder even if it did not agree on the form of murder
(intentional or serious-bodily-injury (SBI) murder); (4) the
trial judge incorrectly charged the jury that it should not
consider the diminished-capacity defense based on mental disease
or defect until after it had rejected defendant's evidence of
insanity; and (5) the trial judge improperly denied an
affirmative defense to robbery based on a claim of right to funds
in the possession of the murder victim. We find that those and
other claimed errors did not taint the trial. The convictions
are affirmed.
For purposes of this appeal we draw generally upon defendant's statement of facts. In 1984, defendant invested $10,000 with Ron Ellison's firm, an investment company specializing in precious metals and coins. Defendant received dividend checks for the first few months thereafter. Eventually, however, the monthly checks became smaller and payments finally stopped. The company went out of business in 1985. Defendant wanted his $10,000 investment back. He visited the company offices and telephoned several times, attempting to talk to Ellison about the return of his money. Defendant thought that Ellison was avoiding his obligations to him.
Ellison and his wife lived with their two daughters, ages seven and nine. On November 15, 1988, Harris wrought his frightful revenge. On that date, it was after 8:00 p.m. when Ilene Ellison returned home from work to a night of horror. The front door was locked but it was opened by a man dressed in black, his face covered by a mask. He struck her and told her that her family was upstairs and that if she did what he told her to do nobody would get hurt.
Upstairs she found her husband and her two daughters handcuffed, blindfolded, and seated on the bed. He handcuffed and blindfolded Mrs. Ellison. Defendant repeatedly asked for money. Mrs. Ellison gave him $700 from her purse. He was not appeased. Defendant raped Mrs. Ellison and her two children.
Mrs. Ellison managed to loosen her blindfold and could see
defendant walking around. She observed that he wore a mask and
surgical gloves. After continuous demands for more money, he
raped Mrs. Ellison again and warned her and the children that if
he saw anything in the newspapers about what occurred he would
come back to get them.
After defendant left the room, Mrs. Ellison heard a sound
like a gun being loaded. She heard her husband say to defendant,
"I'll take you downstairs. * * * I have coins downstairs."
Mrs. Ellison saw a gun in the master bedroom on the floor, which
she kicked under the bed. She then heard her husband outside
screaming, "he's going to kill me." Unable to open the window
because of her handcuffs, Mrs. Ellison broke a window with the
back of her hand. She screamed to a neighbor walking his dog
outside. The neighbor called the police. Defendant returned
upstairs and tried to force his way back into the bedroom.
Because Mrs. Ellison had barricaded the door with a dresser, he
was unsuccessful.
Upon arrival, the police found Ellison's body in the
backyard. He was lying face down on his stomach. He had blood
on his neck and shoulders. A bullet fell from the wound when the
medical examiner moved the body. An autopsy report showed that
Ellison had died from a bullet that entered the back of his neck
on the left side, cutting the spinal cord and disconnecting the
brain from the rest of his body. The State's pathologist
testified that the victim probably was shot while he was on the
ground.
A black hood with an opening for the eyes was found on the
floor of the den. In addition, the pistol that Mrs. Ellison had
kicked under the bed in the master bedroom, two pistol magazines,
a box of ammunition, a flashlight, and a syringe and its plastic
wrapper were also found. Two days later, a .22-caliber bullet
shell was found in the yard adjacent to the Ellisons' backyard.
In October 1991, almost three years later, defendant was
arrested in connection with unrelated killings of four postal
workers in Bergen County. His home was searched. That search
disclosed handcuffs and a flashlight like the one found in the
Ellisons' home. Syringes found in the search had markings
similar to the one found at the Ellison house. Two newspaper
articles on the Ellison homicide and two snapshots of defendant
in Ninja attire, armed with a martial-arts throwing star and a
Ninja sword were discovered. The search produced two undated
letters written by defendant. In both letters defendant calls
himself a "warrior" likely to die "in combat" and "with great
honor." One note, which is fairly brief and concerns Ron
Ellison, has a postscript warning that after defendant died in
combat he "might return as a ghost." In the face of that
evidence defendant could not realistically deny that he killed
Ron Ellison. His principal defenses were insanity and diminished
capacity.
Defendant's life was troubled. He was born in 1956 to an
inmate of the State Women's Prison in Clinton, New Jersey. He
was taken from his mother at the age of two months and given to
his aunt and uncle. Defendant had hardly any contact with his
mother and did not meet his father until he was eleven years old.
He began to believe that he was cursed because he was born in
prison and rejected by his parents. He did graduate from high
school and served in the United States Navy. He attended classes
for one semester at a local community college.
During his childhood, defendant began to fantasize. He had
an imaginary friend and drew guillotines, swords, and guns. At
the age of nine or ten he began to hear the voice of an Indian
Chief. Eventually, however, the dominant voice defendant began
to hear was that of a Ninja spirit, a fierce warrior whom
defendant believed had been with him throughout his life.
"Ninja" describes a member of a class of feudal Japanese warriors
who were highly trained in the art of stealth. Commonwealth v.
