(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 September 26, 2000 -- Decided June 7, 2001
VERNIERO, J., writing for a majority of the Court.
On April 19, 1997, Koskovich, an 18-year-old high school student, and 17-year-old Jayson Vreeland
carried out their plans to lure a pizza delivery person to an abandoned property and kill him. They ordered pizzas
from Tony's Pizza, requesting delivery to an abandoned house on Scott Road in Franklin Borough, Sussex County.
When twenty-two-year-old Jeremy Giordano and twenty-five-year-old Giorgio Gallara drove up to the
property with the pizza delivery, Koskovich and Vreeland pulled out their handguns and shot them numerous times.
After hearing about the killings the next day, Christine Slater, a friend of Koskovich's, contacted the police. The
day before the homicides, Koskovich had shared with Slater his plan to kill a pizza delivery person. In addition, a
resident of Scott Road who had seen Koskovich's automobile on that Road the evening of the murders also
contacted police after he observed the same vehicle parked at Koskovich's residence.
During the early morning hours of April 21, 1997, the State Police executed a warrant for Koskovich's
arrest at his home. The officers searched Koskovich and found a pouch containing Fiorcet pills, a prescription drug
comprised of acetaminophen, caffeine, and a barbiturate. Koskovich eventually confessed to his role in the killings,
and gave a forty-six minute taped interview.
A grand jury indicted Koskovich of purposeful or knowing murder of Giordano by his own conduct,
murder of Gallara as an accomplice, first-degree armed robbery, felony murder, and other offenses. The State
informed Koskovich that it would seek the death penalty by establishing that the murder of Giordano involved
depravity of mind (N.J.S.A. 2C:11-3c(4)(c)) and that the murder was committed while Koskovich was committing a
felony (N.J.S.A. 2C:11-3c(4)(g)). Koskovich was not eligible for the death penalty for the Gallara murder because
he did not commit the homicidal act by his own conduct. (Forensic evidence revealed that Vreeland had fired the
fatal shot that caused Gallara's death.) Koskovich pleaded not guilty to all charges.
At the guilt phase of Koskovich's trial, the State presented overwhelming evidence of his guilt. Friends of
Koskovich testified that he had told them about his plans to kill a pizza delivery person because he wanted to join
the Mafia as a hitman. Residents of Scott Road testified to the presence of Koskovich's car in that location on the
night of the murder. Investigators testified that they had discovered the murder weapons stashed outside the
Koskovich home.
The defense presented the testimony of a clinical psychologist with expertise in substance abuse. He
detailed Koskovich's history of drug and alcohol abuse, especially his use of Fiorcet. The expert concluded that
Koskovich had a substance-abuse disorder, that at the time of the offenses he was under the influence of Fiorcet,
and that, based on Koskovich's use of that drug, his capacity to commit the offenses knowingly and purposely was
significantly diminished. In rebuttal, the State called a forensic psychiatrist who disagreed with that conclusion. He
noted that Koskovich's memory of the events was excellent, and concluded that his ability to act with knowledge
and purpose was not affected by the use of Fiorcet.
The jury found Koskovich guilty of purposeful or knowing murder of Giordano and Gallara, felony
murder, first-degree robbery, and other offenses. Vreeland was tried separately. The State did not seek the death
penalty against Vreeland because he was a juvenile at the time of the murders.
At the penalty phase of the trial, the State sought to establish the depravity-of-mind and felony-murder
aggravating factors. In furtherance of that objective, it relied on the evidence produced during the guilt phase, with
minor exceptions. In response, the defense produced numerous witnesses to support certain mitigating factors. A
social worker and mitigation specialist provided extensive testimony concerning Koskovich's family and
background. She testified that his family was plagued by domestic violence, substance abuse, and suicide attempts.
She expressed the opinion that Koskovich was raised in a home without boundaries or structure and was subjected
to emotional neglect and abuse when his parents left him to be raised by his grandparents. The expert also
expressed the view that Koskovich's suicide attempt, which occurred while he was awaiting trial, illustrated the
remorse that he felt. Koskovich called another expert in forensic psychology who testified that Koskovich was
mentally ill, had a tenuous grasp on reality, and was a developing paranoid schizophrenic. Still another expert
testified that Koskovich was emotionally ill and was affected by mental and emotional disturbances on the date of
the crimes. Mrs. Giordano, the victim's mother, read a victim-impact statement. On cross-examination, she stated
that her family was not in favor of the death penalty.
Eleven jurors voted in favor of the depravity-of-mind aggravating factor, and one voted against it. Because
aggravating factors must be found unanimously, that “no” vote served as the entire jury's rejection of the depravity-
of-mind factor. However, the jury unanimously found that the State had proven beyond a reasonable doubt the
felony-murder aggravating factor. A varying number of jurors found numerous mitigating factors. However, the
jury unanimously determined that the felony-murder aggravating factor outweighed the mitigating factors. The trial
court sentenced Koskovich to death on May 7, 1999.
Koskovich appeals to this Court as of right. The State has cross-appealed on two issues.
HELD: There were no errors during the guilt phase that warrant reversal of defendant's capital convictions. In the
penalty phase, however, the trial court's erroneous jury instructions in three areas - evaluation of the victim-impact
evidence, defendant's likely non-capital sentences, and the balancing of aggravating and mitigating factors -
collectively warrant reversal of defendant's death sentence.
