(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 March 3, 1998 -- Decided July 30, 1998
O'HERN, J., writing for a majority of the Court.
This is an appeal by defendant, Leslie Nelson, from a sentence of death following her conviction of
capital murder based on the entry of guilty pleas to the killing of two law-enforcement officers and the
aggravated assault of a third officer. The officers, Investigator John McLaughlin of the Camden County
Prosecutor's Office and Detective Richard Norcross and Officer John Norcross of the Haddon Heights
Police Department, were shot on April 20, 1995, while attempting to execute a search warrant for guns
defendant kept in her room in her parents' home. McLaughlin and Officer Norcross were killed and
Detective Norcross was severely injured.
The morning of the shootings, McLaughlin and an investigator from the State's Division of Youth
and Family Services (DYFS) had gone to defendant's home to investigate a complaint that defendant had
fondled her niece and had threatened her with a shotgun. Defendant reluctantly let the men into the home
and became very upset when she heard of the sexual accusation. The investigators learned defendant had a
knife and that she kept the shotgun locked in her upstairs bedroom closet. She refused to let them search
her bedroom, but her mother permitted them to search the rest of the house. No evidence of any crime was
found. After McLaughlin asked defendant again about her knife, she let the men into her bedroom, where
they saw her four-inch lock-blade knife and a number of bullets.In response to defendant's question about
plans for further investigation, the DYFS investigator said his part was over, but McLaughlin told her he
would have to discuss the matter with his superiors. Defendant replied that she would kill herself if she had
to go to jail.
Detective Norcross, who had been present outside the house during the visit, decided a search
warrant for the weapons should be obtained. Armed with the warrant, McLaughlin, Detective Norcross, and
three other police officers, including Officer John Norcross, the brother of Detective Norcross, returned to
the Nelson residence that afternoon. Defendant's mother let McLaughlin and Detective Norcross in and the
other officers remained outside. When she heard that the officers were there to ask more questions and to
search her room, defendant, who was upstairs, began to run and entered her room. McLaughlin was fatally
shot by defendant as he ran after her toward her room. Defendant also shot and wounded Detective
Norcross as he pursued her, but he managed to escape from the house. Officer Norcross was killed ten or
fifteen minutes later when struck by gunfire from defendant, who was shooting at the officers from an
upstairs window.
Because she pled guilty to the capital murder and aggravated assault charges against her, defendant
proceeded to trial only as to the penalty for these convictions. The three mitigating factors defendant
asserted to counter the aggravating factors claimed by the State in seeking to obtain a death sentence
revolved around defendant's mental illness and her sexual identity. (Defendant had been diagnosed as
severely depressed and as having schizoid and antisocial tendencies. She had been born male but had had
sex-change surgery in 1992.) Defendant also asserted as the basis for the “catch-all” mitigating factor that
the officers who came to her house had been inadequately trained, prepared and supported for dealing with
a disturbed person, especially one known to be armed.
With regard to the killing of Officer Norcross, the jury was unanimous in finding the existence of the
three aggravating factors advanced by the State and in rejecting defendant's “emotional disturbance” and
“impaired capacity” mitigating factors. The jury rejected the “catch-all” factor by a nine-to-three vote. The
jury declared unanimously that the aggravating factors, together and individually, outweighed the mitigating
factors. For the McLaughlin murder, however, the jury found three of four aggravating factors and the
“emotional disturbance” mitigating factor. The jury, by split votes, rejected the other mitigating factors and
was unable to agree unanimously that the aggravating factors outweighed the mitigating factors.
In accordance with the results of the jury's weighing of the aggravating and mitigating factors, the
trial court sentenced defendant to death for the murder of Officer Norcross and to life in prison with thirty
years of parole ineligibility for the murder of Investigator McLaughlin. The court imposed a consecutive ten-year term with five years of parole ineligibility for the second-degree assault of Detective Norcross.
After the sentencing, defendant learned that during the penalty-phase trial, Detective Norcross had
filed a civil lawsuit against defendant, the Borough of Haddon Heights, and the Camden County
Prosecutor's Office, alleging, among other things, that he was injured by defendant because of " improper
hiring, screening, training, and supervision " of the Haddon Heights police officers. A notice of claim against
the public entities had been served in July 1995. Defendant asserted the State's failure to reveal this
information to her during trial as a basis for a motion for a new trial. The trial court denied the motion.
Defendant then appealed her death sentence to the Supreme Court as of right.
HELD: Because of the State's failure to reveal to defendant favorable evidence material to the jury's
determination whether defendant deserved the death penalty, defendant's sentence of death is vacated and
the matter is remanded for a new sentencing trial on the murder of Officer John Norcross.
1. Evidence that Detective Norcross, the chief prosecution witness and the brother of a slain officer, had
filed a lawsuit based on the very theory asserted by defendant as the basis for the “catch-all” mitigating
factor would have been favorable to the defense and would have profoundly altered the jury's perspective on
the case. It is at least reasonably probable that an additional juror or jurors would have found the existence
of one or more of the mitigating factors and that greater weight would have been given to the mitigating
factors, with the result that the jury would not have been convinced beyond a reasonable doubt that the
aggravating factors outweighed the mitigating ones. (pp. 10-16)
2. The trial court's explanation to the jury that the likely non-death sentences for the murders would be life
in prison with a sixty-year period of parole ineligibility comported with Loftin's directive in that regard and
the instruction that the jury should not consider that likelihood as a basis for a decision to impose the death
penalty was similar to the limiting instructions in Martini I and Bey III. In future cases, when instructing the
jury regarding sentencing consequences, the trial court should emphasize that the jury should not find a
capital defendant more worthy of a life sentence because of the lengthier term of confinement. (pp. 16-22)
3. The State's use of defendant's expressions of her views on the Second Amendment and the Founders'
concern about future “bloody revolution” violated defendant's First Amendment rights. Because of the
retrial required by the Brady violation, the Court need not consider whether this constitutional violation, to
which defense counsel did not object, constituted plain error. On retrial, if the State seeks to have such
evidence admitted, the State first must prove that defendant desired or advocated violent attacks on
government. (pp. 22-28)
4. The other trial errors asserted by defendant do not provide a basis for retrial. (pp. 28-34)
The sentence of death is VACATED and the matter is REMANDED to the Law Division for a new
penalty trial.
