(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 January 16, 1996 -- Decided March 5, 1997
STEIN, J., writing for the Court.
Defendant was convicted of murdering and conspiring to murder his wife, and sentenced to death.
The State's theory at trial was that defendant had hired another to kill his wife. This Court affirmed the
convictions and sentence, and concluded that the death sentence was not disproportionate to sentences
imposed in similar cases.
Defendant obtained a stay of execution from the Law Division and filed with that court a petition for
post-conviction relief (PCR). Defendant's amended petition contained a total of 548 grounds for reversal.
Many of the claims involved discovery violations by the State and ineffective assistance of counsel. The PCR
court dismissed the vast majority of the claims on procedural grounds under R. 3:22-4 (could have been but
not raised in prior proceeding), and R. 3:22-5 (prior adjudication on merits). The PCR court further
determined that defendant was not entitled to a complete evidentiary hearing at which live testimony would
be taken except on five claims involving defense counsel's representation in opening statement that defendant
would testify, and defendant's competence to take part in the penalty-phase proceeding after a post-verdict
physical collapse. As to the other remaining claims, the court permitted defendant to present documentary
evidence only.
The court denied defendant's petition for PCR, finding defendant's legal arguments to be without
merit and concluding that the evidence presented by the State at trial remained intact and undiminished in
weight. Defendant appeals to this Court as of right, presenting the first PCR application by a defendant
sentenced to death under the New Jersey Code of Criminal Justice. Defendant's execution has been stayed
pending his appeal to this Court.
HELD: The PCR court's reliance on the R. 3:22-4 and -5 procedural bars to dismiss most of defendant's
claims is overruled. The Court affirms the denial of defendant's petition for post-conviction relief based on a
disposition of defendant's claims on the merits.
1. The voluminous size of the petition and its constituent documents, combined with the 548 claims of error
on which it relies, present the Court with an appellate record of gargantuan size. The Court questions both
the wisdom and necessity for so massive a presentation. The Court infers that the vastness of the petition
reflects, in part, a strategy to avoid the imposition of procedural bars, given the effect of the federal practice
to deny habeas corpus review of state court judgments that rest on adequate independent state grounds,
whether substantive or procedural. The Court intends, however, that its disposition of the procedural bar
issue will discourage the artificial fragmentation of claims for PCR purposes, even in capital cases. The
Court questions the PCR court's broad-brush application of the R. 3:22-4 and -5 procedural bars. Many, if
not most of those rulings overstate the effect of this Court's direct appeal opinion or underestimate the
significance of the enhanced factual basis for the claims asserted in the PCR petition. Moreover, the analysis
required for disposition of a claim on the merits is, in most instances, less intricate than that required to
decide whether a claim should be precluded because of a procedural bar. (Pp. 14-30).
2. In respect of defendant's claims that the State improperly withheld exculpatory evidence from defendant (Brady violations), the Court applies the unitary "materiality" test of United States v. Bagley, 473 U.S. 667 (1985) (nondisclosure is material if there is a reasonable probability that, had the evidence been disclosed, the result would have been different), whether or not defendant had specifically requested the documents before trial. Defendant's ineffective-assistance-of-counsel claims are evaluated under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984) (defendant must show that counsel's performance was deficient and that there is a reasonable probability that but for the deficiency, the result would have been
different). A PCR court ordinarily should grant an evidentiary hearing if a defendant has presented a prima
facie case (a reasonable likelihood that the claim will ultimately succeed on the merits), although an
evidentiary hearing need not be granted if the court perceives that it will not aid the court's analysis or
defendant's allegations are too vague, conclusory, or speculative. An evidentiary hearing should not be
granted for the purpose of permitting a defendant to investigate whether the State has failed to deliver
discoverable materials. (Pp. 30-37).
3. A small number of defendant's claims are subject to the bar of R. 3:22-5, since they were adjudicated on
direct appeal. Reviewing in detail the merits of defendant's remaining claims, the Court determines that no
relief is warranted. As to alleged Brady violations, the Court finds that any undisclosed information or
documents are immaterial. In respect of the ineffective-assistance-of-counsel-claims, the Court finds that
defendant has failed to show either that there were any deficiencies, or a reasonable probability that but for
any deficiencies, the result would have been different. (Pp. 38-159).
4. Defendant raises a multitude of claims concerning trial counsel's ineffectiveness in preparing for and
conducting the penalty-phase proceeding. This is the first case where the Court has had occasion to
comprehensively discuss and apply the Strickland standard to the penalty phase of a capital case. Strict
application of the Strickland prejudice prong to the penalty phase poses a high obstacle to the successful
assertion of ineffective assistance of counsel claims, because of the difficulty faced by an appellate court in
deciding whether the jury would have ruled differently on the sentence. An adaptation of the Strickland
prejudice test to capital case penalty-phase proceedings that more faithfully reflects the Court's appellate
function would require courts to determine whether there is a reasonable probability that, but for counsel's
unprofessional errors, the jury's penalty-phase deliberations would have been "affected substantially."
Defendant's claims here, however, do not satisfy this adaptation of the Strickland standard. (Pp. 159-181).
5. The Court Rules do not explicitly authorize discovery in PCR proceedings. Nonetheless, a PCR court has
the inherent right to compel discovery, although that will be an unusual case. A defendant seeking to inspect
State files in PCR proceedings should identify the specific documents sought for production. The Court
concludes that the PCR court here did not abuse its discretion in ruling on defendant's discovery motions. In
addition, the common-law right to inspect public documents may not be invoked in a pending criminal case
by a defendant seeking discovery rights, whether the case is at trial, on direct appeal, or on PCR review.
(Pp. 196-206).
6. The Court finds defendant's other claims involving the fairness of the PCR proceedings to be without
merit. (Pp. 207-221).
The judgment of the Law Division denying defendant's petition for post conviction relief is
AFFIRMED.