1. The writings seized from Koskovich's bedroom, which referred to weapons and a willingness and desire to kill,
were admissible to prove motive and intent, given the State's theory that Koskovich murdered to experience the
thrill of killing. The gun magazines were relevant to establish Koskovich's experience and proficiency with
weapons, and that he intentionally and purposefully murdered the victims. Koskovich has not made the strong
showing of prejudice required to justify exclusion of the disputed evidence. (Pp. 23-37)
2. The prosecutor's suggestion in summation that there could have been a third homicide victim if another pizza
restaurant had agreed to deliver to Scott Road did not constitute prosecutorial misconduct. (Pp. 37-40)
3. The trial court's instruction on the “own conduct” requirement properly stressed that for defendant to be eligible
for the death sentence, the jury had to find unanimously that he committed the murder by his own conduct. It also
informed the jury that it need not be unanimous on the “own conduct” issue, and that if at least one juror found that
defendant did not commit the murder by his own conduct, then he would be sentenced to a term of life
imprisonment. (Pp. 40-51)
4. The trial court's instruction to the jury concerning its evaluation of the victim impact statement directed the jury
to balance the victim's background to that of Koskovich. This was akin to asking the jury to balance the worth of
Koskovich against the worth of his victim, and as such, impermissibly increased the risk that the death sentence
would be imposed arbitrarily. The Court agrees the claim raised by the State in its cross-appeal that it was error to
allow the mother of the victim to express her personal opposition to the death penalty. (Pp. 51-78)
5. The trial court stated to counsel, but not the jury, that if Koskovich did not get the death penalty, the court would
almost certainly impose consecutive sentences on the two murder convictions. The court should have informed the
jurors of its intent that Koskovich remain in prison for the remainder of his life so that the jury was fully informed
of the range of sentencing options. (Pp. 78-88)
6. The jury instruction on the consideration of aggravating and mitigating was flawed because it did not inform the
jurors that if the jury as a whole did not unanimously find an aggravating factor, no one juror could consider that
factor in balancing the remaining aggravating factor and the mitigating factors. (Pp. 89-103)
7. The Supreme Court rejects Koskovich's other challenges to his death penalty. The three errors in the trial court's
jury instructions during the penalty phase identified above collectively warrant reversal of Koskovich's death
sentence. Their combined effect was clearly capable of affecting the sentence. (Pp. 103-127)
Koskovich's capital and non-capital convictions are AFFIRMED. The death sentence is REVERSED and
the matter is REMANDED for a new penalty proceeding. Koskovich's proportionality claims are preserved.
JUSTICE ZAZZALI has filed a separate, concurring opinion, expressing the view that Koskovich's age,
viewed in the context of his stunted emotional development, his traumatic childhood, and his condition at the time
of the crime, raise the question whether the death penalty as applied to him is cruel and unusual punishment.
JUSTICE STEIN has filed a separate opinion concurring and dissenting, agreeing with the majority
opinion in all aspects except one; he is of the view that the victim impact statement prepared by the victim's mother
contained comments intended to appeal primarily to the jury's emotions, and should have been excluded.
JUSTICE COLEMAN has filed a separate opinion, concurring and dissenting, agreeing with the
majority's holding that Koskovich's convictions should be affirmed, but expressing the view that the decision to
vacate the death sentence because of alleged inadequate jury instructions concerning the use of a rejected
aggravating factor is misguided.
JUSTICE LONG has filed a separate opinion, concurring and dissenting, agreeing with the majority's
reversal of the death sentence, but expressing her disagreement with the conclusion that the issue of the
constitutionality of the death penalty has been resolved.
JUSTICE LaVECCHIA has filed a separate opinion, concurring and dissenting, agreeing with the
majority's conclusions concerning the guilt phase, but expressing the view that no reversible error occurred, either
individually or collectively, in the penalty proceeding.
JUSTICES STEIN, LONG and ZAZZALI join in JUSTICE VERNIERO's opinion. JUSTICE
ZAZZALI has filed a separate, concurring opinion, in which JUSTICE LONG joins. JUSTICE STEIN has
filed a separate opinion, concurring in part and dissenting in part. JUSTICE COLEMAN has filed a separate
opinion concurring in part and dissenting in part, in which CHIEF JUSTICE PORITZ and JUSTICE
LaVECCHIA join. JUSTICE LONG has filed a separate opinion, concurring in part and dissenting in part.
JUSTICE LaVECCHIA has filed a separate opinion concurring in part and dissenting in part, in which
CHIEF JUSTICE PORITZ and JUSTICE COLEMAN join.
SUPREME COURT OF NEW JERSEY
A-22/
23 September Term 1999
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
THOMAS J. KOSKOVICH,
Defendant-Appellant
and Cross-Respondent.
Argued September 26, 2000 -- Decided June 7, 2001
On appeal and cross-appeal from judgment of
conviction and sentence of death in the
Superior Court, Law Division, Sussex County.
Stephen W. Kirsch and Susan Brody, Assistant
Deputy Public Defenders, argued the cause
for appellant and cross-respondent (Ivelisse
Torres, Public Defender, attorney).
Bennett A. Barlyn, Deputy Attorney General,
argued the cause for respondent and cross-
appellant (John J. Farmer, Jr., Attorney
General of New Jersey, attorney).
The opinion of the Court was delivered by
VERNIERO, J.
In this capital case, defendant appeals his conviction and
death sentence, claiming numerous errors by the trial court in
both the guilt and penalty phases of trial. Further, he asserts
that absent any trial errors, the sentence is disproportionate
when compared to similar cases and should thus be vacated. We
affirm the capital and non-capital convictions but agree with
defendant that certain errors committed during the penalty phase
warrant reversal of the death sentence. In view of that
conclusion, we remand for a new sentencing proceeding and do not
address defendant's proportionality claims.