JUSTICE HANDLER, concurring in part and dissenting in part, concurs with the Court's opinion
that the Brady due process violation requires a new penalty trial (Part II), but dissents from Part III because
of his view that a capital jury should be instructed to consider the other sentences a defendant could receive
as a mitigating factor. He believes also that the court's informing the jury it should not consider the
practical consequences of defendant's other sentences was reversible error. Finally, Justice Handler would
hold the State's cross-examination of defendant's psychiatrist regarding her political beliefs to be reversible
error and so dissents from Part IV of the opinion.
JUSTICE COLEMAN, concurring in part and dissenting in part, in which JUSTICE GARIBALDI
joins,
agrees in all regards with the Court's opinion except for the conclusion that there was a Brady violation
requiring a retrial. He disagrees that evidence of the filing of the Norcross suit was “material” to the jury's
determination, being unpersuaded that the jury's decision whether to impose the death penalty would, to a
reasonable probability, have been affected by knowledge of the complaint.
JUSTICES POLLOCK and STEIN join in JUSTICE O'HERN's opinion. JUSTICE HANDLER
filed a separate opinion, concurring in part and dissenting in part. JUSTICE COLEMAN filed a separate
opinion, concurring in part and dissenting in part, in which JUSTICE GARIBALDI joins. CHIEF
JUSTICE PORITZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
151 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LESLIE A NELSON,
a/k/a GLEN NELSON,
Defendant-Appellant.
Argued March 3, 1998 -- Decided July 30, 1998
On appeal from the Superior Court, Law
Division, Camden County.
Stephen W. Kirsch and Michael B. Jones,
Assistant Deputy Public Defenders, argued the
cause for appellant (Ivelisse Torres, Public
Defender, attorney).
Deborah C. Bartolomey, Deputy Attorney
General, argued the cause for respondent
(Peter Verniero, Attorney General of New
Jersey, attorney).
The opinion of the Court was delivered by
O'HERN, J.
This is a capital murder case. There must be a new
sentencing because the State withheld evidence favorable to the
defense and material to the jury's determination whether
defendant deserved the death penalty.
Defendant Leslie Nelson has pled guilty to the killing of two police officers, Investigator John McLaughlin and Officer John Norcross, and to the second-degree aggravated assault of a third officer, Detective Richard Norcross, the brother of Officer John Norcross. The killings and the assault occurred on April 20, 1995, during a shootout with the officers, who had come to defendant's home with a search warrant.
The standoff was central to one of the mitigating factors in defendant's case. Investigator McLaughlin, who worked for the Camden County Prosecutor's Office, and Investigator Carmelo Garcia, of the Division of Youth and Family Services, went to defendant's home on the morning of April 20 to respond to a complaint that defendant had fondled her niece and threatened her niece with a shotgun. Haddon Heights Police Detectives Robert Griffith and Richard Norcross accompanied the two investigators.
Defendant lived with her elderly parents in Haddon Heights. Defendant's van was parked outside of the home when the police arrived. When no one answered the door, the officers had their dispatcher call the home. Defendant answered, told the dispatcher she would not open her door, then hung up. The dispatcher called again and persuaded defendant to open the door by telling her the officers were investigating a problem with the van.
After opening her door, defendant was reluctant to cooperate with the officers. At first she insisted on speaking only through the screen door. After a time, defendant agreed to allow Investigator McLaughlin inside the home. When McLaughlin would not enter alone, defendant agreed to let Garcia inside as well. The other officers remained outside.
Once inside, McLaughlin and Garcia spoke to defendant for approximately ninety minutes in her living room. The conversation was generally calm. Defendant, however, became upset and raised her voice when the officers told her that she had been accused of committing a sexual crime. In the course of the discussion the officers learned that defendant had a knife and a shotgun and that she kept the shotgun locked in her bedroom closet. Defendant would not allow the officers to search her bedroom, although her mother allowed them to search the rest of the house. The search of the house, including the part of defendant's bedroom the officers could see through defendant's partly opened bedroom door, did not reveal any evidence of crime. When the officers went downstairs, Investigator McLaughlin went outside. While McLaughlin was outside, Investigator Garcia noticed that defendant was very upset. She paced from window to window to see what the police were doing outside. Garcia described defendant's behavior at this stage as "paranoid." McLaughlin returned and asked defendant about her knife. Defendant at this point agreed to allow the officers to see her bedroom. In the room the officers saw a number of bullets and a four-inch lock-blade knife.
As the officers left the house, defendant asked about their plans for further investigation. Garcia told defendant that his part of the investigation was over, but McLaughlin said that he would have to discuss the matter with his superiors. Defendant told them that she would kill herself if she had to go to jail.
Norcross decided to obtain a warrant to search defendant's bedroom for weapons. Believing that "things might get hairy" when they served the warrant, the officers asked for a "no-knock" provision in the warrant. A municipal court judge issued the "no-knock" warrant. Upon further consideration, the officers decided not to use the "no-knock" provision. They believed that the relationship that McLaughlin developed with defendant would make the search go smoothly.
At about 2:00 p.m. that same day, six officers, including McLaughlin and Detective Richard Norcross, went to defendant's home to conduct the search. McLaughlin and Norcross went to the door, while the other officers remained outside. According to the testimony of Detective Norcross, defendant's mother answered the door and called upstairs to defendant that McLaughlin had returned. Defendant called back, "What the f--- does he want?" McLaughlin, in a "soothing tone," told defendant that he needed to ask some more questions. McLaughlin attempted to coax defendant down the stairs, speaking to her from the foot of the stairway as defendant stood at the top. Defendant asked if the officers had a warrant for her. McLaughlin explained that they did not have an arrest warrant, but they did have a warrant to search her bedroom. Just then Detective Norcross heard defendant begin to run, and he saw McLaughlin reach for his firearm and run up the stairs after defendant. When McLaughlin reached the top of the stairs and turned toward defendant's bedroom, defendant fired a rifle at him. McLaughlin fell, fatally wounded.