JUSTICE O'HERN, concurring in part and dissenting in part, agrees with the majority's dismissal
of defendant's petition, but dissents from the denial of a hearing on the claims of ineffective assistance of
counsel and the denial of access to the State's investigative file.
JUSTICE HANDLER, dissenting, cannot join in the conclusion that defendant can be lawfully and
constitutionally executed, given the failings of his trial counsel in the penalty phase, the absence of a death-qualified jury, the State's abrogation of its discovery obligations, and the many other errors that infected this
case. Justice Handler agrees with the majority's finding that the trial court's dismissal of most of defendant's
claims on procedural grounds was improper, but is of the view that a remand is required for findings of fact
and law before the claims can be addressed on the merits.
JUSTICES POLLOCK, GARIBALDI, and COLEMAN join in JUSTICE STEIN'S opinion.
JUSTICE O'HERN filed a separate opinion concurring in part and dissenting in part. JUSTICE
HANDLER filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
38 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT O. MARSHALL,
Defendant-Appellant.
Argued January 16, 1996 -- Decided March 5, 1997
On appeal from the Superior Court, Law
Division, Atlantic County.
Judith L. Borman, First Assistant Deputy
Public Defender and Joan D. Van Pelt, Deputy
Public Defender, argued the cause for
appellant (Susan L. Reisner, Public Defender,
attorney; Ms. Borman, Ms. Van Pelt and
Bernadette N. De Castro, Assistant Deputy
Public Defender, on the briefs).
Robert E. Bonpietro and Paul H. Heinzel,
Deputy Attorneys General, argued the cause
for respondent (Deborah T. Poritz, Attorney
General of New Jersey, attorney).
I. FACTS AND PROCEDURAL HISTORY 5
II. THE INTERRELATIONSHIP OF POST-CONVICTION RELIEF, THE
CAPITAL PUNISHMENT ACT, AND HABEAS CORPUS 14
III. LEGAL STANDARDS GOVERNING DEFENDANT'S CLAIMS 30
IV. THE MERITS OF DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF 38
A. ALLEGED ERRORS RELATING TO THE TESTIMONY OF BILLY
WAYNE MCKINNON 38
1. McKinnon's Plea Agreement 39
2. Other Claims Relating to McKinnon's
Credibility 45
3. McKinnon's Telephone Call to Robert Cumber 55
4. Impact on the Penalty Phase 57
B. ALLEGED ERRORS RELATING TO DEFENSE INVESTIGATOR
RUSSELL KOLINS 58
C. ALLEGED ERRORS RELATING TO THE "SUICIDE TAPE" AND
ITEMS SEIZED FROM DEFENDANT'S MOTEL ROOM 70
1. Claims Based on Evidence Relevant to Whether
the Tape Should Have Been Suppressed on the
Ground That It Was Improperly Seized 72
2. Claims Based on Evidence Relevant to Whether
the Tape Should Have Been Suppressed on the
Ground That It Was Subject to the Attorney-Client Communication Privilege 83
3. Claims Alleging Ineffective Assistance of
Counsel in Connection With the "Suicide
Tape" and the Items Seized at the Best
Western Motel 91
4. Miscellaneous Claims Associated with the
"Suicide Tape" and Items Seized at the Best
Western Motel 95
D. CLAIMS RELATING TO SARANN KRAUSHAAR 98
E. ALLEGED ERRORS THAT PRECLUDED THE DEFENSE FROM
UTILIZING THE CRIME SCENE TO PORTRAY DEFENDANT AS
THE VICTIM OF A CRIME105
1. In General105
2. The Tire107
3. Counsel's Failure to Elicit on Cross-Examination the Consistent Statements Made by
Defendant to Various Police Officers About
the Problems He Experienced with His Car110
4. Position of Body and Ballistics111
5. Stopping in the Oyster Creek Picnic Area114
6. Defendant's Injuries and Treatment116
7. Defendant's Demeanor117
8. The Jewelry118
F. ALLEGED ERRORS THAT PRECLUDED THE DEFENSE FROM
DEMONSTRATING THAT NEITHER DEFENDANT'S DEBT NOR
INSURANCE POLICIES ON THE VICTIM'S LIFE WERE
MOTIVES FOR MURDER119
1. Debt 119
2. Victim's Life Insurance Policies 123
G. ALLEGED INFRINGEMENTS ON DEFENDANT'S RIGHT TO
RETAIN COUNSEL128
H. ALLEGED VIOLATIONS OF DEFENDANT'S MIRANDA RIGHTS134
I. CLAIMS RELATING TO THE INTEGRITY OF THE IMPANELED
JURY136
J. MISCELLANEOUS CLAIMS OF PROSECUTORIAL MISCONDUCT144
K. TRIAL COUNSEL'S ALLEGED FAILURE TO INTRODUCE
EVIDENCE CORROBORATING DEFENDANT'S TESTIMONY145
L. ALLEGED ERRORS INVOLVING THE USE OF SEARCH
WARRANTS154
M. ALLEGED ERRORS IN THE JURY CHARGE157
N. CLAIMS INVOLVING THE RELIABILITY OF THE PENALTY-PHASE PROCEEDING159
O. ALLEGED MISCELLANEOUS DISCOVERY VIOLATIONS181
P. ALLEGED MISCELLANEOUS CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL185
Q. CLAIMS ALLEGING THAT THE DEATH-PENALTY STATUTE IS
UNCONSTITUTIONAL AND THAT THE APPELLATE DEATH-PENALTY PROCEEDINGS IN THIS CAPITAL CASE HAVE BEEN
INADEQUATE AND UNRELIABLE190
R. CUMULATIVE ANALYSIS OF CLAIMS194
V. CLAIMS INVOLVING THE FAIRNESS OF THE POST-CONVICTION
RELIEF PROCEEDINGS196
A. DENIAL OF ACCESS TO THE STATE'S FILES196
B. THE POST-CONVICTION RELIEF COURT'S DECISION NOT TO
DISQUALIFY ITSELF207
C. DENIAL OF DEFENDANT'S ATTEMPT TO INTERVIEW THE
TRIAL JURORS213
D. REFUSAL TO PERMIT RECONSTRUCTION AND
SUPPLEMENTATION OF THE TRIAL RECORD214
E. REFUSAL OF LAW ENFORCEMENT PERSONNEL TO TALK TO
THE DEFENSE 216
F. MISCELLANEOUS CLAIMS THAT THE POST-CONVICTION
RELIEF PROCEEDINGS WERE UNFAIR220
VI. CONCLUSION222
The opinion of the Court was delivered by
STEIN, J.