I.
A. The Burglary of the Sporting Goods Store
Defendant and Conklin drove past the police station and around Franklin to determine if any police officers were in the area. Conklin dropped defendant off at the store, parked the car at a nearby apartment complex, and waited for defendant's return. Defendant smashed the front window of the store with a baseball bat, smashed a display case, and removed three firearms, a .40 caliber semi-automatic pistol, a .22 caliber revolver, and a .45 caliber semi-automatic pistol. The .22 and .45 caliber weapons would later be used by defendant and a different friend to commit two homicides.
About twenty minutes after being dropped off, defendant returned to Conklin's location. Defendant entered the automobile and instructed Conklin to drive to a nearby laundromat. There, defendant hid the three guns under the hood of the car and changed his pants. Defendant and Conklin returned to Conklin's house, where defendant spent the night. The next morning defendant displayed the three guns to Conklin and gave him the .40 caliber semi-automatic pistol. Defendant placed the other two guns in a duffle bag and left Conklin's house.
Defendant and Vreeland left defendant's home in defendant's blue Chevrolet Cavalier, which had two distinguishing characteristics: a loud muffler and a damaged headlight. They proceeded to an abandoned house on Scott Road in Franklin and decided that they would try to have the pizzas delivered to that address. They then drove to a local Dunkin' Donuts to use the pay phone. Defendant and Vreeland called Tony's Pizza to order the pizzas, but quickly canceled that order after learning that Jeremy Giordano, an acquaintance of Vreeland, was on duty as the delivery person that evening. However, after several other restaurants refused to deliver to the remote Scott Road area, defendant and Vreeland called Tony's Pizza a second time and placed the order.
Defendant and Vreeland returned to Scott Road where defendant parked his car in such a manner as to aid in a quick retreat. He loaded the weapons, gave the .22 caliber revolver to Vreeland, and kept the .45 caliber semi-automatic pistol for himself. Defendant and Vreeland then waited at the curb in front of the abandoned house.
At approximately 10:45 p.m., twenty-two-year-old Jeremy Giordano and twenty-five-year-old Giorgio Gallara left Tony's Pizza to make the delivery, with Giordano driving his 1995 Pontiac Grand Am. Giordano approached the address on Scott Road with the passenger side of the Grand Am facing defendant and Vreeland. As Giordano's automobile approached the curb, Gallara lowered the window on the passenger side and asked for $16.50, the sum owed for the pizzas. Defendant turned to his right, looked at Vreeland, and asked him if he had the money, to which Vreeland answered, “yeah.” Defendant replied, “[n]o, never mind, I got the money[,]” and reached into his right jacket pocket. He then pulled out the .45 caliber semi-automatic pistol, aimed it at Giordano's automobile, and discharged the gun until it was empty, firing seven shots in rapid succession. Vreeland also fired his weapon into the car.
Giordano's vehicle rolled a short distance and stopped in a bushy, muddy area. Defendant and Vreeland ran to the automobile. Defendant opened the passenger-side door, grabbed Gallara by the jacket, and threw him face down on the ground. Defendant ran around the back of the automobile and similarly removed Giordano from the vehicle. At that point Vreeland yelled, “that's Jeremy, that's Jeremy.” Defendant did not recognize either victim. Defendant searched through the clothing of the victims looking for money. Defendant and Vreeland both entered the automobile and searched through the interior of the car, including the glove box.
Vreeland attempted to back the Grand Am out of the muddy area, but the tires spun and became stuck in the mud. Defendant yelled at Vreeland to forget about the vehicle so that they could leave. As they ran back toward defendant's automobile, defendant exclaimed, “I can't believe we did this. I can't believe we did this.” Vreeland replied, “I love you man,” and they hugged. Vreeland wore black gloves during the shooting and later discarded his blood-stained shirt into a stream.
Once in defendant's vehicle, Vreeland gave defendant the .22 caliber revolver and defendant put both guns under the driver's seat. After driving a short distance, defendant removed his blood-stained khaki pants and put on a pair of white jeans. Defendant drove to a Presbyterian church in Franklin, where he and Vreeland exited the vehicle, approached the front door, and made the sign of the cross. From the church, defendant and Vreeland returned to defendant's home. Defendant placed the two guns and his bloody pants in a gym bag and then put the bag under a pane of glass outside the house. Defendant gave Vreeland a shirt, and they went to a local bowling alley where they stayed a short time before returning to defendant's house. Defendant and Vreeland fell asleep and spent the rest of the night in defendant's home.
After hearing about the killings the next day, Christine Slater, a friend of defendant, contacted the police. The day before the homicides, defendant had shared with Slater his plan to kill a pizza delivery person. A resident of Scott Road who had seen defendant's automobile on Scott Road the evening of the murders also contacted the police after he observed the same vehicle parked at defendant's residence.
During the early morning hours of April 21, 1997, members of the State Police executed a warrant for defendant's arrest at defendant's home. The State Police transported defendant to a fire department parking lot across the street from his home and held him in custody until two officers from the Franklin Borough Police Department arrived. The Franklin officers informed defendant of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). The officers searched defendant and found a pouch containing twenty-six pills, which were later identified as Fiorcet (a prescription drug comprised of acetaminophen, caffeine, and a barbiturate). At the police station defendant signed a Miranda card acknowledging that he had been informed of his rights. The officers conducted an inventory search of defendant's person, finding twelve seeds that appeared to be marijuana and five ten- dollar bills in defendant's wallet.