Detective Norcross continued up the stairs after Investigator McLaughlin fell. When he reached the top, defendant shot him, hitting him in the chest, hand, arm and leg. Norcross fell and slid back down the stairs. As he slid, defendant leaned out over the railing and shot Norcross once more in the leg. She then ran to the top of the steps and began to follow Norcross down. Defendant's mother called to her to stop, and she stepped between defendant and the detective. Norcross struggled to his feet and left the house through a side door.
Defendant went to a second-floor window and began firing at the officers outside. Ten or fifteen minutes after the gunfire began, defendant fatally shot Officer John Norcross, who was standing across the street from defendant's home.
The Haddon Heights dispatcher called defendant's home soon after John Norcross was shot. Defendant told the dispatcher that she did not want police officers searching her room or taking her to jail. After a long negotiation conducted by telephone, defendant eventually surrendered.
A Camden County Grand Jury indicted defendant on two counts of knowing and purposeful murder by her own conduct, eight counts of first-degree attempted murder, third-degree unlawful possession of an assault firearm, and second-degree possession of a firearm for an unlawful purpose. Defendant pled guilty to the two capital murder counts and to second-degree aggravated assault of Detective Richard Norcross and was convicted of those charges on the basis of her plea.
At the sentencing trial, the State asserted the following aggravating factors in connection with the murder of Investigator McLaughlin: 1) the murders created a grave risk of death to Detective Norcross (the "grave risk" factor); 2) each murder was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement for the unlawful possession of a firearm (the "escape detection" factor); 3) each murder was committed while defendant was engaged in the murder of the other officer (the "other murder" factor); and 4) each murder occurred while the officers were engaged in the performance of their official duties (the "public servant" factor). For the murder of John Norcross, the prosecution submitted only the escape detection, other murder, and public servant factors. It did not submit the grave risk factor.
Defendant countered with three mitigating factors for both murders: 1) she was "under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution" (the "emotional disturbance" factor); 2) her "capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of law was significantly impaired as the result of a mental disease or defect, but not to a degree sufficient to constitute a defense to prosecution" (the "impaired capacity" factor); and 3) "any other factor that the jury might find relevant to her prospects of rehabilitation or to the circumstances of the offenses, including [her] contention that the . . . officers [who came to her house] had inadequate training, preparation, and support from the Camden County Prosecutor's Office and from the Haddon Heights Police Department for dealing with a disturbed person, particularly one known to possess a firearm" (the "catch-all" factor).
Defendant's mitigating evidence centered on the mental illness she suffered as a result of years of painful doubt about her sexual identity. Defendant began life as a male named Glen Nelson. In 1986, defendant consulted a Colorado doctor about sexual reassignment. The doctor advised him to begin the sex-change process by taking estrogen and progesterone. Following a nineteen-day commitment to a mental hospital in 1988, defendant was diagnosed with severe depression and with schizoid and antisocial tendencies.
In July 1989, defendant underwent psychological testing to determine if he would be a good candidate for sex-change surgery. The test indicated that defendant may have suffered from a depressive disorder, a dysthymic disorder, a major affect disorder or paranoia. He was not approved for the sex-change operation, but he began taking estrogen and progesterone. Defendant had breast augmentation surgery in May 1991, changed his name to Leslie, and began to live and dress as a woman. In September 1991, one of defendant's doctors described defendant as having "severe psychological problems." Still, defendant's doctors approved the sexual reassignment, in part because they feared defendant would commit suicide if he did not have the surgery. Defendant had the operation in May 1992.
After the sex-change operation, defendant's depression persisted. She developed a fixation or transference on a Browning handgun that she had bought, along with a semi-automatic assault rifle, in early 1989. As defendant's depression worsened, her obsession with guns deepened. Her bedroom, where she would spend hours polishing the guns, took on a surreal significance. A defense psychiatrist testified that her deteriorating mental condition caused an abnormal reaction to the threat of the police entering her bedroom.
With respect to the murder of Officer John Norcross, the jury unanimously found the "escape detection," "other murder," and "public servant" aggravating factors. It unanimously rejected the "emotional disturbance" and "impaired capacity" mitigating factors, and it voted nine to three to reject the "catch-all" factor. The jurors were unanimous in declaring, beyond a reasonable doubt, that the collection of aggravating factors, and each aggravating factor in isolation, outweighed the mitigating factors.
In connection with the murder of Investigator McLaughlin, the jury unanimously found three of the four proffered aggravating factors: the "escape detection" factor, the "other murder" factor, and the "public servant" factor. Only ten of the twelve jurors found the "grave risk" factor. The only mitigating factor the jury was unanimous in finding was the "emotional disturbance" factor. The jurors voted ten to two in rejecting the "impaired capacity" factor and eight to four in rejecting the "catch-all" factor. The jurors could not unanimously agree that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt.
The trial court sentenced defendant to death for the murder of Officer John Norcross and to life in prison with thirty years of parole ineligibility for the murder of Investigator McLaughlin. The court further sentenced defendant to a consecutive term of ten years in prison with a five-year parole bar for the second-degree aggravated assault of Detective Richard Norcross.