Defendant, Robert Marshall, was tried before a jury and
convicted of murdering and conspiring to murder his wife, Maria
Marshall. After a penalty-phase hearing, defendant was sentenced
to death. This Court upheld the convictions and sentence,
123 N.J. 1 (1991), and concluded that defendant's death sentence is
not disproportionate to the sentences imposed in similar cases.
130 N.J. 109 (1992).
After obtaining a stay of execution from the Law Division,
defendant filed with that court a petition for post-conviction
relief (PCR), see Rule 3:22-1, alleging more than 500 grounds for
the reversal of his convictions and sentence. In an unreported
opinion, the Law Division denied defendant's PCR application.
Defendant appeals to this Court as of right, see Rule 2:2-1(a)(3), presenting to this Court the first PCR application by a
defendant sentenced to death under the New Jersey Code of
Criminal Justice.
A detailed recounting of the evidence adduced at defendant's guilt- and penalty-phase trials is set forth in our first Marshall opinion. See State v. Marshall, 123 N.J. 1 (1991) (Marshall I), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993). We reproduce here "a general outline of the facts that the jury could have found as drawn from the State's brief," State v. Marshall, 130 N.J. 109, 120 (1992) (Marshall II), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993), to facilitate the reader's understanding of our disposition of this appeal.
Defendant, a Toms River insurance agent, began an extramarital affair with Sarann Kraushaar, a married woman, in June 1983. As early as December 1983, defendant mentioned to Kraushaar the idea of killing his wife, Maria. In May 1984, defendant met Robert Cumber of Louisiana and questioned him about hiring an "investigator." Defendant later telephoned Cumber, who referred defendant to Billy Wayne McKinnon, a former sheriff's officer from Louisiana. Defendant agreed to pay McKinnon $5,000 to meet him in Atlantic City, New Jersey.
Defendant met McKinnon at Harrah's Casino in Atlantic City on June 18, 1984, and offered to pay him $65,000 to kill his wife. In addition to the $5,000 that McKinnon had already received, defendant agreed to pay him $10,000 up front and $50,000 from the expected insurance proceeds on his wife's life. At that meeting defendant paid McKinnon $7,000 and gave him a picture of his wife. Defendant told McKinnon to kill her
that evening, when defendant would be
present. In preparation for the killing,
defendant and McKinnon discussed various ways
to kill Maria. Defendant believed that he
would not be considered a suspect because he
was considered an outstanding citizen with
influence in the community.
McKinnon did not carry out the murder at
that time, but instead returned to Louisiana.
Defendant communicated with him on numerous
occasions and sent him additional money.
Under pressure from defendant to complete the
job, McKinnon returned to Atlantic City on
July 19, 1984, and met with defendant, who
proposed a second plan for the killing to
take place that evening. Defendant told
McKinnon that he would leave his wife in
their car to be executed while defendant went
into a restaurant under the pretense of using
the bathroom facilities. However, McKinnon
did not commit the murder at that time
either.
Defendant, persistent in his efforts to
have his wife killed, offered McKinnon an
"extra fifteen" ($15,000) if he would return
to New Jersey a third time to do the "job"
before Labor Day. McKinnon agreed, and, on
September 6, 1984, he and defendant met at a
service area parking lot located south of
Toms River. Together they selected a spot on
the Garden State Parkway to carry out Maria's
murder and made final plans for the slaying,
which was to occur that evening. The plan
was to make the murder look like a robbery.
Defendant took his wife to Harrah's
Casino in Atlantic City on the night of
September 6, 1984, under the pretext of an
evening of dining and gambling. He met
McKinnon outside Harrah's at approximately
9:30 p.m. and told him that he and Maria
would be leaving the casino at about
midnight. Defendant also asked McKinnon for
the return of the photographs of Maria and of
their home that he had given him in June.
As previously arranged with McKinnon,
defendant pulled into the Oyster Creek picnic
area at milepost seventy-one on the Garden
State Parkway at about 12:30 a.m. on
September 7. While his wife lay sleeping on
the front seat, defendant got out of the car
under the ruse of needing to repair a flat
tire. Defendant squatted down to prepare
himself for being hit on the head as part of
the simulated robbery. Maria Marshall was
shot in the back twice. She died
immediately.
When the police arrived on the scene,
defendant continued to make the murder look
like a robbery. The State argues that
defendant showed no remorse after the crime,
but pretended to join his three sons in
grieving over the loss of their mother. The
State argued at the trial level that he even
staged a suicide attempt. Defendant
protested his innocence then and continues to
do so now in explanation of his conduct.
Defendant's claims of innocence soon
unraveled. Telephone records traced him to
McKinnon, who turned State's evidence. In
exchange for a plea to conspiracy to commit
murder, McKinnon implicated Marshall and
identified a Louisiana man, Larry Thompson,
as the triggerman.
Investigation disclosed that during his planning, defendant had been increasing the insurance policies on his wife's life. At the time of her death, Maria Marshall's life was insured for about $1,400,000. Defendant had been paying his wife's premiums while neglecting his own. Defendant hastened to complete an application for a policy for a home mortgage before the murder. On the last day of her life, Maria underwent a physical examination for that policy. The State offered proof that defendant could have been motivated to kill by rising debts incurred in his business, including a $128,000 home-equity loan and a short-term bank debt in excess of $40,000. While amassing those
large insurance policies, defendant also
continued his relationship with Sarann
Kraushaar, with whom he had intended to live
after the murder.