Detective Jack Repsha of the State Police and Lieutenant Virgil Rome of the Sussex County Prosecutor's Office met with defendant. Detective Repsha informed defendant that he was under arrest and was being charged with the murders of Gallara and Giordano. Defendant was again informed of his constitutional rights by Lieutenant Rome, and he signed a second Miranda form waiving those rights. The two officers then interviewed defendant and he confessed to his role in the killings. After a short break, defendant agreed to record his statement. Defendant again waived his Miranda rights and gave a forty-six minute taped interview in which he confessed to the crimes.
In seeking the death penalty, the State informed defendant that it would establish that the murder of Giordano was outrageously or wantonly vile, horrible, or inhumane in that it involved depravity of mind, pursuant to N.J.S.A. 2C:11-3c(4)(c) (the “depravity-of-mind aggravating factor”), and that the murder was committed while defendant was engaged in the commission of a murder or robbery, pursuant to N.J.S.A. 2C:11-3c(4)(g)(the “felony-murder aggravating factor”). In accordance with N.J.S.A. 2C:11-3c, defendant was not eligible for the death penalty for the Gallara murder because he did not commit the homicidal act by his own conduct. (As revealed by the forensic evidence, Vreeland fired the fatal shot that caused Gallara's death.) Defendant pleaded not guilty to all charges. The guilt phase of defendant's trial was conducted from April 5, 1999, to April 23, 1999. The State presented overwhelming evidence of defendant's guilt. Jason Kelly, a friend of defendant, testified that prior to the commission of the homicides, he gave defendant bullets for a .45 caliber pistol at defendant's request. Christine Slater also testified. She informed the jury about her conversation with defendant in which defendant had stated that he wanted to join the Mafia and be a “hitman,” that he thought it would be easier to get into the mob if he killed someone, and that he wanted to be a Navy S.E.A.L. Defendant shared with Slater his plan to kill a pizza delivery person by having a pizza delivered to a remote area, which would allow defendant to kill the delivery person and steal that person's vehicle. Defendant also admitted to Slater that he had burglarized the sporting goods store.
Michael Conklin testified about the Adventure Sports burglary in addition to defendant's plan to rob and shoot a delivery person. (Defendant had apparently asked Conklin to participate in the robbery and shooting along with Vreeland.) Conklin also stated that following the killings, defendant bragged that he and Vreeland ordered a pizza for delivery to Scott Road and murdered the victims. Conklin also testified that after shaking defendant's hand, defendant asked him, “[H]ow does it feel to shake the hand of a killer[?]” That testimony was consistent with the State's theory that defendant committed the crimes to experience the “thrill” of killing.
The State also presented Scott Road resident Stephen Madden as a witness. Madden testified that on the evening of April 19, 1997, the date of the killings, sometime before 10:00 p.m., he observed a blue Chevrolet Cavalier with a loud muffler drive past his home. Madden also testified that he saw the same automobile drive past his home a second time about fifteen to twenty minutes later. The State presented the testimony of two other Scott Road residents who described seeing an automobile with a loud muffler and one headlight on Scott Road the night of the murders.
Several individuals who were present at Dunkin' Donuts on April 19, 1997, identified defendant as one of two young men they saw using the pay phone that evening. A telephone company representative testified that on that date, between 9:58 p.m. and 10:06 p.m., calls were placed from the Dunkin' Donuts pay phone to Tony's Pizza and other restaurants. The witness testified that a second call was placed to Tony's Pizza from the same phone. As corroborating witnesses, employees from Tony's Pizza and other restaurants testified about delivery orders that they had received that evening. An employee from one pizzeria testified that after he told the caller that he was unsure if his restaurant delivered to Scott Road, the caller became very persistent in trying to convince him to make the delivery (for example, the caller promised to give an extra tip for a completed delivery).
A patrolman from the Franklin Borough Police Department, the first officer to arrive on the scene, described finding Giordano's automobile as well as the two bodies lying on the ground and a large amount of blood outside and inside the automobile. A detective from the State Police testified about finding six spent .45 caliber shell casings on the road in front of the abandoned house, and one spent shell casing in the front passenger seat of the automobile.
Dr. Michael Dunne, the Sussex County Medical Examiner, conducted autopsies of the victims and testified about their injuries. Dr. Dunne described two wounds from the bullets that entered the right side of Giordano's neck and exited the left side, explaining that those bullets killed Giordano instantly. Dr. Dunne also found two entry wounds in Giordano's left knee and recovered two .45 caliber bullets from the knee. Because the wounds in Giordano's neck and knee were similar, Dr. Dunne concluded that Giordano had been struck in both locations with .45 caliber bullets. Gallara suffered five gunshot wounds, including a graze wound across his nose, two wounds on his right elbow, and a wound on the right side of his face made by a large caliber bullet. Dr. Dunne concluded that a .22 caliber bullet that entered the back of Gallara's head was the fatal shot.
The State also presented evidence recovered from defendant's home during the early morning hours of April 21, 1997. The police found five strips of paper taped to the wall above a coat hook in defendant's bedroom. Those papers contained these handwritten words: “Weapon's spot. Anyone else, we all kill you. Joe's spot. Anybody else, he kill you too. Tom's spot. Anybody else, he kill you too. Jason's spot, anybody else, I kill you. Cocoa Puff's spot, I'll kill you.”