After the trial, it was revealed that Detective Richard Norcross, who had followed McLaughlin up the stairs and who was injured in the siege, had filed a civil suit against the county and municipal authorities. His tort claim alleged that the Borough of Haddon Heights and the Camden County Prosecutor's Office acted in a "palpably unreasonable" manner in "failing to provide proper training and instruction to ensure the safety of the Haddon Heights Police Officers" who served the search warrant on defendant. Norcross claimed that the officers' conduct had caused Leslie Nelson to react as she did and injure him. The complaint was served on the County Prosecutor's Office on May 8, 1997, which was the seventh day of the ten-day sentencing phase. Two years before serving the complaint, on July 14, 1995, Detective Norcross sent notice of his claims to the prosecutor's office, in accordance with the Tort Claims Act, N.J.S.A. 59:8-3 to -11. The detective's tort claims notice alleged "improper hiring, screening, training and supervision." The prosecutor's office did not disclose this information to the defendant or defense counsel. Defendant called attention to the State's nondisclosure of the Norcross complaint in a post-sentencing motion for a new trial. The trial court denied that motion on July 22, 1997.
Defendant now appeals her death sentence under Rule 2:2-1(a). She has not challenged the convictions, which were based on her guilty pleas.
In every criminal case the prosecution must disclose to the defendant all evidence that is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed.2d 215, 218 (1963). There are three elements of a Brady violation. The evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed.2d 706, 713 (1972).
Evidence of the Norcross complaint would have been favorable to defendant in the penalty phase. The allegation that law enforcement personnel had been inadequately trained lent direct support to defendant's catch-all mitigating factor. Thus, the first Brady element is satisfied.
Whether the prosecution should be understood to have suppressed evidence of the Norcross complaint, satisfying the second Brady element, depends on whether the prosecution actually or constructively possessed that evidence during the penalty phase. The Brady disclosure rule applies only to information of which the prosecution is actually or constructively aware. See, e.g., Calley v. Calloway, 519 F.2d 184, 223 (5th Cir. 1975) (en banc), cert. denied sub nom. Calley v. Hoffmann, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed.2d 760 (1976). We accept that the trial prosecutor himself did not have personal knowledge of the Norcross complaint. The question is whether knowledge of the complaint should be imputed to the prosecution.
In Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed.2d 490 (1995), the Supreme Court reversed the denial of habeas corpus relief to a Louisiana defendant convicted of capital murder. The prosecution in that case failed to disclose several statements the police had taken that, according to the Court, "would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense." Id. at 441, 115 S. Ct. at 1569, 131 L. Ed. 2d at 510. The trial prosecutor was not aware of those statements prior to trial, but the lack of actual awareness did not relieve the State of its Brady obligations. Justice Souter reasoned for the Court that "the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf, including the police." Id. at 437, 115 S. Ct. at 1567, 131 L. Ed. 2d at 508. He defined the contours of that duty:
[N]o one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that "procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it." . . . Since, then, the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.
[Id. at 438, 115 S. Ct. at 1568, 131 L. Ed.
2d at 508-09 (quoting Giglio v. United
States,
405 U.S. 150, 154,
92 S. Ct. 763,
766,
31 L. Ed.2d 104, 109 (1972)).]
In Giglio, the Supreme Court reversed a conviction for the
passing of forged money orders because the Government did not
disclose that its key witness testified in exchange for a promise
that he would not be prosecuted. The promise was made by one of
the trial prosecutor's colleagues in the United States Attorney's
Office. As in Kyles and the present case, the trial prosecutor
was unaware of the promise. The Court held the prosecution was
constructively aware of the promise to the witness. Chief
Justice Burger wrote, "the prosecutor's office is an entity and
as such it is the spokesman for the Government. A promise made
by one attorney must be attributed, for these purposes, to the
Government." Giglio, supra, 405 U.S. at 154, 92 S. Ct. at 766,
31 L. Ed.
2d at 109 (quoting Restatement (Second) of Agency §
272); see also State v. Carter,
91 N.J. 86, 111 (1982) ("The
prosecutor is charged with knowledge of evidence in his file,
`even if he has actually overlooked it.'") (quoting United States
v. Agurs,
427 U.S. 97, 103,
96 S. Ct. 2392, 2397,
49 L. Ed.2d 342, 349 (1976)).
The Tenth Circuit has stated that "the `prosecution' for
Brady purposes encompasses not only the individual prosecutor
handling the case, but also extends to the prosecutor's entire
office . . . , as well as law enforcement personnel and other
arms of the state involved in investigative aspects of a
particular criminal venture." Smith v. Secretary of N.M. Dep't
of Corrections,
50 F.3d 801, 824 (citation and footnote omitted),
cert. denied sub nom. Mondragon v. Smith,
516 U.S. 905,
116 S.
Ct. 272,
133 L. Ed.2d 193 (1995).
In this case, the complaint was filed by one of the "law
enforcement personnel" involved in the investigation of
defendant's "particular criminal venture," and it was brought
against the "prosecutor's entire office." Smith, supra, 50 F.
3d
at 824. In fact, after receiving Richard Norcross' tort claim
notice in July 1995, the Camden County Prosecutor notified County
Counsel, in a letter dated August 7, 1995, that the Prosecutor
would discuss the complaint with the assistant prosecutor
handling defendant's trial. It appears that discussion never
took place. Under either Kyles or Giglio, we must impute
awareness of the Norcross complaint to the trial prosecutor and
hold that the evidence was suppressed for Brady purposes.
The materiality element of the Brady rule is also satisfied.
Undisclosed evidence is material for Brady purposes if there is a
"reasonable probability" that a different result would have
obtained had the evidence been disclosed. United States v.
Bagley,
473 U.S. 667, 682,
105 S. Ct. 3375, 3383,
87 L. Ed.2d 481, 494 (1985). "A `reasonable probability' is a probability
sufficient to undermine confidence in the outcome." Ibid. For
these purposes, the "outcome" of the trial may refer to either
the determination of guilt or the imposition of punishment.
Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed.
2d
at 218. For an appellant, the materiality standard is not
difficult to achieve. "[A] showing of materiality does not
require demonstration by a preponderance that disclosure of the
suppressed evidence would have resulted ultimately in the
defendant's acquittal." Kyles v. Whitley, supra, 514 U.S. at
434, 115 S. Ct. at 1565, 131 L. Ed.