Hudgens,
582 A.2d 1352, 1355 n.9 (Pa. Super. Ct. 1990). Daimyos,
the Japanese feudal lords, frequently employed Ninjas as spies
and assassins because of their specialized training. Ibid. The
Ninja costume is black and similar in style to a karate outfit,
but it includes a black hood. Id. at 1355 n.7. Defendant
claimed that this Ninja spirit directed him to go to Asia to
fulfill his prophecy. He enlisted in the Navy with the
understanding that he would be stationed in Asia. After serving
two years on an aircraft carrier in the Navy, he received a
general discharge for failure to attend to his duties.
In November 1981, he began to work at the post office in
Ridgewood, New Jersey, and remained there until May 1990. At
this job he claimed to experience discrimination as an African-American. Believing that he needed to be able to defend himself,
he took up karate. Defendant occasionally arrived at work
dressed in black, an imitation of Ninja garb, or in a military
camouflage outfit, and performed martial-arts maneuvers before
fellow employees. His co-workers described his behavior as
"irrational," "odd," and "weird."
1. Was the prosecutor's decision to seek the death penalty after offering a plea to a life sentence an abuse of discretion, resulting in the wanton and cruel imposition of the death penalty in violation of defendant's constitutional rights?
In April 1993, during jury selection, the prosecutor offered a plea agreement to defendant pursuant to which the prosecutor would seek only a life sentence. Defendant claims that the prosecutor thereby announced his view that the death penalty was inappropriate and excessive in his case. When defendant tore up the executed plea in an emotional outburst moments before he was scheduled to enter the plea, the State continued to trial with a capital case. Defendant contends that he was subjected to a sentence of death rather than life imprisonment because he is
mentally ill. Defense counsel does not claim that the State's
initial decision to make this a capital prosecution was based on
unsupported aggravating factors. Instead, they claim that an
error lies in the State's reversal of its decision to prosecute
his case as a non-capital case solely because the mentally ill
defendant did not enter the plea as negotiated.
We have recognized the potential for arbitrariness in
prosecutorial decisionmaking with respect to capital cases. In
State v. McCrary,
97 N.J. 132, 141 (1984), we acknowledged the
significant consequences that flow from a decision to seek a
death sentence and found ourselves persuaded "that some judicial
scrutiny of prosecutorial charging [was] necessary." Our stated
goal was "to effect only a minimal intrusion into this area of
prosecutorial discretion" in light of the "broad discretionary
powers" historically exercised by prosecutors in determining
charges. Id. at 142. In State v. Koedatich,
112 N.J. 225, 252
(1988), cert. denied,
488 U.S. 1017,
109 S. Ct. 813,
102 L. Ed.2d 803 (1989), we noted that Gregg v. Georgia,
428 U.S. 153,
96 S.Ct. 2909,
49 L.Ed.2d 859 (1976), holds that "the federal
Constitution does not require limits on prosecutorial discretion
beyond the aggravating factors outlined in the statute." We
looked beyond that requirement, however, and found that "the New
Jersey Constitution * * * mandates consistency and reliability in
the administration of capital punishment." Id. at 251 (citing
State v. Ramseur,
106 N.J. 123, 190 (1987)).
As we have stated:
The critical question in assessing
prosecutorial discretion is what standards
are applied to move a case from death-possible to death-eligible status. * * *
* * * [T]here are a myriad of reasons
why a prosecutor handles different cases
differently, such as the willingness of a
defendant to plead guilty, the strength of
the State's case, a defendant's cooperation
in the State's case against a co-defendant,
the relative weight of the statutory
aggravating and mitigating factors, the
availability and relative credibility and
persuasiveness of witnesses, and the
resources of the county prosecutor's office
* * * .
In applying those principles, we do not find that this prosecution evokes the type of cruel and unusual punishment or arbitrary misuse of prosecutorial power that concerns us. Defendant's mental impairments did not serve as the basis for his exposure to the death penalty. Rather, the prosecutor's original decision, to proceed with the trial of the matter as a capital case, continued to be appropriate when defendant chose not to plead. Obviously, defendant's mental capacity was to be a contested issue in the trial. Only a guilty plea could avert revisiting the catalog of horrors suffered by this family. (Ultimately, the two minor children were not forced to testify at the trial because defendant stipulated that they would testify that they had been sexually assaulted.) In addition, the guilty pleas in Morris County could have become aggravating factors in subsequent proceedings against defendant in Bergen County.
We cannot say that the prosecutor abused his discretion in
continuing with the capital trial of this matter. This case is
not like State v. Jackson,
128 N.J. 136 (1992), in which the
prosecutor changed course in midstream. In this case it was
defendant who caused the change in the course of the proceedings.
Defendant had not been declared incompetent to stand trial.
Defendant's claim of insanity did not compel the prosecutor to
withdraw the notice of aggravating factors. Therefore, the
prosecutor's decision to pursue a capital prosecution was not an
abuse of discretion.
2. Did the trial court err in refusing to
dismiss jurors for cause, thereby depriving
defendant of his full allotment of peremptory
challenges?
Before us, defendant focused his appeal on two jurors,
Arlene P. and Laura J. The test that we have adopted for juror
disqualification in State v. Ramseur, supra, 106 N.J. at 255-56,
is whether the jurors' views on the death penalty would have
substantially interfered with the performance of their duties in
accordance with the court's instructions and the law.