The police also seized two empty .22 caliber cartridge boxes, a gym photo identification card of Gallara, fourteen gun magazines, a price list for crime-related items (such as fake I.D. cards and literature promoting credit card fraud), and violent writings that appeared to be song lyrics. A detective from the prosecutor's office read the lyrics to the jury: “About killing, people, you can kill by [illegible]. On by guns, one night you break in, somebody home. And you take their money and kill by drive [illegible] down the road and shout, and shouting. By the big heads. The Best.”
Outside the house, near the front porch, the police recovered a bag that contained the .45 caliber semi-automatic pistol, the .22 caliber revolver, and blood-stained khaki pants. The police also recovered other bags that contained clothes, paperwork, an empty wallet later identified as Gallara's, and a pair of black gloves.
The State presented a DNA expert who testified that she found a match between Giordano's blood and the blood on the khaki pants seized from outside defendant's home. The expert further explained that she found a match between blood located on defendant's coat, which he was wearing when arrested, and the blood of Giordano and Gallara. The expert also testified that Gallara was the dominant contributor to blood found on the black gloves.
The State also produced evidence recovered from a stream near Scott Road, including a shirt, receipts from Tony's Pizza, a guest check, an identification card with Gallara's name on it, and Gallara's driver's license. Detective Repsha testified regarding defendant's statement that chronicled his actions. The jury also heard the audio tape of that statement, in which defendant confessed his role in the killings.
Defense counsel presented the testimony of several witnesses, including Jason Kelly, defendant's friend, who testified that the strips of paper taken from defendant's bedroom were a joke based on the movie “Stripes.” Florence Morgan, Conklin's mother, testified that she saw defendant at approximately 8:00 p.m. on April 19, 1997, the night of the murders, and that he seemed anxious and nervous. Kimberly Prestidge, defendant's girlfriend, testified that when defendant and Vreeland returned to defendant's home at approximately 11:30 p.m. on April 19, 1997, they were “wrecked” and “falling all over the place.” Prestidge also testified that after defendant and Vreeland returned to defendant's home, she found a five dollar bill in Vreeland's wallet, that there had not been any bills in his wallet earlier in the day, and that the next morning she saw that Vreeland had $170. Defendant himself did not testify.
The defense also presented the testimony of Dr. Frederick Rotgers, an expert in clinical psychology with particular expertise in substance abuse. Dr. Rotgers found no evidence that defendant had any severe mental illness, psychosis, or depression. However, Dr. Rotgers detailed defendant's history of drug and alcohol abuse, especially defendant's use of Fiorcet. The expert concluded that defendant had a substance-abuse disorder, that at the time of the offenses he was under the influence of Fiorcet, and that, based on defendant's use of that drug, his capacity to commit the offenses knowingly and purposely was significantly diminished.
In rebuttal, the State called Dr. Azariah Eshkenazi, an expert in forensic psychiatry, to testify. Dr. Eshkenazi disagreed with Dr. Rotgers's conclusion, noting that defendant's memory of the events was excellent. Dr. Eshkenazi concluded that defendant's ability to act with knowledge and purpose was not affected by his use of Fiorcet.
The jury found defendant guilty of purposeful or knowing murder of Giordano, felony murder of Giordano, purposeful or knowing murder of Gallara, felony murder of Gallara, first-degree robbery, and possession of a firearm for an unlawful purpose. The jury also convicted defendant on the burglary and theft charges related to the crimes committed at the sporting goods store.
Jayson Vreeland was tried separately. The State did not seek the death penalty against Vreeland because he was a juvenile at the time of the murders. N.J.S.A. 2C:11-3g.
In response, defense counsel produced numerous witnesses in support of certain mitigating factors enumerated by statute and available under the statutory “catch-all” provision. (For convenience, we omit the specific citations to the mitigating factors and note that the complete listing of those factors can be found at N.J.S.A. 2C:11-3c(5)(a) to (g). The “catch-all” factor, found at N.J.S.A. 2C:11-3c(5)(h), provides that a defendant may introduce “[a]ny other factor which is relevant to the defendant's character or record or to the circumstances of the offense.”)
Lois Nardone, a social worker and “mitigation specialist,” provided extensive testimony concerning defendant's family and background. She testified that defendant's family was plagued by domestic violence, infidelity, substance abuse, gambling, criminal behavior, and suicide attempts. Nardone expressed the opinion that defendant was raised in a home without boundaries or structure and that defendant did not have a positive male role model in his life. Nardone asserted that defendant was subjected to emotional neglect and abuse by his family and that he experienced feelings of abandonment and rejection when his mother and father left him to be raised by his grandparents. Nardone also expressed her view that defendant's suicide attempt, which occurred when defendant was awaiting trial in the Sussex County Jail, illustrated the remorse that defendant felt about the killings. Defendant's father, Stephen Koskovich, chronicled his family's problems and recounted an occasion on which he told defendant he loved him the least of his three sons. Robert Kelly, the father of defendant's friend Jason Kelly, recalled how defendant was a trusted family friend who assisted him and his family when he suffered from cancer. April Kelly, Robert's wife, also described how defendant helped the Kelly family. Leonard Koskovich, defendant's uncle, who described himself as “a menace to society,” explained to the jury how he had spent most of his life in prison. He also testified to defendant's disruptive, unhealthy upbringing.
Dr. Edward Dougherty, an expert in forensic psychology, testified that defendant was mentally ill, had a tenuous grasp on reality, and was a developing paranoid schizophrenic. Dr. Gary Glass, an expert in forensic psychiatry, concluded that defendant was mentally ill, was a developing paranoid schizophrenic, and further stated that defendant was affected by mental and emotional disturbances on the date of the crimes.