2d at 506. Rather, the
question is whether in the absence of the undisclosed evidence
the defendant received a fair trial, "understood as a trial
resulting in a verdict worthy of confidence." Id. at 434, 115 S.
Ct. at 1566, 131 L. Ed.
2d at 506.
In order to disregard the suppression of favorable evidence,
we would have to be confident that the jury would have chosen the
death penalty over a term of imprisonment had the State made
defendant aware of Norcross' complaint. It is not for us to
assess the merits of Richard Norcross' complaint or to judge
thereby the conduct of the police. It suffices to observe that
the allegations would have profoundly altered the jury's
perspective of the case. Norcross was the State's key witness to
defendant's conduct during the standoff. He testified about her
vicious assault on him as well as the murder of Investigator
McLaughlin. Had the jury been aware that this crucial witness,
the brother of one of the dead police officers, agreed with
defendant that inadequate police training had sparked defendant's
violent reaction, it is at least reasonably probable that an
additional juror or jurors would have found the existence of one
or more of defendant's mitigating factors. Not only did the
prosecution dispute the existence of the mitigating factor
concerning the inadequate training of the police officers, it
excoriated the defendant for daring to question the conduct of
deceased police officers. (Defense counsel referred to the
prosecutor's discussion on this point as the "pinnacle" of his
summation.) It is also reasonably probable that the jury would
have given greater weight to the mitigating factor(s) thus
substantiated and would not have been convinced beyond a
reasonable doubt that the aggravating circumstances outweighed
the mitigating ones. The Brady violation requires a retrial of
defendant's sentence.
Because the non-disclosure of the Norcross complaint
requires us to order a new sentencing trial, we address only
briefly the other issues in the case.
Did the trial court erroneously instruct the jury to disregard, for capital-sentencing purposes, the fact that defendant could be non-capitally sentenced to sixty years' imprisonment for the two murders?
Defendant asserts that the court did not accurately inform
the jury that it could legitimately consider the cumulative
consequence of two non-death verdicts. The court told the jury
that for each non-death verdict that it returned, defendant would
be sentenced to a term of imprisonment of thirty years to life
and would spend at least thirty years in prison. The court added
that if it were imposing sentence on both murder charges, there
was a reasonable likelihood that the sentences would run
consecutively, creating a minimum prison term of sixty years.
However, the court admonished the jury not to consider in its
deliberations the likelihood that the sentences would run
consecutively.
The consequences of the jury's decision whether to vote in
favor of the death penalty were explained as follows:
If the answer is yes, the defendant
shall be sentenced to death. If the answer
is no or the jury is unable to reach a
unanimous conclusion after due deliberation,
I shall sentence the defendant to a term of
imprisonment of between thirty years and life
which the defendant shall serve at least
thirty years before being considered for
parole. If separate sentences are to be
imposed by me, the reasonable likelihood is
they will run consecutive to one another so
the defendant will have to serve at least
sixty years before being considered for
parole . . . .
Please note that throughout the
explanation of the verdict sheet and
otherwise during the course of the charge at
the request of the parties I have instructed
you and told you that if I do not impose -
if you do not impose -- if the result of your
decision is the defendant does not get the
death penalty, you do not impose the death
penalty and the decision is one of
incarceration, the reasonable likelihood is
that I will impose or give consecutive
sentences, which mean[s] that the defendant
would have to serve sixty years before being
considered eligible for parole. Now,
remember, that's not an aggravating factor,
it's not a mitigating factor, [I] went over
all the aggravating factors, I've gone
through all the mitigating factors.
Therefore, you shall not consider the
likelihood, that likelihood as a basis for
your decision to impose the death penalty or
a sentence of imprisonment because simply put
it's not an aggravating factor and simply put
it's not a mitigating factor, but I do bring
it to your attention because you should be
aware of all the potential consequences of
your decision. That's why I bring it to your
attention.
The defendant relies upon the general proposition codified
in N.J.S.A. 2C:11-3f, that "[p]rior to the jury's sentencing
deliberations, the trial court shall inform the jury of the
sentences which may be imposed pursuant to subsection b. of this
section on the defendant if the defendant is not sentenced to
death."
Defendant's argument is that the consequence of a non-death
verdict in this case would have been two sentences of thirty
years to life that would probably run consecutively. Therefore,
the jury should have been asked to weigh death against the
likelihood that a non-death verdict on both murder counts would
result in a sentence of life in prison without the possibility of
parole for sixty years. (Because defendant was thirty-seven
years of age at the time of the crime, this effectively meant
that she would die in prison.) Instead the jury was told to
weigh death against a prison term of thirty years to life, and
was, in effect, told to disregard the likelihood that the
sentences would run consecutively.
A penalty-phase jury in a capital case, prior to the start
of its deliberations, must be informed of the sentencing
consequences of its decision. N.J.S.A. 2C:11-3f. In State v.
Ramseur,
106 N.J. 123 (1987), the Court stated, "To hide from the
jury the full range of its sentencing options, thus permitting
its decision to be based on uninformed and possibly inaccurate
speculation, is to mock the goals of rationality and consistency
required by modern death penalty jurisprudence." Id. at 311.
In State v. Bey,
129 N.J. 557 (1992) (Bey III), the Court
considered whether to inform a penalty-phase jury of the length
of a sentence the defendant is serving for a prior crime, there a
prior murder that was an aggravating factor in the capital case.
The Court held that the jury should be told (1) the amount of
time being served under the prior sentence, (2) whether the prior
sentence is final or up on appeal, (3) that the decision of
whether a non-capital sentence in the present case will be
concurrent or consecutive with respect to the sentence already
being served is solely up to the court, and (4) not to consider
the prior sentence in its decision to impose life or death. Id.
at 603. The Bey III Court explained that jurors should not be
permitted to consider prior sentences as aggravating or
mitigating factors. It reasoned as follows:
The focus of the Capital Punishment Act is on
individualized sentencing, requiring that the
jury determine whether death is the
appropriate punishment based on the
circumstances of the offense and the
aggravating and mitigating factors. To
permit consideration of pending sentences for
prior crimes might lead to the incongruous
result that first-offenders would be more
likely to be sentenced to death than would
repeat-offenders. The proper balance is
struck by informing a jury of pending
sentences on request, but instructing the
jury to base its life or death decision only
on the aggravating and mitigating factors
presented by the evidence.
