State v. Timmendequas

STEIN, J.,

concurring in part and dissenting in part.

I join in that portion of the Court’s opinion that sustains defendant’s capital-murder conviction. I conclude, however, that defendant’s sentence should be set aside and the case remanded for a new penalty-phase trial. Under settled New Jersey law, evidence that a capital defendant had been convicted of similar offenses ordinarily would be inadmissible. If such evidence were to be admitted because it was germane to a material disputed issue in the trial, our cases mandate that the trial court instruct the jury in unmistakably clear terms about the permitted and prohibited uses of such other-crime evidence. Under our capital-punishment statute, a defendant’s conviction of prior offenses, *641except for murder, does not constitute a statutory aggravating factor and cannot be considered by the jurors deliberating on whether defendant lives or dies. The jurors deliberating in this penalty-phase trial did not know that. Ten of those jurors, however, knew that defendant had prior convictions and nine jurors believed that he had previously been convicted of sexual offenses. Notwithstanding that knowledge, defense counsel did not request and the trial court did not deliver a clear instruction informing the jury that they were absolutely prohibited from considering defendant’s prior convictions in determining whether defendant should be sentenced to death. I regard the trial court’s omission of that instruction to constitute plain error that requires reversal of defendant’s death sentence because the error was “clearly capable of producing an unjust result.” R. 2:10-2.

I

A

The unique feature of this death-penalty trial is that the selection of a jury that did not know that defendant had prior convictions for sex-related offenses would have been virtually impossible. As a direct result of the sexual assault and murder in July 1994 of defendant’s victim, Megan Kanka, the New Jersey Legislature enacted in October 1994 the Registration Law, L. 1994, c. 133, and the Community Notification Law, L. 1994, c. 128, generally referred to as “Megan’s Law,” requiring the registration by and community notification of relevant information concerning prior sex offenders. The impetus for the enactment of Megan’s Law was the discovery by law enforcement officials, subsequent to the murder of Megan Kanka, that defendant, who lived on the same street as the Kanka family, had prior convictions for sex-related offenses and that that information had never been communicated by police to residents in the neighborhood.

On the first day of jury selection the trial court provided prospective jurors with an overview of the case and informed them *642that it involved the sexual assault and murder of a seven-year-old girl named Megan Kanka. The jurors also were provided with a detailed questionnaire that included questions about the jurors’ knowledge of Megan’s Law, their belief or suspicions concerning defendant’s criminal record, and whether jurors could disregard any such belief or suspicion so that it would not interfere with their ability to decide the case fairly and impartially.

Of 332 prospective jurors questioned by the court and counsel, only five jurors disclaimed any knowledge that defendant had a prior criminal record, and sixty-six jurors stated that despite their belief or suspicion about defendant’s record they could decide the case impartially. Of the twelve jurors that actually deliberated, ten jurors knew or suspected that defendant had a prior record and nine jurors suspected that defendant’s prior record included a conviction for a sex-related offense.

B

There being no dispute that a clear majority of defendant’s jurors believed or suspected that defendant had prior convictions for sex-related offenses, the critical question is how the trial court should have dealt with that fact in its instructions. That the jurors learned of defendant’s prior record through the massive publicity about the homicide and Megan’s Law rather than through evidence offered at trial is immaterial. In Marshall v. United States, 360 US. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), addressing a similar context in which a jury learned of the defendant’s prior convictions through newspaper accounts, the Court observed:

We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution’s evidence. It may indeed be greater for it is then not tempered by protective procedures.
[Id. at 312-13, 79 S.Ct at 1173, 3 L.Ed.2d at 1252 (citations omitted.) ]

*643That evidence of defendant’s prior convictions would have been inadmissible if offered into evidence by the State is incontestable. Evidence Rule 404(b), the successor to former Evid. R. 55, provides as follows:

(b) Other crimes, wrongs, or acts. 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.

That evidence rule “perpetuate[s] New Jersey’s long-standing common-law rule that excluded other-crimes evidence when offered solely to prove a defendant’s propensity to commit crime.” State v. Stevens, 115 N.J. 289, 299, 558 A.2d 833 (1989). Underlying both the Rule and its common-law antecedents “is the recognition that other-crime evidence may simultaneously be highly probative and extremely prejudicial.” Id., at 300, 558 A.2d 833. Notwithstanding its probative value, other-crime evidence offered solely to prove predisposition to commit crime is excluded under the Rule, as it was at common law. Ibid. Accord State v. G.S., 145 N.J. 460, 468, 678 A.2d 1092 (1996).