In rebuttal, the State called Investigator Gary Sandberg of the Sussex County Prosecutor's Office, who testified about a conversation he had with James Stalter, an inmate confined in the cell next to defendant's at the Sussex County Jail. Stalter told Sandberg that defendant stated to Stalter that he (defendant) would rather commit suicide than go to prison because he was afraid of prison.
Timothy Cooney, also of the prosecutor's office, testified about a discussion between himself and defendant's grandmother, Bertha Lippencott, who had been the focus of much of the negative testimony provided by the mitigation specialist, defendant's father, and defendant's uncle. Cooney explained how Lippencott criticized the specialist's report, labeling it “fiction.” On cross-examination, Cooney observed that Lippencott cooperated with the State because she was concerned about her reputation and did not want to be blamed for the murders.
Mrs. Giordano, the victim's mother, read a victim-impact statement in which she described her family's feelings about the loss of Jeremy and the impact that it had on their lives. On cross-examination, Mrs. Giordano stated that her whole family “would most like to see Thomas Koskovich take the evil that he's done, [and] turn his life over to Christ[.]” Mrs. Giordano elaborated that “[w]e are not in favor of the death penalty. I would like the jury to evaluate everything according to what they feel is their job to do according to the laws . . . [and] according to how they feel that they have to answer to their God.” Defendant declined to make an allocution to the jury.
The jury returned its verdict on May 7, 1999. Eleven jurors voted in favor of the depravity-of-mind aggravating factor, and one juror voted against it. Because aggravating factors must be found unanimously, that one juror's “no” vote served as the entire jury's rejection of the depravity-of-mind factor. However, the jury unanimously found that the State had proven beyond a reasonable doubt the felony-murder aggravating factor.
In consideration of the mitigating factors proffered by defendant, ten jurors found defendant's age at the time of the murder to be a factor. Five jurors similarly found that defendant lacked a significant prior criminal record.
Concerning the catch-all factors, a varying number of jurors found numerous mitigating factors. Twelve jurors found that defendant experienced a significant sense of abandonment and rejection after his father left the family when defendant was about ten years old. The jurors concluded that that rejection further deepened when his mother left him at the age of thirteen to live with her boyfriend. Twelve jurors found that defendant was raised in a home in which infidelity, violence, substance abuse, gambling, criminal activity, and suicide attempts were pervasive. Four jurors found that defendant began abusing drugs at age thirteen as a means of self-medication to deal with his long history of untreated depression. Twelve jurors found that defendant was raised in a home without boundaries, structure, or positive role models. Twelve jurors found that defendant was subjected to emotional abuse and neglect at the hands of his family. Eleven jurors found that defendant was under the influence of a mental or emotional disturbance. Lastly, two jurors found that defendant's ability to appreciate the wrongfulness of his conduct was impaired as a result of intoxication.
The jury unanimously rejected the following mitigating factors: that defendant was under the influence of extreme mental or emotional disturbance that was insufficient to constitute a defense to prosecution; that defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired as a result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution; that defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of intoxication but not to a degree sufficient to constitute a defense to prosecution; that defendant was remorseful as evidenced by his suicide attempt while awaiting trial; and that defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution.
The jury unanimously determined that the felony-murder aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Accordingly, the trial court sentenced defendant to death in a judgment of capital conviction filed May 7, 1999. We note for completeness that the trial court's original judgment provided that if defendant's death sentence was not implemented by May 7, 2004, his sentence would be automatically modified to a life sentence with a thirty-year period of parole ineligibility. On the State's motion, with no opposition from defendant, this Court summarily amended the judgment to remove that modification. State v. Koskovich, 161 N.J. 144 (1999).
In respect of the robbery committed against Giordano and Gallara, the trial court sentenced defendant to twenty years imprisonment with ten years of parole ineligibility. For the possession of a weapon for an unlawful purpose conviction, defendant was sentenced to ten years imprisonment with five years of parole ineligibility. For the murder of Gallara, defendant was sentenced to prison for life with thirty years of parole ineligibility.
The trial court also sentenced defendant for his other crimes. For the burglary of the sporting goods store, defendant was sentenced to five years imprisonment with three years of parole ineligibility. For the theft at the store, defendant was sentenced to five years imprisonment, with two and one-half years of parole ineligibility, which was made consecutive to the burglary sentence. In sum, the trial court sentenced defendant to an aggregate non-capital sentence of life imprisonment plus forty years, with a fifty and one-half year period of parole ineligibility.
Defendant appeals to this Court as of right under Rule 2:2- 1(a).
Defendant asserts that he was denied a fair trial because of numerous errors during the guilt phase. We conclude that no claim of error warrants reversal of defendant's capital conviction. We will address each claim separately, starting with defendant's assertions regarding the admission of evidence seized from his bedroom shortly after the crimes occurred.
Defendant argues that the trial court erred in admitting certain evidence seized by investigators from his bedroom shortly after the homicides. As noted, that evidence included the five strips of paper, gun magazines, a price list for crime-related items, and violent writings that appeared to be song lyrics. We will summarize the arguments of the parties in respect of each piece of evidence, starting with the paper strips.
At trial, defendant objected to the admissibility of the strips of paper found over the coat hooks, arguing that they were irrelevant and that the handwriting had not been properly authenticated. According to defendant, he placed the signs over the coat hooks so that his friends would know where to hang their coats. He asserts that the handwritten language derived from a scene in the movie “Stripes,” in which one character jokingly threatens to kill anyone who touches his belongings.