In State v. Martini,
131 N.J. 176 (1993) (Martini I), cert.
denied, ___ U.S. ___,
117 S. Ct. 699,
136 L. Ed.2d 621 (1997),
the Court adopted a prospective rule that required analogous
instructions on sentences to be imposed for non-capital counts
prosecuted in the same case as the capital count being considered
by the jury. Id. at 313. The Court held that
in the future when defense counsel or the
jury requests instructions on the potential
sentences a defendant will receive for
convictions arising from the same trial as
his capital-murder conviction, such
information should be provided by the trial
court. The jurors should be informed of the
sentencing options available to the judge,
and that the determination of sentence had
not yet been made. In addition, the trial
court should explain that the sentence may or
may not run consecutively to that for murder,
but that the determination is left to the
court. Finally, the court should inform the
jury that defendant's possible sentence for
the other convictions should not influence
its determination regarding the
appropriateness of a death sentence on the
murder count.
State v. Loftin,
146 N.J. 295 (1996), added the further
requirement that when courts know that it is likely that non-capital sentences will be consecutive, the jury should have that
information. The Court held that "in future cases, if the court,
based on the evidence presented[,] believes that there is a
realistic likelihood that it will impose a sentence to be served
consecutively to any of defendant's prior sentences, in the event
the jury does not return a death sentence, the jury should be so
informed." Id. at 372.
The trial court complied with the mandate of Loftin by
informing the jury on multiple occasions that the likely non-death sentences for the murder would be life in prison with a
sixty-year period of parole ineligibility. Then, in a manner
analogous to the limiting instructions of Martini I and Bey III,
the court instructed the jury not to consider that likelihood as
a basis "for your decision to impose the death penalty."
In his summation, defense counsel had urged that the most
appropriate sentence was life in prison. In the defense view,
the court's instruction undercut the defense's summation and told
the jurors to ignore the reality that defendant would have died
in jail before even being considered for parole. The defense
further asserts that the court's instruction wrongly conveyed to
the jury that its choice was between death and parole eligibility
in thirty years. The jury was not simply instructed to disregard
the sixty years of parole ineligibility. Instead, the jury was
instructed in effect to treat the case as if the period of parole
ineligibility would be thirty years.
We understand the logic of the defendant's argument but
disagree with its reality. It is inescapable to us that the jury
knew that it was choosing between death and a life in prison
without the possibility of parole. The verdict sheet clearly
referred to sixty years as the non-death sentence that the court
was likely to impose.
At the same time, we should clarify the meaning of our
rulings. When a jury is choosing between life and death, it
should not be misled into treating the case as one that it is
not. The jury should not be told that in choosing between life
and death it may not consider the fact that a forty-year-old
defendant is likely to spend the next sixty years in prison if
its verdict is life. Such an instruction would conflict with our
Ramseur holding and impermissibly "hide from the jury the full
range of its sentencing options." Ramseur, supra, 106 N.J. at
311.
In future cases, courts should explain to jurors what we
mean when we say that the length of the possible sentences other
than death should not influence the jury's determination
concerning the appropriateness of a death sentence on a murder
count. Something along these lines (as refined by the Trial
Judges' Committee on Capital Causes) would suffice:
What I intend to convey when I tell you that
your determination of the appropriateness of
a death sentence should not be influenced by
the sentences that I may impose on other
convictions, or in the event you determine
that death is not an appropriate punishment
for this defendant, is simply that a capital
defendant is not more worthy of life because
he or she may face a longer confinement in
prison than another. A defendant's
worthiness for life should depend only on the
circumstances of the offense and the
aggravating and mitigating factors that have
been presented. I have informed you of the
potential non-capital sentences only so that
you may be fully informed of the effect of
your decision.
Did the prosecution violate defendant's
constitutional rights by alluding to
defendant's views of the Second Amendment and
a "bloody revolution"?
Defendant contends that the prosecutor violated her due
process and free speech rights by using her views of the Second
Amendment and "bloody revolution" to suggest to the jury that
defendant had pursued a personal goal of killing police officers.
Because the evidence, as presented, was not probative of any
disputed issue in the sentencing phase, we agree.
In the penalty phase, defendant called Doctor Kenneth Weiss
as an expert in forensic psychiatry. Doctor Weiss had examined
defendant on several occasions and had evaluated her mental
condition. During the State's cross-examination, the following
exchange took place:
Q. Doctor, on October 10th, 1995, Leslie Nelson
told you, and I quote, I'm just a person who loves guns
and thinks the Second Amendment is sacrosanct, correct?
A. Yes.
Q. She also told you in that same interview, and
this is another quote, the Founding Fathers had in mind
that there might be another bloody revolution.
A. Yes. She said that to me.
Q. And she talked to you a number of times about
the Constitution and her love of guns, correct?
A. Oh, she certainly talked about her love of
guns on a number of occasions. I was more interested,
of course, in her attachment to them than I am about
her thoughts on the Constitution.
Q. Well, Doctor, if the Founding Fathers as Ms.
Nelson interpreted it, her right, and if there were
going to be another bloody revolution and if Leslie
Nelson were to be a revolutionary, against whom would
she be focusing her violence?
A. I really don't know, Mr. Lynch [the
prosecutor]. My imagination didn't go that far.
Q. Well, if you're in revolt, sir, you're in
revolt against the government, against the authorities,
correct?
A. I suppose that would be so.
Q. Well, you don't just suppose that, you know
that, sir, if you're talking about revolution, you're
talking about revolution against a government, correct,
isn't that what revolution means?
A. I believe that's right.
Q. Okay. So the persons in government that
represent the interests of government among other
people are police officers; isn't that right?