A jury acquitted Thompson of the murder
but accepted McKinnon's version of
defendant's role and found him guilty of
conspiracy to commit his wife's murder and of
murder-by-hire. The only aggravating factor
submitted to and found by the jury was that
defendant had hired another to commit murder.
N.J.S.A. 2C:11-3c(4)(e). The two mitigating
factors submitted to and found by the jury
were that defendant had no history of
criminal activity, [N.J.S.A. 2C:11-3]c(5)(f),
and the catch-all mitigating factor,
[N.J.S.A. 2C:11-3]c(5)(h). At the time of
the offense defendant was forty-four years of
age, and had been involved in charitable and
community activities. The jury unanimously
found beyond a reasonable doubt that the
aggravating factor outweighed the mitigating
factors. The trial court sentenced defendant
to death.
This Court affirmed defendant's convictions and sentence on direct appeal, rejecting his thirty-nine proffered grounds for reversal, which included allegations of ineffective assistance of counsel, improper jury instructions, prosecutorial misconduct, and discovery violations. See Marshall I, supra, 123 N.J. 1. In respect of defendant's discovery-related contentions on direct appeal, the State had conceded that it had breached its pretrial discovery obligations by failing to turn over to defendant various documents relevant to his case. See id. at 172. Those documents included letters discussing expenditures made by the State on behalf of Billy Wayne McKinnon and a promise of immunity
made to Sarann Kraushaar by the Ocean County Prosecutor. Id. at
171, 205. This Court concluded that the undisclosed items were
not "`material' to defendant's guilt or punishment," id. at 204-05, and thus that the nondisclosures did not require the reversal
of defendant's convictions or sentence. Id. at 205, 207.
Believing that there were additional discoverable items that
the State had failed to turn over, defendant, after filing a
petition for PCR in the Law Division, moved to compel the State
to permit defendant to inspect the State's entire file. The Law
Division denied the motion, but informed defendant that he was
entitled to file discovery applications for specific items. The
court explained that "before the State should be compelled to
turn over items . . . , there should be some preliminary showing
of the reasonable likelihood of the existence of specific items."
Based on information obtained from, among other sources,
interviews conducted with witnesses, testimony adduced at
defendant's trial, documents previously handed over by the State,
and statements made by state officials at another trial and on
"The Phil Donahue Show," defendant made numerous requests for
specific discoverable materials that, defendant believed, were in
the State's possession. Without conceding that its discovery
obligations applied to the documents in question, the State
voluntarily made available to defendant some of the requested
items. Concerning the balance of the requested items, the State
submitted the documents to the PCR court for a determination of
whether defendant was entitled to the documents. In some
instances, the court required the State to provide defendant with
the documents in question. In other instances, the court found
the documents to be work product or of no probative value and
thus not subject to the State's discovery obligations.
The documents received by defendant after his initial PCR
discovery motions alerted him to the existence of additional,
pertinent documents, and led him to make further specific
requests for discovery materials. Through the specific-request
procedure, defendant received from the State approximately one
hundred documents. Those documents form the foundation of
defendant's PCR claim that reversal of his convictions is
required because of the State's failure to fulfill its pretrial
discovery obligations, see Rule 3:13-3, and its nondisclosure of
evidence favorable to defendant, see Brady v. Maryland,
373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed.2d 215 (1963).
Defendant's amended petition for PCR contained a total of
548 grounds for reversal, each of which was placed by defendant
into one of nine separate categories. The following chart
displays the categories used by defendant and the number of
claims within each category.
Category Number of Claims
A. Issues Relating to Discovery 102
and Violations of Brady v. Maryland,
373 U.S. 83 (1963)
B. Issues Relating to Ineffective 267
Assistance of Trial Counsel
C. Issues Relating to the Jury 74
Selection
D. Issues Relating to State's 11
Procurement from Best Western Motel
and Examination of Envelope
Addressed to Joseph Dougherty, Esq.,
Containing Defendant's "Suicide Tape"
and Tape's Admission into Evidence
E. Issues Relating to the Conduct 27
of the New Jersey State Police, the
Ocean County Prosecutor's Office
and the New Jersey Office of the
Attorney General as they Affected
Defendant's Rights to a Fair Trial,
Appeal and Post-Conviction Proceedings
F. Miscellaneous Issues 24
G. Issues Pertaining to Appellate 9
and Post-Conviction Review and the
Effective Assistance of Trial Counsel
H. Issues That Were Not Adequately 16
Raised or Reviewed on Appeal Due to
Page Restrictions Imposed by Supreme
Court
I. Issues Pertaining to Proportionality 19
Review
Defendant requested a complete evidentiary hearing to support the claims raised in the petition through the presentation of testimonial and documentary evidence. He planned to amend the petition based on the evidence adduced at the hearing. In response, the State moved to dismiss the petition in its
entirety, asserting that defendant had failed to set forth his
claims with sufficient specificity, see R. 3:22-8, and that the
claims were all procedurally barred, see R. 3:22-4 (providing,
with exceptions, that any claim that could have been, but was
not, raised in prior proceeding is barred on post-conviction
review); R. 3:22-5 (providing that prior adjudication upon merits
of claim precludes raising claim on post-conviction review).
The PCR court granted in part and denied in part the State's
motion to dismiss the petition. On procedural grounds, the court
dismissed approximately three-quarters of defendant's Category B
claims, all of the Category C claims, all of the Category D
claims, all but one of the Category E claims, all but one of the
Category F claims, all but one of the Category G claims, all of
the Category H claims, and all of the Category I claims. The
court found that each of those claims was barred by either Rule
3:22-4 or Rule 3:22-5.
Turning to defendant's request to present witnesses and
documents to develop his petition, the court determined that
defendant was entitled to a complete evidentiary hearing on only
five of the remaining 174 claims. Those five claims pertained to
defense counsel's opening-statement representation that defendant
would testify, and to defendant's competence to take part in the
penalty-phase proceeding after a post-verdict physical collapse.