Defense counsel initially requested that the court remove
juror Arlene P. from the panel on the ground that she was an
"automatic death penalty" person. Counsel also sought dismissal
for cause based on the juror's skepticism about psychiatric
testimony. When asked if she could think of any case in which
the death penalty would not be appropriate for an individual
convicted of murder, she responded, "I can't. No." Later, in
response to rehabilitative questions posed by the prosecutor
asking if she were the kind of person who would vote for the
death penalty automatically, she replied, "I would have to weigh
and measure."
Defendant argues that this kind of forced rehabilitation
encouraged the juror to shield her natural views. We have
reviewed the colloquy between the prosecutor and the witness and
the court's questions. We are satisfied that the court correctly
held that the witness' views would not have substantially
interfered with her ability to decide a capital case. The court
concluded that her inability to give an example of a case in
which the death penalty was inappropriate occurred simply because
"she couldn't think of a situation at this time."
The court did not rigidly force jurors' responses into a
series of "yes" or "no" answers. It gave great leeway to counsel
in the voir dire process. The court and counsel posed various
hypotheticals to assess the jurors' attitudes.
More troubling were Arlene P.'s answers to questions about
psychiatric testimony. When asked her opinion of such testimony,
she said: "I don't think it's fair. I--, I--." She explained
that she thought the use of such testimony was fair "[i]f the
psychiatrist was honest * * * ." The most that she said was "I
guess it wouldn't be a problem. It's an -- it probably wouldn't
be a problem." The court asked her if she would be able to make
a determination "as to that particular witness's testimony
automatically." Defense counsel characterizes that as asking
whether you believe in apple pie, the flag, and motherhood. Even
the prosecutor was concerned that the court's questions could not
"necessarily cure all the concerns that [defense] counsel
raised," but the court refused to dismiss Arlene P. for cause
because of her candor in expressing skepticism about psychiatric
evidence.
We have required that trial courts permit a full opportunity
to ask prospective jurors about their attitudes toward insanity
and mental-health defenses. State v. Moore,
122 N.J. 420, 453-54
(1991). Here, as in Moore, the concept of mental disease was
critical to defendant's case. "Anyone moderately familiar with
criminal trials and the public's reaction where juries acquit on
murder charges by reason of defendant's insanity knows the
strength of these concerns and the vulnerability of the justice
system to extreme erosion of confidence. Sociological studies
confirm this." In re Edward S.,
118 N.J. 118, 139 (1990) (citing
Valerie P. Hans, An Analysis of Public Attitudes Towards the
Insanity Defense,
24 Crim. 393, 396, 404 (1986) (89.2" of those
polled believed that insanity defense allowed guilty persons to
go free)).
Whether those figures are accurate is not the issue. Many
people have a great deal of difficulty in accepting insanity as a
meritorious defense. See State v. Jasuilewicz,
205 N.J. Super. 558, 567 (App. Div. 1985) (requiring, in circumstances of case,
"searching" judicial inquiry on juror attitudes toward insanity
defense), certif. denied,
103 N.J. 467 (1986). Through
questionnaires, its own questions, and with the assistance of
counsel, a court should decide whether a juror can evaluate the
testimony of psychiatric witnesses by the same standard that he
or she would apply to the testimony of any other witness.
That is the approach that was followed here. The prosecutor
explained to Arlene P. that "we want[] to put a jury in a
position of to be, more or less, a blank slate and then hear all
the circumstances and evidence," and that court and counsel were
concerned about her willingness to deal with psychiatric
testimony. She responded: "I guess I should have answered in a
more direct way, which I didn't. I'm sure I don't have any -- I
guess I could, you know, evaluate [a case] with a psychiatric
evaluation." (Emphasis added). On balance, the court did not
err in assessing her ability to serve. The entire colloquy shows
a frank exchange of the juror's views and a willingness to
evaluate psychiatric evidence.
The other challenged juror, Laura J., was asked to describe
her attitude toward the death penalty, and responded:
"[S]ometimes it would be advisable. Rather than have somebody
rot in prison if they're never going to make anything of
themselves." She explained her answer by saying: "What I meant
by that was if there's no hope of rehabilitation or if it's just
simply not going to do any good because the crime was too
horrible the circumstances were too horrible, I don't know what
they are but I could--I really could go either way."
Defendant argues that she should have been dismissed for
cause because the view that execution is preferable to rotting in
prison has no place in deciding the fate of an individual who
wishes to live rather than die. Defense counsel argues that
Laura J.'s position, though it might be altruistic, would
substantially impair her application of the death-penalty
statute. However, those were isolated exchanges in the complete
questioning. Immediately after volunteering her first remarks
about a death-sentenced prisoner not having to rot in jail, she
explained that she did not feel that in all instances a murderer
should receive the death penalty. The trial court's reaction was
that "[S]he is very thoughtful. She's trying to consider her
answers before she responds." Laura J. agreed that she would
weigh the aggravating and mitigating circumstances.
These were close questions. Arlene P.'s views on
psychiatric evidence were troublesome, as was Laura J.'s view
regarding convicted murders "rotting" in jail.