A. That could be interpreted certainly as an
authority figure representing the structure of society.
The State pursued this theme in its closing argument.
Downplaying the evidence relating to defendant's failures in
life, the prosecutor said, "Well, here, here on the twentieth of
April, 1995, she found something she could be successful at. She
found success because she clearly wanted to kill police officers
and she did it. She was successful and she did it. She was
successful and killed them."
No one may be punished in this country for merely espousing
particular political beliefs or for associating with others who
share those beliefs. U.S. Const. amends. I and XIV. Evidence
relating to a criminal defendant's beliefs or associations is
admissible at trial if it is relevant to material issues or
witness credibility; United States v. Abel,
469 U.S. 45, 52-53,
105 S. Ct. 468, 469,
83 L. Ed.2d 450, 457-58 (1984); but if
evidence of those beliefs does not make the truth of a material
proposition any more or less probable, the admission of that
evidence is unconstitutional. Dawson v. Delaware,
503 U.S. 159,
168,
112 S. Ct. 1093, 1099,
117 L. Ed.2d 309, 319 (1992).
The facts of this case are similar to those presented in
Dawson. There, the submission of evidence of a defendant's
membership in the Aryan Brotherhood was held to violate free
speech and fair trial rights. Ibid. A jury convicted David
Dawson of first-degree murder, which made him eligible for
Delaware's death penalty. During the penalty phase, the State
sought to introduce evidence relating to Dawson's membership in
the Aryan Brotherhood. The parties stipulated that "[t]he Aryan
Brotherhood refers to a white racist prison gang that began in
the 1960s in California in response to other gangs of racial
minorities. Separate gangs calling themselves the Aryan
Brotherhood now exist in many state prisons including Delaware."
Id. at 162, 112 S. Ct. at 1096, 117 L. Ed.
2d at 315.
The Supreme Court acknowledged ways in which evidence
relating to the prison gang might have been relevant and thus
permissible, but it concluded that the stipulated facts
concerning the gang were too narrow to have any relevance to
Dawson's sentencing. The Court noted that evidence of racial
intolerance and subversive advocacy may be considered when
relevant to disputed issues. Id. at 164, 112 S. Ct. at 1097, 117
L. Ed.
2d at 316 (citing Barclay v. Florida,
463 U.S. 939,
103 S.
Ct. 3418,
77 L. Ed.2d 1134 (1983)). It recalled that Aryan
Brotherhood membership was held admissible to impeach a witness
when it was shown that members of the gang take oaths to lie for
other members. Id. at 164, 112 S. Ct. at 1097, 117 L. Ed.
2d at
317 (citing Abel, supra,
469 U.S. 45,
83 L. Ed.2d 450,
105 S.
Ct. 465 (1984)). However, the Court examined Dawson's
stipulation and realized that Delaware had proven only that the
Aryan Brotherhood originated in California in the 1960s, that
that gang espoused white racist beliefs, and that there is a gang
in Delaware's prisons that refers to itself by the same name.
Id. at 165, 112 S. Ct. at 1097, 117 L. Ed.
2d at 317.
According to the Court, the evidence surrounding the gang
was irrelevant to Dawson's sentencing for three reasons. First,
the stipulation did not state that Delaware's version of the gang
is a racist organization. And even if it were, the Court
reasoned that the murder of which Dawson was convicted, unlike
the murder in Barclay, was not racially motivated because Dawson
and his victim were of the same race. Id. at 166, 112 S. Ct. at
1098, 117 L. Ed.
2d at 317-18.
Second, Delaware did not establish "that the Aryan
Brotherhood had committed any unlawful or violent acts, or had
even endorsed such acts." Had Dawson been a member of a gang
that endorsed the killing of an "identifiable group," the Court
reasoned, that membership "might be relevant to a jury's inquiry
into whether the defendant will be dangerous in the future." Id.
at 166, 112 S. Ct. at 1098, 117 L. Ed.
2d at 318. "But the
inference [that] the jury was invited to draw in [Dawson's] case
tended to prove nothing more than the abstract beliefs of the
Delaware chapter." Ibid. The Court held that the First
Amendment prohibits the use of evidence that proves nothing more
than a defendant's possession of such abstract beliefs. Id. at
167, 112 S. Ct. at 1099, 117 L. Ed.
2d at 319.
Third, the Dawson Court acknowledged that prosecutors must
have the leeway to rebut a capital defendant's mitigating
evidence. Id. at 167, 112 S. Ct. at 1098-99, 117 L. Ed.
2d at
318. The opinion further suggested that once a capital defendant
offers positive character evidence in mitigation, a State may
offer whatever "bad" character evidence it has, even if it does
not specifically contradict the defendant's mitigating evidence.
Id. at 168-69, 112 S. Ct. at 1099, 117 L. Ed.
2d at 319. But
Delaware's evidence concerning the prison gang did not even serve
that "principle of broad rebuttal" because "the Aryan Brotherhood
evidence presented . . . [could not] be viewed as relevant `bad'
character evidence in its own right." Id. at 169, 112 S. Ct. at
1099, 117 L. Ed.
2d at 319.
The State's evidence relating to defendant's thoughts on the
Second Amendment are in the same category as Delaware's evidence
concerning Dawson's membership in the Aryan Brotherhood. The
testimony the State elicited from Doctor Weiss established
nothing more than defendant's beliefs that the Second Amendment
is "sacrosanct" and that the Founders "had in mind that there
might be another bloody revolution." Without explaining why the
witness, qualified as an expert in psychiatry, would have any
knowledge of who the victims of such a bloody revolution might
be, the State had Doctor Weiss speculate, in response to leading
questions, that "if Leslie Nelson were to be a revolutionary,"
she would "focus her violence" against the government, and
possibly against the police as "authority figure[s] representing
the structure of society." (Emphasis added.) Had the State
proved that defendant desired or advocated violent attacks on the
government (such as in the Oklahoma City or World Trade Center
bombings), that evidence would have been relevant to rebut
defendant's mitigating contentions that the lack of police
training, her emotional disturbance, and her impaired capacity to
appreciate the wrongfulness of her conduct caused the deaths of
the two officers. However, the State never established that
defendant was actually a revolutionary. It established nothing
more than defendant's "abstract belief" in the importance of the
Second Amendment and the Founders' concern about a future
revolution. According to Dawson, the admission of such "abstract
beliefs," without more, violated defendant's First Amendment
rights. Id. at 167, 112 S. Ct. at 1099, 117 L. Ed.