The PCR court stated that, on the other 169 claims,
defendant would be entitled only to a "non-evidentiary hearing,"
at which he could present documentary evidence but not live
testimony. The court explained:
The rules of court do not require that
evidentiary hearings be conducted on post-conviction relief applications. The hearing
court has discretion to conduct evidentiary
hearings when appropriate, an evidentiary
hearing meaning a hearing at which witnesses
will testify . . . . [In this case, t]here's
been no showing that the hearing will
necessarily involve the resolution of
disputed questions of fact material to
constitutional violations which can only be
resolved in an . . . evidentiary hearing. In
fact, it is apparent that for the court and
for the litigants to undertake such a hearing
on the basis of the allegations in the
amended petition for post-conviction relief
application would be to venture into a legal
morass essentially in the nature of a
discovery proceeding with no ascertainable
parameters and limits.
The court heard four days of testimony and received 177
defense exhibits in support of the petition for PCR. During the
hearings, defendant moved to add nine more claims to his
petition. The court denied the motion to amend "at this very
late date," and further noted that the additional claims were
without merit.
At the conclusion of the hearings, the court denied
defendant's petition. The court found his legal arguments to be
without merit and concluded that "[d]espite the undeniably
prodigious efforts of [defense] counsel in this proceeding, [the
evidence presented by the State at trial] remains intact and
undiminished in weight."
Defendant's execution has been stayed pending his appeal to
this Court as of right.
This is the first appeal taken to this Court from the denial of a post-conviction relief application seeking to set aside a murder conviction and death sentence imposed pursuant to this State's Capital Punishment Act. L. 1982, c. 111 (codified at N.J.S.A. 2C:11-3). The voluminous size of the petition and its constituent documents -- including a forty-five volume appendix and fifteen volume supplemental appendix, together encompassing in excess of 8000 pages -- combined with the 548 claims of error on which it relies, presents the Court with a gargantuan appellate record. The issues presented initially were addressed in the Public Defender's 215 page primary brief and answered by the Attorney General's primary brief of comparable dimension. The Public Defender filed a supplemental brief, at the Court's request, consisting of 250 pages and accompanied by an eleven volume index setting forth record and brief citations in support of each of the post-conviction relief claims. The State's responding supplemental brief comprises 244 pages.
The Court acknowledges the enormous effort and professional
dedication reflected by the Public Defender's submissions, as
well as the burden it imposed on the remaining resources of that
office. Similarly, the Court acknowledges the comparable effort
and dedication reflected by the Attorney General's submissions.
An appeal based on so vast a record and implicating so many
distinct issues obviously imposes an enormous institutional
burden on this Court, diverting time and resources from the
Court's other adjudicative and administrative responsibilities.
We know that defendant faces the death penalty. Nevertheless, we
question both the wisdom and the necessity for so massive a
presentation.
We assume that the vastness of the petition and its
supporting documents reflects strategic considerations. We infer
that one of those strategic considerations was the desire to
avoid the very procedural bars to the petition imposed by the
trial court pursuant to Rule 3:22-4 and -5. Rule 3:22-4
essentially bars all grounds for post-conviction relief that
reasonably could have been raised in a prior proceeding. Rule
3:22-5 bars all grounds for relief that previously were
adjudicated on the merits. Presumably, the Public Defender's
office reasoned that dividing the post-conviction relief claims
into discrete and narrow components would dissuade the post-conviction relief court from categorically imposing the Rule
3:22-4 and -5 procedural bars, and would add weight to the
argument that the cumulative effect of all claims required that
the petition be granted.
That strategy was unsuccessful in the post-conviction relief
court, and we intend that our disposition of this appeal
emphatically will discourage the artificial fragmentation of
claims for post-conviction relief purposes, even in capital
cases. Such fragmentation elevates form over substance, and
unduly burdens the litigants, the post-conviction relief court,
and this Court. Post-conviction relief issues should be
categorized broadly but coherently, and to the extent necessary
illustrated by pertinent examples. No valid purpose is served
when every minute example of trial counsel's alleged
ineffectiveness is offered as a separate ground for post-conviction relief.
We do not underestimate the potential significance of a
post-conviction relief strategy that is designed to avoid the
imposition of procedural bars to post-conviction relief. In
State v. Preciose,
129 N.J. 451, 464-78 (1992), we explored in
detail the effect of the federal practice to deny habeas corpus
review of state court judgments that rest on adequate or
independent state grounds, whether substantive or procedural.
See Wainwright v. Sykes,
433 U.S. 72, 81-87,
97 S. Ct. 2497,
2503-07,
53 L. Ed.2d 594, 604-08 (1977). In Harris v. Reed, the
Supreme Court established the principle that a state court's
imposition of a state procedural bar would not preclude federal
habeas review unless the state court's disposition expressly
stated its reliance on the state procedural bar.
489 U.S. 255,
266,
109 S. Ct. 1038, 1045,
103 L. Ed.2d 308, 319 (1989). In
decisions subsequent to Harris, however, the Court clarified that
the Harris presumption against finding a procedural default
"`applies only . . . where a federal court has good reason to
question whether there is an independent and adequate state
ground for the decision.'" Preciose, supra, 129 N.J. at 471
(quoting Coleman v. Thompson,
501 U.S. 722, 739,
111 S. Ct. 2546,
2559,
115 L. Ed.2d 640, 662 (1991)). Thus, defendant's efforts
to avoid the procedural bar imposed by the post-conviction relief
court with respect to 374 claims can be understood in part as a
strategy designed to obtain substantive review of his claims in
federal habeas corpus proceedings.
Another factor that may have influenced defendant to present
such an extensive number of individual post-conviction relief
claims is the exhaustion doctrine, pursuant to which a state
prisoner must normally exhaust state judicial remedies before a
federal court will entertain that prisoner's petition for habeas
corpus. Picard v. Connor,
404 U.S. 270, 275,
92 S. Ct. 509, 512,
30 L. Ed.2d 438, 443 (1971). Codified by Congress in 1948, see
28 U.S.C. §2254, the exhaustion doctrine contemplates that
federal claims have been fairly presented to the state courts.