Even if the trial court erred in seating those two jurors,
we do not find that the loss of two peremptory challenges
produced an unfair trial. In State v. Bey,
112 N.J. 123, 154
(1988), we explained that an improper denial of a for-cause
challenge does not always require a new trial. Among the factors
to be considered are whether the jurors were eventually removed
from the jury, the stage at which they were removed, the effect
on counsel's strategy, any apparent unfairness to the defendant,
and whether additional peremptory challenges were required.
Court and counsel were well aware of those standards. Defendant
requested additional challenges. The court granted defendant an
additional peremptory challenge to remove one juror as to whom a
challenge for cause had been denied. The State exercised about
one-half of its allotted peremptory challenges. Defendant had a
fair opportunity to select jurors. Both defense counsel and the
prosecutor were given great leeway in posing voir dire questions
to the jurors. The court was receptive to almost all of
counsels' requests in framing questions. The jury was fairly
selected.
3. Did the trial court commit Gerald error
by failing to define the difference between
intent-to-kill murder and SBI murder in its
jury charge?
The Legislature amended the New Jersey Code of Criminal
Justice in 1979, c. 178, to include two forms of purposeful or
knowing murder. N.J.S.A. 2C:11-3a(1) and (2) (criminal homicide
constitutes murder when the actor purposely or knowingly causes
death or serious bodily injury resulting in death). (Felony
murder is a third form of murder. N.J.S.A. 2C:11-3a(3).) As we
explained in State v. Gerald, supra, 113 N.J. at 77-78, when the
death penalty was superimposed on the Code of Criminal Justice in
1982, no specific reference was made to which form of knowing and
purposeful murder under N.J.S.A. 2C:11-3 would be death-eligible.
However, the legislative history of the act helped us determine
that it was only the intentional killing that was to be subject
to the death penalty. Id. at 89-90.
We thus ruled in Gerald that if required by the evidence a
jury must consider, in the alternative, whether defendant
purposely or knowingly caused death, or purposely or knowingly
caused serious bodily injury that resulted in death. Only the
former offense renders a defendant death-eligible. Id. at 69-70.
In State v. Dixon,
125 N.J. 223, 253 (1991), we said: "Under our
system of justice only a jury that knows the difference between
the two forms of murder and the question that it must [answer]"
may decide who shall be sentenced to death.
Defendant contends that the jury charge did not meet those
standards. The charge joined together the two forms of murder
without clearly distinguishing them. For example, in its charge
the court said:
Now, a person is guilty of murder if he
purposely causes death or serious bodily
injury resulting in death or knowingly causes
death or serious bodily injury resulting in
death. In order for you to find the
defendant guilty of murder, the State is
required to prove each of the following
elements beyond a reasonable doubt, one, that
the defendant caused [Ron Ellison's] death or
serious bodily injury resulting in [Ron
Ellison's] death and two, that the defendant
did so purposely or knowingly.
* * * [A] person who causes another's
death does so purposely when it is the
person's conscious object to cause death or
serious bodily injury resulting in death. A
person who causes another's death does so
knowingly when the person is aware that it is
practically certain that his conduct would
cause death or serious bodily injury
resulting in death. The nature of the
purpose or knowledge with which the defendant
acted towards [Ron Ellison] is a question of
fact for you the jury to decide.
That charge separates the mental states of knowledge and
purpose, not the mental intents to kill or seriously injure.
Later, the court charged the jury: "If you determine that the
State has proven beyond a reasonable doubt that the defendant
purposely or knowingly caused death or serious bodily injury
resulting in death you must find the defendant guilty of murder."
Conscious of the Gerald issue, the court in reviewing the
jury's verdict sheet at the conclusion of the charge, explained
that there were two verdicts of murder: "[G]uilty of murder for
purposely or knowingly causing death by his own conduct or guilty
of murder for purposely or knowingly causing serious bodily
injury resulting in death. Check off one of those." However,
neither the instructions nor the verdict sheet explained that
only the first form of murder was death-eligible.
Defendant contends that this reference to the verdict sheet,
unaccompanied by a reinstruction that the jury must so find
unanimously and beyond a reasonable doubt, diluted the State's
burden of proof. We are satisfied that, taken in its entirety,
the court's charge always emphasized the State's burden to prove
those elements (that trigger death-eligibility) unanimously and
beyond a reasonable doubt. It stated that "the burden of proving
the defendant guilty of the offenses charged here beyond a
reasonable doubt is always on the State and that burden never
shifts." The jury understood its role in choosing the murder
verdict. Among the first comments made in general instructions
to the jury panels were these:
[U]nder our law, only certain murders are
punishable by death. * * * A defendant
convicted of murder is subject to the death
penalty only if he purposely or knowingly
caused the death of the victim by his own
conduct or as an accomplice procured the
commission of the offense by paying or
promising to pay anything of a pecuniary
value.
A defendant who is convicted of
knowingly causing serious bodily injury
resulting in death is not subject to the
death penalty. Stated differently, a
defendant who intended to inflict only
serious bodily injury and death
unintentionally results is guilty of murder,
but is not subject to the death penalty, and,
similarly, a person convicted of felony
murder is not subject to a death penalty.