Pursuant to the Rule, other-crime evidence is admissible to prove other facts in issue. The examples set forth in the Rule of the kind of facts to which other-crime evidence may be germane— such as motive, opportunity, intent, plan, identity, or absence of mistake — are not intended to be exclusive. Stevens, supra, 115 N.J. at 300, 558 A.2d 833. But there is absolutely no suggestion in this record that defendant’s prior sex-related offenses, which occurred in 1980 and 1982, could have been relevant to any material issue in dispute in this prosecution.

Because of the acknowledged inflammatory characteristics of other-crime evidence, even if such evidence is relevant to a material issue in dispute our eases “mandate[] a careful and pragmatic evaluation by trial courts, based on the specific context in which the evidence is offered, to determine whether the probative worth of the evidence outweighs its potential for undue *644prejudice.” Id. at 303, 558 A.2d 833. Accord State v. Marrero, 148 N.J. 469, 482-83, 691 A.2d 293 (1997); State v. G.S., supra, 145 N.J. at 468-69, 678 A.2d 1092; State v. Cofield, 127 N.J. 328, 336, 605 A.2d 230 (1992).

Finally, even in criminal prosecutions in which other-crime evidence is found to be admissible because its probative value exceeds its prejudicial effect, a court nevertheless must instruct a jury on the limited purpose for which such evidence may be used. Evidence Rule 105 provides:

When evidence is admitted as to one party or for one purpose but is not admissible as to another party or for another purpose, the judge, upon request, shall restrict the evidence to its proper scope and shall instruct the jury accordingly but may permit a party to waive a limiting instruction.

In providing such a limiting instruction, courts must appreciate that for an average juror compliance with an instruction that permits the jury to consider other-crime evidence for one purpose but not for another is extremely difficult. Accordingly, in insisting that such limiting instructions be provided, we have urged trial courts that any such instruction “should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.” Stevens, supra, 115 N.J. at 304, 558 A.2d 833. But this Court’s recent decisional law concerning other-crime evidence emphasizes that a clear limiting instruction is essential to avoid misuse by the jury of such evidence. Marrero, supra, 148 N.J. at 495, 691 A.2d 293; G.S., supra, 145 N.J. at 472, 678 A.2d 1092; State v. Oliver, 133 N.J. 141, 157-58, 627 A.2d 144 (1993) (affirming reversal of defendant’s sexual assault convictions primarily because of inadequacy of limiting instruction on use of other-crime evidence); Cofield, supra, 127 N.J. at 341, 605 A.2d 230 (reversing defendant’s convictions on drug-related offenses because of inadequacy of limiting instruction on use of other-crime evidence).

State v. Brunson, 132 N.J. 377, 625 A.2d 1085 (1993), reflects this Court’s concerns about the admissibility of evidence of other *645crimes that are similar in nature to the offense for which the defendant is being tried. Brunson involved an application of this Court’s decision in State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978), in which we held that whether evidence of a prior conviction may be admitted to impeach the credibility of a testifying criminal defendant is a decision that rests within the sound discretion of the trial court. The defendant in Brunson was charged with drug offenses, and the trial court ruled that if defendant testified, evidence of his prior conviction for similar drug offenses would be admissible. The defendant declined to testify and was convicted of the charged offenses. Reversing, we held that if a defendant’s prior convictions are for crimes similar to the charged offense, the State may introduce as evidence to impeach the defendant’s credibility only the degree of the prior crime and the date of the offense, but must exclude any evidence of the specific crime of which defendant was convicted.

We explained:

That method of impeachment will insure that a prior offender does not appear- to the jury as a citizen of unassailable veracity and simultaneously will protect a defendant against the risk of impermissible use by the jury of prior-conviction evidence. The balance struck adequately vindicates the State’s interest in using the prior conviction to cast doubt on the defendant’s credibility without subjecting defendant “to the extraordinary prejudice that follows if the prior crime was specifically named or described.” Pennington, supra, 119 N.J. at 607, 575 A.2d 816 (Handler, J., concurring in part, dissenting in part). “The difference between lack of credibility as a repetitive felon and lack of credibility as a repetitive car thief was negligible to the prosecution, catastrophic to the accused.” Bendelow v. United States, 418 F.2d 42, 53 (5th Cir.1969) (Godbold, J., concurring in part, dissenting in part), cert. denied, 400 U.S. 967, 91 S.Ct. 379, 27 L.Ed.2d 387 (1970).
[Id. at 391-92, 625 A.2d 1085.]