2d at 318.
Defense counsel did not object to the State's questioning of
Doctor Weiss concerning defendant's political beliefs. Because
the Brady violation requires a retrial, we need not decide
whether the improper pursuit of the "Bloody Revolution" theory
constituted plain error under Rule 2:10-2 requiring a new penalty
trial. At a retrial, the State shall be obliged to prove the
defendant desired or advocated violent attacks on government as a
condition to the admission of such evidence.
The defendant argues that a portion of the court's instruction may have conveyed to the jury that a finding of aggravating factors but no mitigating factors required that the death penalty be automatically imposed. The judge instructed that "[a] consequence of the jury finding the presence of one or more aggravating factors and the jury not finding the existence of a mitigating factor would mean that all members of the jury agree the appropriate punishment is death."
We agree that the instruction improperly creates the danger that a jury, having found one or more aggravating but no mitigating factors, would impose the death penalty without carefully analyzing and unanimously agreeing upon the appropriateness of death. However, the instruction's placement in the context of the court's entire instruction lessened that danger in this case. Immediately thereafter, the court explained to the jury that "a death verdict cannot be the product again of a mechanical application of a statute. Rather, such a verdict can result only if it is [a] reflection of your judgment that death is the fitting and appropriate punishment in the case you are considering." We are satisfied that this instruction, which we must presume the jury to have followed, State v. Manley, 54 N.J. 259, 270 (1969), precluded an automatic imposition of the death penalty.
Defendant also complains that the trial court consolidated into a single factor on the verdict sheet the police-training circumstance and other catch-all mitigating factors. We have discussed the general issue extensively in State v. [Ambrose] Harris, ___ N.J. ___ (1998) (slip op. at 74-82) and in State v. Biegenwald, 126 N.J. 1, 45-49 (1991) (Biegenwald IV). No detailed discussion is required here. The bedrock principle of law is that the jury must not be precluded from considering as a mitigating factor any aspect of a defendant's character or record and any of the circumstances of the offense that the defense proffers as a basis for a sentence less than death. In addition, although trial courts need not list every mitigating circumstance separately on verdict sheets and need not demand distinct votes on every factor, Harris, supra, ___ N.J. at ___ (slip op. at 77-78), "wholly unrelated factors" should be presented separately. Biegenwald IV, supra, 126 N.J. at 48. There were two wholly unrelated catch-all factors in this case. The first was defendant's mental health. The jury rejected the "emotional disturbance" and "impaired capacity" mitigating factors, but the jury may have reasoned that defendant's psychological problems qualified as a catch-all mitigating factor. It may have found her mental health to be "relevant to [her] prospects of rehabilitation or to the circumstances of the offense[s]." N.J.S.A. 2C:11-3c(5)(h). The second factor was the alleged inadequacy of the police training. In a retrial, these unrelated circumstances should be listed separately.
The trial court did not err in refusing to instruct the jury that the police had probable cause to obtain an arrest warrant at the time of the attempted execution of the search warrant. In support of her contention that the police had acted improperly during the April 20 confrontation, defendant called an expert who testified that the officers' awareness of the illegal weapons in defendant's bedroom would have justified the issuance of an arrest warrant. Defendant's theory was that if the officers had simply arrested her and not threatened to use the search warrant to invade her personal space, the shootings would not have occurred. At the end of the jury charge, defense counsel objected to the lack of an instruction confirming that the officers did have probable cause to support an arrest warrant. The court stated that it might have done so had the request been more timely, but it declined to call the jury back to give them the requested instruction. We would not reverse based on this exercise of discretion. At a retrial, the request may be renewed.
International law does not require invalidation of New Jersey's death penalty. The United States of America has not subscribed to any international human rights accord that has invalidated the death penalty. See Peter J. Spiro, The States and International Human Rights, 66 Fordham L. Rev. 567 (1997) (observing that the United States has not acceded to "near universally-adopted international human rights conventions"); see also State v. Makwanyane, 1995 (3) SA 391 (CC) (the South African Constitutional Court discussing public international law relevant to the constitutionality of the death penalty).
For completeness of the record, we note and preserve defendant's challenge to the proportionality of her death sentence. With respect to defendant's challenge to the constitutionality of the death penalty statute, we adhere to our decision in Ramseur, supra, 106 N.J. at 190, in which we rejected arguments that the statute violated the Eighth Amendment of the United States Constitution and Article 1, paragraph 12 of the New Jersey Constitution.
To sum up, "[a] shocking crime puts law to its severest test. The law triumphs over natural impulses aroused by such a crime only if guilt be ascertained by due regard for those indispensable safeguards which our civilization has evolved for the ascertainment of guilt." Fisher v. United States, 328 U.S. 463, 477, 66 S. Ct. 1318, 1325, 90 L. Ed. 1382, 1391 (1945) (Frankfurter, J., dissenting). The State disregarded the safeguard that requires the prosecution to disclose to an accused all evidence favorable to the defense. That error undermines the jury's verdict.
Our dissenting members acknowledge that this constitutional safeguard was violated, but they find that the violation was not material to determining defendant's punishment. Try as we might, we cannot regard the Brady violation as immaterial to determining defendant's punishment. One of the central issues in the penalty trial, if not the central issue, was whether defendant's violent reaction could have been avoided had the police officers handled their investigation differently. The suppressed evidence directly supported defendant's mitigating theory. Had the source of that evidence not been the State's star