Every juror was asked if he or she understood the concept of
a presumption of innocence and accepted that the State bore the
burden of proof on every element of the charge. Defense counsel
did ask the trial court to indicate in its instructions that the
purposeful or knowing murder verdict was the capital-murder
verdict. Counsel could, however, point to no language in Gerald
that required that instruction. The prosecutor agreed that some
reference in the verdict sheet might be warranted. The court
seemed hesitant to do so because it might appear to the jury that
it was thereby making a decision on the penalty, although it
recognized that it could give the jury a cautionary instruction.
In the end, the court was satisfied that "we would be able to
tell from the verdict that the jury checks off whether it's
capital or non-capital." The point could have been more clearly
stated in our Dixon decision.
In future cases, whether required by constitutional
compulsion or not, courts should explain to juries the difference
between the forms of murder submitted for their verdict (e.g.,
where appropriate, murder as principal or accomplice, or as
accomplice who has given value to procure the killing), that some
are capital and others are not, and that they must agree
unanimously and beyond a reasonable doubt on those elements of
their verdict that trigger death eligibility. Under the
principles of State v. Mejia, ___ N.J. ___ (1995) (also decided
today), and State v. Brown,
138 N.J. 481 (1994), courts must
instruct juries that to convict one of murder that is not death-eligible they need not unanimously agree on the form of murder,
provided that they agree unanimously and beyond a reasonable
doubt that the defendant is guilty of murder.
But this is not a case of a reviewing court with an
uncertainty about the basis for the jury's verdict. Nor is this
a case in which the jury convicted defendant of murder without
specifying on which of the two distinguishable bases he was
convicted. See State v. Gerald, supra, 113 N.J. at 92. We have
a separate, unanimous verdict that the defendant by his own
conduct knowingly or purposely caused the death of Ron Ellison.
Even when we could not discern the basis for the jury's
murder verdict (intent to kill or SBI), we have not reversed on
Gerald grounds absent a rational basis for the jury to find an
intent merely to cause serious bodily injury. See State v. Bey,
129 N.J. 557, 581 (1992) (finding failure to give Gerald charge
harmless, even when aggravated manslaughter had been charged,
because "evidence that defendant [who stomped and strangled
victim] intended to cause death or knew that death was
practically certain to occur [was] so compelling as to exclude
the possibility that he possessed a less culpable state of
mind"); State v. Rose,
120 N.J. 61, 63-64 (1990) (holding that
one who fired shotgun into police officer's stomach at close
range had to be practically certain the shot would cause death);
State v. Hightower,
120 N.J. 378, 413-14 (1990) (holding that
shooting victim in chest, neck, and head supports a finding of
intent to kill). Compare State v. Clausell,
121 N.J. 298, 313-16
(1990) (finding evidence that defendant, aiming low, shot victim
through door could rationally support finding that defendant
intended only serious bodily injury); State v. Pennington,
119 N.J. 547, 560-65 (1990) (finding evidence that defendant
reflexively fired gun when victim threw a glass at him was
sufficient to warrant Gerald charge).
In this case, the jury returned a separate verdict sheet
that found the defendant guilty of knowingly and intentionally
causing death, the principal theme of the defense was insanity or
diminished capacity, and no rational jury could have found that
one who shoots a handcuffed victim in the back of the neck would
not have been practically certain that death would result.
Therefore, we find that any failure to describe more fully the
difference between intent-to-kill murder and SBI murder was
harmless.
The New Jersey Constitution was amended in 1992 to permit
capital punishment of a defendant who intended only serious
bodily injury resulting in death without offending the
prohibition against cruel and unusual punishment contained in the
New Jersey Constitution. N.J. Const. art. 1, ¶ 12. The
Legislature amended the Criminal Code to reflect that change.
N.J.S.A. 2C:11-3i.
Because this homicide took place before those constitutional
and statutory amendments, the Gerald distinction applied to this
trial. A capital charge without distinction between the two
forms of murder under our statute (intentional or SBI) would not
offend the New Jersey Constitution. Courts and counsel
formulating charges to juries in future cases, however, should
clarify that the mental state required for a capital conviction
based on SBI murder should be consonant with the federal
constitutional mandate in Tison v. Arizona,
481 U.S. 137,
107 S.
Ct. 1676,
95 L. Ed.2d 127 (1987), that the actor be recklessly
indifferent to whether the result of the conduct would be death.
State v. Gerald, supra, 113 N.J. at 74-75.
4. Should the trial judge have instructed
the jury that if it agreed that defendant
purposely or knowingly caused death or
serious bodily injury resulting in death but
was divided on the question of whether the
defendant's intention was to kill or injure,
it could return a verdict of guilty of non-capital murder on the basis of that non-unanimous finding?
This point is identical to one raised in State v. Mejia,
supra, ___ N.J. ___, also decided today. In Mejia, ___ N.J. at
___ (slip op. at 13), following the principles set forth in State
v. Brown, supra,
138 N.J. 481, the Court explains that a jury
need not be unanimous on the various theories under which guilt
for murder may be established. Thus, for example, one may be
found guilty of murder even if jurors do not unanimously agree
whether the actor's role was that of principal, accomplice, or
co-conspirator. State v. Brown, supra, 138 N.J. at 520-22. So,
too, in non-capital murder cases we have never required that a
jury be instructed that it must be unanimous on whether the
defendant knowingly or purposely intended to cause death, or
knowingly or purposely intended to cause serious bodily injury
resulting in death. In State v. Mejia, supra, ___ N.J. at ___
(slip op. at 13), the Court holds that in the circumstances of
that case the jury should have been instructed that it could have
returned a verdict of guilty of murder although they were not
unanimous on the theory of murder, whether intentional or SBI.