Thus, a federal court should inquire "whether, on the record and
argument before it, the [state court] . . . had a fair
opportunity to consider the . . . claim and to correct the
asserted constitutional defect in respondent's conviction."
Picard, supra, 404 U.S. at 276, 92 S. Ct. at 513, 30 L. Ed.
2d at
444. In Rose v. Lundy, the Supreme Court held that the
exhaustion principle mandated that a federal district court
dismiss a petition for a writ of habeas corpus that contained
both exhausted and unexhausted claims for relief.
455 U.S. 509,
510,
102 S. Ct. 1198, 1199,
71 L. Ed.2d 379, 382 (1982). The
Court offered this guidance to potential habeas litigants:
"before you bring any claims to federal court, be sure that you
first have taken each one to state court." Id. at 520, 102
S. Ct. at 1204, 71 L. Ed.
2d at 388.
Despite the preclusive effect of the exhaustion doctrine, it
does not mandate presentation to a state court of every claim
that conceivably might be asserted in the anticipated habeas
petition, but only presentation to the state court of claims
intended to be asserted in the habeas petition. Selectivity in
the presentation of claims on post-conviction relief is not
precluded by the exhaustion rule. If certain claims are
obviously without merit and highly unlikely to succeed in the
habeas petition, no purpose is served or interest advanced by
including those claims in support of either the state post-conviction relief petition or the federal habeas petition. Thus,
the exhaustion doctrine neither requires nor excuses the
indiscriminate assertion of meritless claims in a post-conviction
relief petition.
The principle bears repeating that post-conviction relief
proceedings are "not a substitute for direct appeal." State v.
Cerbo,
78 N.J. 595, 605 (1979). As our opinion discloses, we
find numerous claims to be totally lacking in merit. Apart from
defense counsel's purpose in avoiding the imposition of a
procedural bar, we consider the inclusion of many such claims to
constitute an unjustified burden on the post-conviction relief
process. Based on our disposition of the procedural bar issue,
we anticipate that that imposition will not be repeated in future
post-conviction relief proceedings, even in capital cases.
In State v. Mitchell,
126 N.J. 565, 589 (1992), we
emphasized that the procedural bars contained in the rules
governing post-conviction relief are "imposed for a purpose."
Although not "endors[ing] their rigid, mechanical application,"
we expressed our expectation that the procedural rules and their
exceptions will "be conscientiously applied to the unique
circumstances of each case . . . ." Ibid.
In the unique circumstances of this case, however, we
question the wisdom and the practicality of the PCR court's
broad-brush application of the Rule 3:22-4 and -5 procedural
bars. In view of the substantial number of claims dismissed
under Rule 3:22-5's admonition that "a prior adjudication upon
the merits of any ground for relief is conclusive . . . ," a
question fairly raised by defendant is whether the adjudication
by this Court on direct appeal or proportionality review
concerned the "same ground for relief" now asserted in the post-conviction relief petition. Similarly, dismissal of claims on
the ground that they could reasonably have been raised on direct
appeal, see R. 3:22-4, raises the question whether the additional
facts disclosed in the post-conviction relief record sufficiently
augment the scope of such claims to preclude the conclusion that
a substantially similar claim could have been advanced on the
basis of the trial record. The issue of reliance on the
procedural bars is made more complex by the recognition that the
claims now raised invariably are as readily resolved on their
merits as by application of the procedural bar.
We illustrate the problem by considering the PCR court's
disposition of post-conviction relief claims of ineffective
assistance of trial counsel in the context of the ineffectiveness
issues raised on direct appeal and our disposition of those
issues. The PCR court essentially relied on this Court's
disposition of the ineffectiveness challenge asserted on direct
appeal, Marshall I, supra, 123 N.J. at 164-65, noting that "this
contention was raised before the Supreme Court on the appeal,"
and concluding: "[E]xcept for the claims not dismissed it may be
said that all claims are barred under R. 3:22-5 as having been
previously adjudicated. If any claims are viewed as not having
been previously adjudicated because not raised in specific terms
on the appeal, then the claims are barred under R. 3:22-4."
However, the specific allegations of ineffective assistance
of counsel asserted in defendant's direct appeal brief include
only a fraction of the claims asserted on post-conviction relief.
In his direct appeal brief defendant raised only the following
ineffectiveness claims relating to the guilt phase:
Specifically, Mr. Marshall was
prejudiced by counsel's failure to pursue the
possibility that Maria Marshall was sitting
up and awake when shot through cross-examination of the medical examiner,
independent investigation and summation; his
failure to call his tire expert to testify
about the inconclusiveness of the State's
chemist's findings, his failure to request an
adequate remedy for the tire's destruction
and failure to object to the prosecutor's
summation remarks about the tire; his failure
to call as witnesses the individuals flagged
down for aid by Marshall just after the
murder; counsel's failure to attempt to
obtain the September 6th medical report for
Mr. Marshall through N.J.S.A. 2A:81-18, et
seq,; counsel's failure to object to the
prosecutor's blatantly improper questions of
Oakleigh DeCarlo; his withdrawal of his
objection to Maria Marshall's statement,
"What's this for?"; his failure to object to
Zillah Hahn's inadmissible hearsay testimony
discrediting defense witness Paul Rakoczy;
his failure to seek a remedy for the
prosecutor's informing the jury and relying
on the fact of Kraushaar's father's death;
counsel's failure to object to most of the
prosecutor's summation; and counsel's failure
to request an opportunity to interview
McKinnon upon learning he placed a call to
Cumber after testifying. . . . The
cumulative effect of the foregoing errors was
a trial that was fundamentally unfair and
unreliable from start to finish.