II

Because of the notoriety of defendant’s crimes and the publicity that accompanied the enactment of Megan’s Law, the jury’s awareness of defendant’s prior convictions for sex-related offenses was virtually unavoidable. The trial court had no opportunity to consider whether evidence of defendant’s prior sex-related convictions was material to any issue in the case, or whether the *646prejudicial effect of such evidence outweighed its probative value. If that opportunity had been afforded the trial court, evidence of defendant’s prior convictions unquestionably would have been excluded from the trial. Because defendant did not testify, and the only possible relevance of the prior convictions could have been as impeachment evidence, we can be certain that the trial court would have excluded evidence of defendant’s convictions. However, under the unique circumstances of this capital prosecution, the jury’s exposure to information about defendant’s prior convictions of sex-related offenses could not be prevented. The only means available to the trial court to remediate the unavoidably prejudicial effect of the jury’s knowledge about defendant’s prior convictions was to instruct the jury in the clearest and strongest terms that those prior convictions could not be considered by the jury in its deliberations on defendant’s guilt and sentence. The failure of the trial court to provide such a limiting instruction arises as one of plain error because trial counsel apparently did not request such an instruction, and therefore reversal is required only if the error is “clearly capable of producing an unjust result.” R. 2:10-2.

I conclude that the trial court’s failure to instruct the jury in the guilt phase of the trial to exclude from consideration in their deliberations knowledge of defendant’s prior convictions constituted harmless error. The evidence of defendant’s guilt fairly can be described as overwhelming, and in that context the trial court’s omission of an instruction about defendant’s prior convictions was not clearly capable of producing an unjust result. In other circumstances we have concluded that deficiencies in limiting instructions about the use of other-crime evidence constituted harmless error. See Marrero, supra, 148 N.J. at 495-97, 691 A.2d 293; G.S., supra, 145 N.J. at 473-76, 678 A.2d 1092; Stevens, supra, 115 N.J. at 308-09, 558 A.2d 833.

In the penalty phase, however, the omission of an instruction to the jury prohibiting its consideration of defendant’s prior convictions in determining defendant’s sentence cannot be regarded as *647harmless error. We addressed an analogous issue in State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988), a capital prosecution in which the State alleged as aggravating factors that defendant had murdered a police officer engaged in the performance of his duty, N.J.S.A. 2C:ll-3e(4)(h), that the murder was committed for the purpose of escaping detection for another offense, N.J.S.A. 2C:11-3c(4)(f), and that the murder involved an aggravated battery to the victim, N.J.S.A. 2C:ll-3c(4)(c). In the Rose penalty phase, after the jury convicted defendant of knowing or purposeful murder by his own conduct, defendant called expert witnesses to testify about the defendant’s mental and emotional condition at the time of the homicide, and character witnesses to offer mitigating testimony concerning defendant’s good character. On cross-examination of both the expert and character witnesses, the prosecutor questioned the witnesses in detail about prior “bad acts” of defendant, including questions about instances in which he allegedly had assaulted former girl Mends, instances of threatened violence against black youths, and instances of disciplinary infractions in high school, in the army and in prison. We took note of the inflammatory nature of that cross-examination and cautioned trial courts that because of the strong possibility of prejudice to the defendant, close supervision of such cross-examination was essential. Id. at 504-05, 548 A.2d 1058. However, we held that the trial court’s failure to instruct the penalty-phase jury on the limited relevance of the prior-bad-aet evidence elicited by the prosecutor during cross-examination required reversal of defendant’s death sentence.

We explained in detail the reasons for our conclusion:

We need not resolve the question whether defense counsel made sufficiently clear their request for a limiting instruction concerning this testimony, although it is self-evident that on an issue of such critical importance there should be no cause for understatement or ambiguity. We hold, in view of the repetitive and highly inflammatory quality of the evidence of defendant’s past misconduct that came before the jury in the penalty phase, both derivatively through the guilt phase and in the cross-examination of defendant’s penalty phase witnesses, that the trial court’s failure to instruct the jury on the limited relevance of this evidence was so clearly prejudicial that it requires defendant’s death sentence to be set aside.
*648We have already reviewed in detail the evidence of defendant’s past conduct to which the jury was exposed in both the guilt and penalty phases of the case. During the guilt phase the jury heard evidence of defendant’s apparent racially-tinged motivation for purchasing the sawed-off shotgun as well as evidence of defendant’s defiant possession and thi-eats to use the shotgun during the schoolyard incident. Supra at 473, 483-87 [548 A.2d 1058]. On the prosecutor’s motion, this evidence was befox-e the juxy in the penalty phase.
Through cross-examination of defendant’s expex-t witnesses in the penalty phase, the jury heard evidence (or references by the pi’osecutor) concerning past misconduct by defendant in high school, in the ax-my, and in jail. Supra at 496 [548 A.2d 1058]. In addition, the jury heard extensive testimony and px-ovocative references by the prosecutor to defendant’s acts of physical violence toward his former gix-lfriends. Supm at 492-94, 497-98 [548 A.2d 1058]. The expex-t witnesses wei'e also interrogated about the sehoolyax-d incident and defendant’s reason for buying the shotgun. Supra at 491, 494-96, 498 [548 A.2d 1058],
Virtually every character witness, other than defendant’s relatives, was questioned aggressively by the prosecutor about defendant’s tendency to “beat up” women. In addition, the cx-oss-examination of some ehax-acter witnesses included references to defendant’s prior misuse of the shotgun.
All of this evidence of defendant’s past conduct, to the extent it was admissible at all, was admissible only for a limited purpose. In the guilt phase, evidence of the schoolyard incident was admissible under Evidence Rule 55 to prove absence of mistake or accident; if admissible at all, evidence of defendant’s x-eason for buying the shotgun was admissible for the same pin-pose. Supra at 485-90 [548 A.2d 1058]. In the penalty phase, evidence of defendant’s past conduct was relevant to test the cx-edibility and the conclusions of the expex-t witnesses, and in the case of the character witnesses was matex-ial to x-ebut their testimony to demonstrate defendant’s good character as a mitigating factox-.
The jux-y was never told about the limited relevance of any of this testimony____ When evidence is admissible for one purpose, but not for another-, a limiting instruction is the appx-opriate device thx-ough which to restx-ict the jury’s use of such evidence.
In the penalty phase of a capital case, the function of the jury has been sharply defined by the Legislature. The jmy must detex-mine if the State has px-oved beyond a reasonable doubt the existence of any aggravating factors, and if the defendant has px-oved the existence of any mitigating factox-s. The jury must then weigh only the aggx-avating factox-s against only the mitigating faetox-s. N.J.S.A. 2C:ll-3c(3). The jury is not pex-mitted, in its weighing process, to add other evidence of defendant’s past conduct to the weight it assigns to the aggravating factors, nor to consider other evidence of defendant’s past conduct, except to the extent offex-ed to rebut mitigating factox-s, as detx-aeting from the weight it assigns to the mitigating factox-s.
In this case, however, the jury was totally unguided concerning the uses to which it could put the abundant evidence of defendant’s past conduct that was adduced at trial. We therefox-e have no confidence that the jury did not consider such evidence impx-operly in the course of its weighing px-ocess. We concede that there *649is no way to assure that a jury adheres scrupulously to the mandate of a limiting instruction. But in a death penalty context, and in the face of such abundant and inflammatory evidence of defendant’s past conduct, the necessity for a careful and precise limiting instruction to this jury was clear and compelling. Its omission from the charge was prejudicial beyond a reasonable doubt and compels the reversal of defendant’s death sentence.
[Id. at 505-08, 548 A.2d 1058 (citations omitted) (footnote omitted).]

In Rose, supra, the jury heard evidence not of prior convictions but of prior bad acts by the defendant, and this Court concluded that reversal of the death penalty was necessary because the jury was uninstructed about the relevance of that evidence to its penalty-phase deliberations. In this case the penalty-phase jury was informed about prior convictions for offenses similar to the instant offenses, but was not instructed that those convictions could not be considered in determining defendant’s sentence.

The question whether a defendant’s prior convictions can be considered in the sentencing phase of a death-penalty prosecution is a matter of legislative determination. See Barclay v. Florida, 463 U.S. 939, 956, 103 S.Ct. 3418, 3428, 77 L.Ed.2d 1134, 1148 (1983) (“The trial judge’s consideration of Barclay’s criminal record as an aggravating circumstance was improper as a matter of state law.”); Zant v. Stephens, 462 U.S. 862, 887, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235, 256 (1983) (“Thus, any evidence on which the jury might have relied in this case to find that respondent had previously been convicted of a substantial number of serious assaultive offenses ... was properly adduced at the sentencing hearing.”). The United States Supreme Court has held that no constitutional violation occurs if a state permits consideration of non-statutory aggravating factors in the penalty phase of a capital case. Id. at 878-79, 103 S.Ct. at 2733, 77 L.Ed.2d at 251.

Our Legislature, consistent with the recognition that reliance only on statutory aggravating factors diminishes the unpredictability of capital punishment, has restricted jury consideration in the penalty phase to a weighing of the statutory aggravating and mitigating factors. This penalty-phase jury, although instructed to weigh only statutory aggravating and mitigating factors, was informed of defendant’s prior sexual assault convictions but was *650never instructed that the significance of those prior convictions was not a permissible factor for consideration in the penalty-phase deliberations. In my view, that omission mandates reversal of defendant’s death sentence and a remand for retrial of the penalty phase.

Justice HANDLER joins in this dissent.