The trial court admitted the paper strips. The police officer who seized the strips testified that he believed them to be relevant because they contained the word “kill.” The court noted,
we're dealing in this case with a young man who is alleged to have rather, for no real purpose, except possibly establishing himself by reputation as a criminal, if that can be considered a purpose, who for no good purpose supposedly shot and killed some people. And I guess this is trying to show some type of background that he had the mentation to kill people. It's open to a lot of argument both ways, but it seems to me appropriately probative. The State can try to show this as [an] indication of a mindset.
Outside the presence of the jury, the State moved to offer into evidence the gun magazines seized from defendant's bedroom to corroborate testimony about defendant's familiarity with guns and to refute the notion that the gun he ultimately used might have been fired accidentally. Defense counsel objected, arguing that the magazines, which contained such titles as “Combat Handguns,” “Handgunning,” and “Guns and Weapons,” were highly prejudicial. Counsel also argued to the trial court that “the fact that [defendant] looks at guns, enjoys guns really is not an aspect in this case.”
The court agreed with the State, admitting the magazines. The court found that defendant's interest in guns “could be part of showing a familiarity with the weapons and ability to use them.” Subsequent to its initial ruling, the court agreed to limit the admission to photocopies of the magazines' covers.
The State also offered into evidence a piece of lined notebook paper that listed prices for a number of crime-related items, including fake identification materials and literature promoting credit card fraud. The State contended that such evidence was probative of a mindset of someone embarking on a life of crime. Defense counsel objected on the grounds that the price list would be used solely to show that defendant was a bad person who thought about illegal things. The trial court admitted the evidence, essentially accepting the State's basis for admission.
The trial court also admitted the song lyrics into evidence. Defense counsel objected, arguing that the lyrics had no probative value. In agreeing with the State, the trial court admitted the evidence because it “bespeak[s] a concern that, an involvement, sort of obsession with killing people, and we are dealing with a man who's alleged to have killed other people.”
In reviewing the admissibility of each of the disputed items, we must determine whether such evidence was relevant to any fact attempted to be proved or disproved by the State. All relevant evidence is admissible at trial unless prohibited by a specific rule. State v. Wilson, 135 N.J. 4, 13 (1994). N.J.R.E. 401 defines relevant evidence as “having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” To be relevant, evidence must have “probative value, which is the tendency of the evidence to establish the proposition that it is offered to prove.” Wilson, supra, 135 N.J. at 13. In determining whether evidence satisfies that standard, courts focus on the “logical connection between the proffered evidence and a fact in issue[.]” State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). “If the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted[.]” State v. Covell, 157 N.J. 554, 565 (1999).
Applying those tenets, we are satisfied that the admitted evidence was relevant and, therefore, admissible. Each of the disputed items was offered to help prove that defendant killed the victims knowingly or purposefully, and to prove the motive of defendant advanced by the State, specifically, that defendant killed the victims to experience the “thrill” of killing or to establish his reputation as a criminal. The trial court properly admitted the paper strips and song lyrics because they were sufficiently probative of defendant's motive, in that they revealed defendant's obsession with, or at least interest in, killing. As the trial court stated, the paper strips could be interpreted in various ways. Additionally, a defense witness testified about the “innocent” nature of the strips. In a case like this, however, in which the State's basic theory is that defendant murdered his victims to experience the thrill of killing, the paper strips and song lyrics, which referred to weapons and a willingness and desire to kill, are probative of defendant's motive.
Likewise, the gun magazines were relevant because they helped to establish that defendant intentionally and purposefully murdered the victims and understood that by shooting them, death would result. This Court has never held that gun paraphernalia is per se irrelevant. State v. Loftin, 146 N.J. 295, 383 (1996). In Loftin, the defendant objected to the admission into evidence of certain gun paraphernalia, including bullets, ammunition, and ammunition-making equipment. Ibid. We explained that testimony about that type of evidence supported an inference “of the knowledge, competency, and experience of defendant in handling firearms. Such evidence is significant to show that defendant intended to kill [the victim] when he shot him in the head, and that the shot was not the result of an accidental discharge caused by an inexperienced marksman.” Id. at 384.
Similarly, in the present case, the State offered the gun magazines not only to show that defendant was interested in guns, but also to demonstrate defendant's experience and proficiency with weapons, which helped prove that the shooting of Giordano and Gallara was purposeful and knowing. Finally, the trial court properly admitted the price list for the crime-related items. The list was relevant to show defendant's familiarity with certain crimes and to demonstrate his overall criminal motive and intent.
In this appeal, defendant argues for the first time that the objects seized from his bedroom were impermissibly admitted into evidence in violation of N.J.R.E. 404(b). N.J.R.E. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Specifically, defendant contends that the seized items represented “other-conduct” evidence (evidence of conduct that is not overtly criminal in nature but nonetheless wrong or improper), which was impermissibly used to show his propensity to commit a crime. In response, the State claims that N.J.R.E. 404(b) is not implicated by the items seized from defendant's bedroom, and that, regardless, any error regarding the admissibility of that evidence was harmless because of the other strong evidence produced at trial. The State makes a legitimate argument that the items at issue do not represent “other wrongs” as contemplated by N.J.R.E. 404(b), and thus no analysis is required under that rule. Nonetheless, given that there is at least some basis to consider the implication of N.J.R.E. 404(b), we will address defendant's claims.
Evidence of a defendant's other crimes, wrongs, or acts may not be admitted into evidence to prove a defendant's criminal disposition as a basis for proving guilt of the crimes charged. State v. Covell, supra, 157 N.J. at 563; see also State v. Nance, 148 N.J. 376, 386 (1997) (observing that “courts should exclude evidence of other crimes, civil wrongs, or acts enumerated in the . . . rule when such evidence is offered solely to establish the forbidden inference of propensity or predisposition”). Importantly, Rule 404(b) does allow such evidence to be admitted to prove other factual issues, like a defendant's motive, intent, or plan. Covell, supra, 157 N.J. at 563.