If there were any possibility that this jury reached an
incorrect verdict because of the omission of a Brown/Mejia
charge, we would set aside the capital conviction. Given the
overwhelming evidence of intent to kill and the absence of any
evidence of an intent merely to injure, we are convinced that the
omission of such a charge did not prejudice defendant. The
inexorable focus of this case was the troubled mental state of
defendant. In his opening statement, defense counsel
acknowledged where his focus lay, saying "we do not suggest for a
moment that you acquit Joseph Harris * * * that's not what we
ask." He explained to the jury that an acquittal by reason of
insanity would not release defendant to the streets.
There is a procedure. It is in place. And
[the trial judge] will advise you.
For the reasons stated in connection with the Gerald charge, we find that the failure to charge on the non-unanimous theories for finding defendant guilty of non-capital murder was harmless because on this record there was no rational basis on which the jury could find an intent merely to cause serious bodily injury. This is not a case in which there was a possible accomplice charge or a possible conspirator charge. See State v. Brown, supra, 138 N.J. at 522 (holding that jury must be permitted to
find defendant guilty of murder as either principal or
accomplice). Defense counsel's closing argument (albeit with one
reference to whether one who intended death "would put [only one]
bullet in the person's neck") repeated the original theme:
"[N]ever lose sight of the issue which is, was Joseph Harris
insane at the time he committed this offense." Defense counsel's
final words to the jury asked for a "fair and impartial verdict"
on whether "Joseph Harris was insane or * * * not insane on the
night that this alleged offense occurred."
The issue is whether there was a rational basis on which the
jury could have concluded that defendant intended only serious
bodily injury when he shot his victim in the neck. The most
factually analogous case is State v. Coyle,
119 N.J. 194 (1990).
In that case, the defendant shot his victim in the back of the
head and received a Gerald reversal. But we emphasized that
there was a sufficient basis on which to find that the defendant
had intended to cause serious bodily injury rather than to kill.
Id. at 209. The defendant was trying to stop the victim from
attacking his girlfriend. At trial the defendant said, "All I
wanted to do was to hit him and disable him * * * ." Id. at 210.
Ron Ellison was not attacking anyone. The forensic evidence
was that Ron Ellison was shot in the back as he lay on the
ground. The forensic pathologist determined that there was a
"shored exit wound" on the victim's neck. Therefore, he
concluded that the victim was lying on the ground when the shot
was fired. Of course, that is not the only way in which the
wound could have been inflicted. But what purpose did the
gunshot have other than to kill? There was no rational basis on
which to conclude that defendant's intent was to commit only
serious bodily injury or that he was not practically certain that
death would result. The facts in this case are strikingly
different from State v. Mejia, supra, ___ N.J. ___, where the
defendant claims that he slipped while chasing the victim and
accidentally fired the gun. The Brown/Mejia issue was not raised
below. We are satisfied that in the circumstances of this case
the claimed error did not have the clear capacity to bring about
an unjust result and was harmless beyond a reasonable doubt.
State v. Crisantos (Arriagas),
102 N.J. 265, 273 (1986).
5. Did the trial court's instruction that
the jury not consider the evidence of mental
disease or defect until after it had rejected
the insanity defense create an unacceptable
risk that the jury would not consider whether
defendant's mental conditions prevented him
from forming the mental state required for
conviction of the offenses charged?
This issue arises, in part, from the tortuous manner in which federal constitutional doctrine treats the effect of mental disease or defect on criminal culpability and the presence of the so-called mens rea, or requisite intent to commit the offense. In State v. Breakiron, 108 N.J. 591, 611 (1987), we ruled that even though the statute then governing the diminished capacity defense imposed the burden of proof on a defendant to establish that defense, the burden imposed required a defendant to show only the existence of a mental disease or defect that is relevant
to the mental state of the offense, not that the disease or
defect would negate a criminal mental state. The State still had
to establish the required mens rea for the offense. Id. at 613.
That interpretation, we thought, would pass constitutional
muster because it imposed no burden on the defendant to disprove
an essential element of the crime charged. Subsequently, in
Humanik v. Beyer,
871 F.2d 432, 443, cert. denied,
493 U.S. 812,
110 S. Ct. 57,
107 L. Ed.2d 25 (1989), the Third Circuit ruled
that imposing any burden of proof on a defendant violated federal
due-process requirements by creating a "filter" that
impermissibly relieved the State of its obligation to prove
beyond a reasonable doubt every element of a crime. The
Legislature has since amended N.J.S.A. 2C:4-2, the diminished-capacity law. L. 1990, c. 63, § 1. As a result, courts no
longer charge that defendants assert a statutory affirmative
defense when they present evidence of mental disease or defect
relevant to the state of mind that the State must prove.