Responding to the specific allegations of ineffectiveness in
defendant's direct appeal brief, this Court observed:
The contention that defendant was denied effective assistance of counsel in the guilt phase is utterly without merit. Defense counsel, a certified criminal trial attorney, see Rule 1:39, provided a zealous and conscientious defense of his client throughout this protracted trial. Counsel was obviously well-prepared, thoroughly familiar with the record, and persistently and forcefully advocated his client's interests throughout the guilt-phase proceedings. The examples of the deficiencies relied on by defendant represent no more than a fraction of the strategic decisions with which counsel was confronted in the course of this lengthy and sharply contested proceeding. With hindsight, it is not difficult to suggest different trial strategies that counsel might have pursued, but the law is settled that "[i]n assessing the adequacy of counsel's performance, `strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'" Burger v. Kemp, 483 U.S. 776, 819, 107 S. Ct. 3114, 3139, 97 L. Ed.2d 638, 673 (1987) (Powell, J., dissenting) (quoting Strickland [v. Washington],[], 466 U.S. [668,] 690, 104 S. Ct. [2052,] 2066, 80 L. Ed 2d [674,] 695 [(1984)]). Nor can the quality of counsel's effectiveness fairly be assessed by focusing on a handful of issues, while ignoring the totality of counsel's performance in the context of the State's compelling evidence of defendant's guilt. Based on our close scrutiny of the entire record, we reject defendant's contention that counsel's performance was deficient under the Strickland/Fritz standard.
[Id. at 164-65.]
We cannot accurately discern from the PCR court's abbreviated disposition of the post-conviction relief
ineffectiveness claims the extent to which the court simply
accorded preclusive effect to this Court's disposition of the
issue on direct appeal. Although our resolution of the issue on
direct appeal reflected our familiarity with the entire record,
our disposition should not have been understood to extend beyond
the issues specifically raised in defendant's direct appeal
brief. Our direct appeal opinion reflects our impression, based
on the record, that trial counsel was skilled, diligent, and
thorough, but our disposition could not fairly be understood to
encompass an evaluation on the merits of numerous claims of
ineffectiveness of which this Court was then completely unaware.
Scant caselaw exists on the question of whether a prior
adjudication of an issue should be considered an adjudication "on
the same ground" as that asserted in support of a subsequent
post-conviction relief claim. In State v. Bontempo,
170 N.J. Super. 220 (Law Div. 1979), the trial court in a murder
prosecution employed an unusual and unauthorized procedure,
permitting the defendant to make an unsworn statement before the
jury after the conclusion of the summations by the attorneys.
Following the defendant's statement, the prosecutor was allowed a
second summation during which he referred to the defendant's
failure to deny specifically his complicity in the crimes
charged. On direct appeal, the defendant argued that his Fifth
Amendment right to remain silent was violated by the unusual
procedure authorized by the trial judge, including allowing the
prosecutor to rebut his statement, thus denying him his right to
a fair trial. The defendant's argument on direct appeal was held
to be "clearly without merit." Id. at 234. Noting that he did
not "expressly articulate the manner in which the procedure was
said to be violative of the Fifth Amendment [in his appellate
brief]," and finding that the thrust of his direct appeal
argument was that the structure of the process was the root of
the Fifth Amendment violation, Judge Baime ruled that the
defendant's post-conviction claim of a Fifth Amendment violation
resulting from the prosecutor's rebuttal to defendant's statement
had not been raised on direct appeal. Ibid. Thus, Rule 3:22-5
did not bar petitioner's claim.
Judge Baime explained:
Under these circumstances, it would be
unfair to bar defendant from advancing the
Fifth Amendment claim presented in his
petition. To be sure, the argument advanced
here and that presented in defendant's
Appellate Division brief are similar.
Nevertheless, the United States Supreme Court
has held in a somewhat related context that
federal judicial review of constitutional
questions on habeas corpus should be denied
only where it is clear that the identical
issues or "substantially equivalent"
arguments were not presented initially in the
state courts. See Picard v. Connor,
404 U.S. 270,
92 S. Ct. 509,
30 L. Ed.2d 438 (1971).
See also United States ex rel. Trantino v.
Hatrack,
563 F.2d 86 (3d Cir. 1977), cert.
den.
435 U.S. 928,
98 S. Ct. 1499, 55 L. Ed.
2d 524 (1978); Zicarelli v. Gray,
543 F.2d 466 (3d Cir. 1976). By analogy, that rule
should be applied with equal force here.
Preclusion of consideration of an argument
presented in post-conviction relief
proceedings should be effected only if the
issue raised is identical or substantially
equivalent to that adjudicated previously on
direct appeal. Applying that standard,
defendant's oblique reference in his
Appellate Division brief to the prosecutor's
rebuttal to his unsworn statement should not
bar judicial resolution of the issue
presented in his petition for post-conviction
relief.
Judge Baime then rejected the defendant's post-conviction
relief claim on the merits, concluding that he had waived his
Fifth Amendment right by electing to address the jury. Id. at
238-49.
Similarly, in State v. Rosen,
110 N.J. Super. 216 (App. Div.
1969), aff'd,
56 N.J. 89 (1970), an issue raised on direct appeal
of the defendant's burglary conviction was whether the fact that
his retained trial counsel had been appointed to a judgeship
before the trial deprived him of his opportunity to be
represented by counsel of his choice, a contention rejected by
the Appellate Division. In a post-conviction relief application,
the defendant for the first time asserted that he had permitted
the substitute trial counsel to represent him against his will
because counsel had warned him that his bail would be revoked if
he requested an adjournment to seek new counsel. Although the
PCR court dismissed the post-conviction relief petition, the
Appellate Division majority concluded that an evidentiary hearing
on the claim should have been held, but that the failure to do so
was harmless. Id. at 219. Dissenting, Judge Conford concluded
that the lack of an evidentiary hearing was reversible error
because the claim asserted on post-conviction relief had not
previously been adjudicated:
The decision of the Appellate Division
on the appeal from the conviction did not
decide the issue presented to the
post-conviction court. On that appeal the
record as it then stood precluded any
determination of more than whether the trial
transcript demonstrated deprivation of
defendant's right to counsel of his choice.