Although not overtly criminal in nature, the disputed evidence in the present case was admitted to show both defendant's intent and his motive for the killings. In State v. Cofield, 127 N.J. 328, 338 (1992), this Court established a four- pronged test to determine when “other-crime” evidence is admissible under N.J.R.E. 404(b). The same four-part test is used to determine whether “other-conduct” evidence should be admitted. Nance, supra, 148 N.J. at 387. The test is as follows:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
Courts have frequently admitted other-crime and other- conduct evidence as probative of intent and motive. For example, in State v. Covell, supra, 157 N.J. at 558, the defendant was convicted of child luring in violation of N.J.S.A. 2C:13-6. The Court reasoned that the defendant's statement that he was sexually attracted to young girls was properly admitted at trial and satisfied the first prong of the Cofield test because the “defendant's purpose in luring [the victim] is an essential element to convict defendant[.]” Id. at 567. Specifically, the defendant's statement made “it more likely that defendant's purpose in beckoning to [the victim] was to commit a sexual crime with or against her.” Id. at 566-67.
In State v. Erazo, 126 N.J. 112, 117 (1991), the defendant was convicted of capital murder. On the evening of the charged murder, the defendant made certain statements about a prior murder he had committed and for which he had been convicted. The defendant challenged the admission of those statements, as well as the admission of the records of that prior conviction. Id. at 130. The Court found that the
[d]efendant's statements evidence his state of mind at the time he killed [the victim]. . . . They were relevant to whether defendant had killed [the victim] purposely or knowingly[.] Thus, defendant's statements related to the crucial issue of his mental state. The records of defendant's convictions . . . were necessary to prove the State's theory of defendant's motive.
In this case, the State's theory was that defendant purposefully or intentionally murdered Giordano and that his motive for doing so was to experience the “thrill” of killing. In that regard, we are satisfied that the evidence taken from defendant's bedroom was relevant to demonstrate defendant's intent. We note that the evidence was not admitted to prove that defendant was a “bad person.” Rather, the fact that defendant had a long-standing interest in firearms and violence indicates that he fired his weapon intentionally, not accidentally.
Moreover, defendant's familiarity with firearms tends to prove that he understood that when he fired his weapon at the victims, death would result. The references to killing and death on the paper strips and in the song lyrics helped to reveal defendant's motive and helped the jury to understand, to some degree, defendant's state of mind. Lastly, the evidence admitted in this case was somewhat analogous and similar in nature to the evidence admitted in State v. Covell, State v. Erazo, and State v. Crumb. The first prong of the Cofield test has been satisfied. The second prong of the Cofield test requires that the other-conduct evidence be similar to, and reasonably close in time to, the offense charged. State v. Covell, supra, 157 N.J. at 567. We conclude that the disputed evidentiary items, all of which relate to guns, violence, killings, or other forms of criminal conduct, were sufficiently similar in nature to the crimes for which defendant was charged. Although the violent writings and the other items do not compare perfectly to an actual killing or robbery, we find that there is a logical connection between that evidence and the crimes charged sufficient to satisfy Cofield's second prong. Moreover, the temporal requirement under the second prong is satisfied because the items were recovered from defendant's bedroom shortly after the killings and thus were reasonably close in time to the offenses charged.
The third prong of the Cofield test “requires some showing that the person against whom the evidence is being used actually committed the other crime or wrong.” State v. G.V., 162 N.J. 252, 275 (2000) (Coleman, J., concurring in part and dissenting in part). That prong is satisfied here because there is no serious dispute that the items recovered from defendant's bedroom belonged to defendant. Moreover, the jury could have reasonably interpreted items like the language found on the paper strips or the violent song lyrics to be an expression of defendant's intent to kill. See State v. Covell, supra, 157 N.J. at 568 (“Although being sexually attracted to young girls in and of itself is not a crime, a jury may interpret defendant's expression of those feelings to be a wrong or bad act in relation to his intent. . . . We find that the statement satisfies part three of the Cofield test.”).
The fourth prong of the Cofield test requires application of the balancing test contained in N.J.R.E. 403. That test requires the trial court to exclude evidence if “'its probative value is substantially outweighed by the risk of . . . undue prejudice.'” State v. Covell, supra, 157 N.J. at 568 (citation omitted). Evidence claimed to be unduly prejudicial is excluded only when its “probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation” of the issues in the case. State v. Thompson, 59 N.J. 396, 421 (1971). Moreover, “[t]he mere possibility that evidence could be prejudicial does not justify its exclusion.” State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied, ___ U.S. ___, 121 S. Ct. 1380, ___ L. Ed.2d ___ (2001). Additionally, certain types of evidence, including evidence of motive or intent, “require a very strong showing of prejudice to justify exclusion.” State v. Covell, supra, 157 N.J. at 570.
Two prior cases are instructive. In State v. Loftin, supra, 146 N.J. 383-86, this Court considered whether ammunition and bullet-making equipment should have been admitted into evidence at the defendant's trial. Acknowledging that the evidence may have prejudiced the defendant, the Court permitted it nonetheless. “'[T]hat evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof.'” Id. at 385 (quoting State v. Stevens, 115 N.J. 289, 308 (1989)).
Likewise, in State v. DiFrisco, 137 N.J. 434