In contrast, federal constitutional doctrine holds that it
is permissible to impose on the defendant the burden of proving
an insanity defense that exculpates the defendant. Leland v.
Oregon,
343 U.S. 790,
72 S. Ct. 1002,
96 L. Ed. 1302 (1952). In
1979, the Legislature essentially reenacted the M'Naghten test of
criminal insanity, which looks to whether the accused suffers
from "such a defect of reason, from disease of the mind as not to
know the nature and quality of the act he was doing, or if he did
know it, that he did not know what he was doing was wrong."
N.J.S.A. 2C:4-1. Insanity is an affirmative defense that must be
proven by a preponderance of the evidence.
The psychiatric theory that distinguishes insanity from
mental disease or defect may be seen in the case of an actor who
knows that he is killing his mother but believes that the voice
of a god has directed him to do it. Such a person knows that he
is killing and intends to kill. In contrast, a person with a
diminished capacity of mind who drops a small child to the floor
might not know that the action was practically certain to cause
death or serious bodily injury resulting in death. Those are
difficult distinctions to present to a jury.
In this case, Harris presented the defense of insanity,
claiming that he was driven by "his own reality" to commit the
criminal act and that he did not know that what he was doing was
wrong. He had the burden of proving insanity as an affirmative
defense. If established, it would have served to exculpate him
entirely from the murder charge. Defendant also presented
evidence of mental disease or defect that could have negated the
mental state of knowledge or purpose. See State v. Galloway,
133 N.J. 631, 646 (1993) (stressing permissive definitions for mental
disease or defect and difficulty of showing that "an impenetrable
line exists between a mental disease affecting cognitive
facilities and one affecting impulse control or emotions").
Jurors are frequently told not to consider lesser-included
offenses until they first find the defendant not guilty of the
greater offense. State v. Coyle, supra, 119 N.J. at 223; see
People v. Boettcher,
505 N.E.2d 594 (N.Y. 1987) (holding that
juries should not be permitted to consider a lesser-included
offense until after they unanimously find defendant not guilty of
the greater offense). The premise is "that it is the duty of the
jury not to reach compromise verdicts based on sympathy for the
defendant or to appease holdouts, but to render a just verdict by
applying the facts it finds to the law it is charged." Id. at
597. The concept of sequential resolution of available verdicts
poses problems. We have therefore emphasized that in fashioning
sequential charges "care must be taken to avoid the
stratification of thought that would deter a jury from returning
the proper available verdict." State v. Zola,
112 N.J. 384, 406
(1988), cert. denied,
489 U.S. 1022,
109 S. Ct. 1146,
103 L. Ed.2d 205 (1989). Here, the question is whether there was such
stratification of the jury's deliberations to deter the jury from
returning the proper available verdict. We think not.
The trial court went to great lengths to fashion a fair and
correct charge in the face of the difficult task of assuring that
the jury not be confused by the constitutionally-driven burden
shifting between insanity (the defendant bears the burden) and
diminished capacity (the State bears the burden). The court
reviewed with counsel a written charge that it submitted to the
jury without exception. Defendant now complains of portions of
the oral charge.
The trial court prefaced its charge on insanity with the
following:
Now the defendant maintains that he is
not guilty of the crimes charged by reason of
insanity. If you find that the State has
failed to prove beyond a reasonable doubt any
essential element of the offense or the
defendant's participation in the offense, you
must find the defendant not guilty and you
need not consider the evidence as to the
defendant's insanity. If you find that the
State has proved beyond a reasonable doubt
each essential element of the offense and the
defendant's participation in the offense, you
must then consider the evidence as to the
defendant's insanity.
Defendant argues that at the same time the court should have
instructed the jury to consider evidence of diminished capacity
in determining whether the State had met its burden with respect
to the essential elements of the offenses charged.
Next, the trial court instructed the jury on the insanity
defense, noting that defendant had the burden to prove insanity
by a preponderance of the evidence. It also informed the jury,
however, that although defendant bore the burden with respect to
the insanity defense, the overall burden of proving the elements
of the offense charged remained always with the State.
It then instructed the jury on diminished capacity:
Now, if you determine that the defense
of insanity has not been proven by the
defendant, you will consider whether or not
the defendant suffers from * * * diminished
capacity. There has been evidence produced
that defendant suffers from mental disease or
defect. You must consider such evidence in
determining whether or not the State has
proved beyond a reasonable doubt that the
defendant acted purposely or knowingly.
* * *
* * * If the evidence of mental disease or defect or any other evidence or lack of evidence prevents the State from carrying its
burden of proving beyond a reasonable doubt
that the defendant acted purposely or
knowingly, then you must acquit the defendant
of the appropriate offense.
If, however you find that the State has
proved beyond a reasonable doubt that the
defendant acted purposely or knowingly,
together with all the other elements of the
offense, then you must convict the defendant
of the applicable offense. Again I would
reiterate you only consider diminished
capacity in the event that you find that the
defendant has not carried his burden as to
the defense of insanity.
Defendant objected to the last portion of the charge above.
He suggested that the charge was internally contradictory and
effected a subtle "burden switch." The trial court agreed to
reinstruct on diminished capacity without reference to insanity.
Defense counsel had no objection to the recharge.