While the remarks of the trial judge were of
a coercive tenor, the record seemingly
demonstrated unequivocal acquiescence by
defendant in the directions of the court.
Defendant did not, nor could he properly,
argue to the appellate court on that appeal
that Mr. Kmiec's representations to him
during the recess combined with the trial
court's initial strictures made his agreement
to go to trial involuntary, since the former
facts were not in the record then before the
court. Consequently the adjudication in the
prior appeal was not a "prior adjudication
upon the merits" of the specific grounds for
relief asserted in the instant
post-conviction petition, within a proper
application of R. R. 3:10A-5.
The question whether a ground for relief in a post-conviction relief petition constitutes the "same ground" as was adjudicated on direct appeal takes on added significance because it implicates the strict application of the exhaustion doctrine by federal courts considering habeas applications. Thus, in Santana v. Fenton, 685 F.2d 71 (1982), cert. denied, 459 U.S. 1115, 103 S. Ct. 750, 74 L. Ed.2d 968 (1983), the Third Circuit rejected the defendant's habeas petition on exhaustion grounds.
The court concluded that the defendant's habeas contention that
the state PCR court's refusal to reopen the case had denied him
his constitutional right to testify on his own behalf had not
been asserted before the state courts. On direct appeal, the
defendant had argued only that the trial court had abused its
discretion in refusing to allow his testimony. Relying on
Bontempo, supra, the Third Circuit concluded that "the argument
presented to the state courts was not the substantial equivalent
of the constitutional argument he now poses in federal court . .
. ." Santana, supra, 685 F.
2d at 75.
Similarly, in Gibson v. Scheidemantel, the Third Circuit
also denied the defendant's habeas petition on exhaustion
grounds, concluding that "[t]o the extent that Gibson's claim of
ineffective assistance of counsel is now considered by him to
encompass also a contention that trial counsel failed to protect
his juvenile status, that aspect of his claim [is not a ground
for relief that has been] previously adjudicated."
805 F.2d 135,
140 n.2 (1986); see also Zicarelli v. Gray,
543 F.2d 466 (3d Cir.
1976) (en banc) (holding that defendant's habeas claim that jury
had not represented a fair cross-section of community was not
fairly presented to state courts that considered and adjudicated
other jury-related issues).
We do not imply that the federal exhaustion doctrine
constitutes a mirror image of the Rule 3:25-5 bar based on prior
adjudications on the merits, but simply observe that both
doctrines seek to vindicate the State's interest in the finality
of its criminal judgments. Moreover, both doctrines are applied
on the basis of an inquiry into whether a ground for relief has
fairly been adjudicated by or presented to the state courts.
That potential interrelationship suggests that we modify our
dicta in Preciose, supra, when we observed in a different but
related context that the use of post-conviction relief procedural
bars "should not be shaped or influenced in the slightest by the
federal court's restrictive standards for allowing or disallowing
habeas review." 129 N.J. at 477. Obviously, neither state nor
federal interests would be served by so broad an application of
our procedural bars as to deny a defendant post-conviction relief
on the ground that a claim previously had been adjudicated and,
as a result of that ruling, also preclude habeas relief because
of the defendant's inability to satisfy the exhaustion doctrine.
Moreover, the PCR court's blanket reliance on Rule 3:22-4 as
a ground for dismissal of all dismissed ineffectiveness claims
not previously adjudicated appears to be overbroad. In its
letter brief of April 26, 1994, to the post-conviction relief
court, defendant offered numerous examples of ineffective
assistance of counsel claims neither specifically adjudicated on
direct appeal nor based solely on facts and evidence contained in
the trial record. In addition, numerous items of documentary
evidence were obtained for the first time in the post-conviction
relief proceeding, and ineffective-assistance-of-counsel claims
implicating those documents cannot fairly be characterized as
claims that could have been raised on direct appeal. Finally, we
noted in Mitchell, supra, that Rule 3:22-4(c) "has been
interpreted to allow courts to consider petitions for post-conviction relief when the defendant alleges that his
constitutional rights were seriously infringed during the
conviction proceedings." 126 N.J. at 585-86. Because
defendant's post-conviction relief petition relies heavily on the
contention that trial counsel's ineffectiveness deprived him of
his constitutional rights, aggressive application of the Rule
3:22-4 bar to those claims appears to be unwarranted.
Our familiarity with the record and the proceedings on
direct appeal facilitates our disposition on the merits of
virtually all of defendant's post-conviction relief claims. To
eliminate the concerns about ambiguous state court rulings
addressed in Ylst v. Nunnemaker,
501 U.S. 797, 802-04,
111 S. Ct. 2590, 2594-95,
115 L. Ed.2d 706, 716-17 (1991), we expressly
overrule the post-conviction relief court's reliance on the Rule
3:22-4 and -5 procedural bars to dismiss defendant's claims. We
are satisfied that many, if not most, of those rulings overstate
the effect of our direct appeal opinion or underestimate the
significance of the enhanced factual basis for the claims
asserted in the PCR petition. Moreover, the question whether a
claim buttressed by added facts fairly could have been raised on
direct appeal often involves an analysis that is peculiarly
subjective. Ironically, in most instances the analysis required for disposition on the merits is less intricate than that required to decide whether a claim should be precluded because of a procedural bar. Moreover, a state court adjudication on the merits of a federal constitutional claim generally assures that that claim will qualify for federal habeas review, and as we stated in Preciose, supra, we do not "deem federal habeas review an undesirable intrusion on our adjudications." 129 N.J. at 475. That observation has special force in the context of habeas corpus petitions to review death sentences imposed pursuant to our Capital Punishment Act. Finally, we reiterate that "when meritorious issues are raised that require analysis and explanation, our traditions of comprehensive justice will best be served by decisions that reflect thoughtfu