On the second day of deliberations, the jury requested
reinstruction on the burglary, robbery, and theft counts.
Defense counsel requested that the court also reinstruct
regarding diminished capacity. The trial court declined to do so
because the jury had not requested reinstruction on diminished
capacity. It agreed, however, to remind the jury that it must
consider evidence of diminished capacity when determining whether
the State had met its burden of proof on all elements of the
charged offenses. At the conclusion of the robbery recharge, the
judge included this language:
This [diminished capacity], however,
would also be considered in conjunction with
the defendant's defense of insanity. In
other words, first you'll consider the
defense of insanity. If you find that that's
not appropriate, then you will go to the
defense of diminished capacity and make a
decision as to that.
Again, in considering the innocence or
guilt of the defendant on this charge as on
all of the charges, you have to consider
whether or not the defense of insanity or the
defense of diminished capacity is applicable.
Even if the State has proven each and every
element if you find the defense of diminished
capacity is applicable here, then the finding
would be not guilty.
Although trial counsel did not object, defendant now
complains that the trial judge improperly repeated the sequential
instruction and referred to diminished capacity as a "defense."
Defendant contends that the charge fostered the likelihood that
the jury simply did not conscientiously consider whether the
evidence of diminished capacity negated the mens rea element of
purposeful or knowing conduct. Defendant claims that the jury
was weary from its prior deliberations in which, without
considering the effect of mental disease or defect, it found that
the State had proven the elements of the crimes, and then found
that defendant had not produced a preponderance of the evidence
of insanity.
We disagree. The trial court's reinstruction on diminished
capacity made it perfectly clear to the jury that it must
consider diminished capacity evidence in relation to the State's
burden to prove the essential elements of the crime. The
fleeting references to the sequential order of deliberation and
the "defense" of diminished capacity, given with respect to the
recharge on burglary and robbery, were not likely to have
confused the jury. The jury had not requested reinstruction on
diminished capacity, and it had the court's correct instruction
provided to them in written form. The written instructions given
to the jury do not contain the errors defendant claims to be
present in the judge's oral instructions.
The sequential instructions do not contain the reversible
errors noted in State v. Erazo,
126 N.J. 112 (1991) and State v.
Coyle, supra,
119 N.J. 194. In Erazo, we said:
[T]he [trial] court erroneously instructed
the jury that it could find
passion/provocation manslaughter only if it
first acquitted defendant of knowing or
purposeful murder. This instruction is
backwards. Only a homicide that would
otherwise be a knowing or purposeful murder
may be reduced to manslaughter by the
presence of passion/provocation.
In this case, we do not have a backward charge. The court
did not tell the jury that it could ignore evidence of diminished
capacity in convicting defendant of murder. In essence, the jury
was told that it could ignore evidence of diminished capacity if
it acquitted defendant of murder by reason of insanity. In
addition, whatever error or confusion that existed was corrected
by the subsequent curative jury instruction. That later
instruction "undid much of the damage caused by the earlier
charge." State v. Heslop,
135 N.J. 318, 323 (1994).
These, then, were not contradictory and inconsistent charges
that "create a reasonable likelihood that a juror understood the
instructions in an unconstitutional manner." Francis v.
Franklin,,
471 U.S. 307, 323 n.8,
105 S. Ct. 1965, 1975 n.8,
85 L. Ed.2d 344, 359 n.8 (1985), quoted in State v. Moore, supra,
122 N.J. at 433; accord State v. Oglesby,
122 N.J. 522, 529-30
(1991) (holding that jury instruction improperly misled jury to
believe that defendant had burden of proving his diminished
capacity). In both Moore and Oglesby, there was no way to
determine whether the jury had followed the incorrect instruction
that the defendant prove mental disease or defect by a
preponderance of the evidence.
This jury was given the correct instructions. At worst,
they were not easy to follow. Defendant thus asserts that the
instruction falls short of the standard that the court give a
"plain and clear exposition of the issues" that explains to the
jury "in an understandable fashion its function in relation to
the legal issues involved." State v. Green,
86 N.J. 281, 287-88
(1981). It is no easy task to simplify the burden shifting that
federal doctrine requires. In this case, the court clarified its
charge when requested. In addition, it did what few courts do:
It gave the jury correct written instructions. The court
explained:
I have the greatest faith in the
intelligence of this jury. I think they're
an extremely competent jury, they have been
paying close attention throughout the trial.
My only concern is with the jury being able to recall the complexities of the charge dealing with insanity and/or diminished capacity. Quite frankly, I dare say that we could assemble a courtroom full of the finest legal minds, but those that have had absolutely no contact with and no knowledge
of the diminished capacity defense or
insanity defense and I can read them that
charge and send them out and have them
squabbling over what I said and what I meant
for days or weeks on end. I think it has
nothing to do with the intelligence of the
jury. I'm inclined to allow them to have a
copy of the charge as it relates to insanity
and diminished capacity. I see nothing that
would preclude it quite frankly.
When considered as a whole, especially in light of
subsequent instructions and the correct written instructions, the
charge correctly stated the law.
6. Should the court have charged the jury
that defendant's claim of right to recover
his invested funds was a defense to the
robbery charges?
N.J.S.A. 2C:20-2c(2) establishes "claim o