State v. Clausell

STEIN, J.,

concurring in part and dissenting in part.

The jury convicted defendant of capital murder, imposing the death sentence in part on the basis of its determination in the penalty phase that defendant had been paid by the victim’s neighbor, a Philadelphia drug-dealer, to commit the homicide. N.J.S.A. 2C:11-3c(4)(d). The murder was committed at close-range, the perpetrator firing twice through the front door from just outside the entrance to the victim’s home as the victim was closing the door. The victim died of a single bullet wound to the chest. Defendant did not dispute the State’s theory of a *373 murder-for-hire, but presented a defense on the basis that the homicide had been committed by two other persons affiliated with the drug-dealer’s organization.

I join that portion of the Court’s opinion reversing defendant’s convictions for aggravated assault because of erroneous jury instructions. The Court also reverses defendant’s conviction for capital murder, relying on our earlier decision in State v. Gerald, 113 N.J. 40 , 549 A.2d 792 (1988), and determining that “the evidence here could rationally support a finding that defendant intended only serious bodily injury.” Ante at 316, 580 A. 2d at 229. On this record, I find no rational basis for a jury verdict of non-capital murder, which would have required the jury to conclude that defendant had shot at the victim intending only to injure him and not to cause death.

I reiterate the view that I expressed in State v. Coyle, 119 N.J. 194 , 574 A.2d 951 (1990), that

our holding in Gerald should have limited application in homicide cases in which the killing was committed with a gun fired at close range. Absent specific evidence in the record suggesting that the defendant’s intent was limited to the infliction of serious bodily injury only and that death was an unintended consequence, such homicides ordinarily will not fit within the class of serious-bodily-injury murders that we immunized from the death penalty in Gerald. [Id. at 252, 574 A.2d 951 (Stein, J., concurring in part and dissenting in part).]

Finding that none of the other guilt-phase issues presents reversible error, I would affirm defendant’s conviction for capital murder. I also join in the Court’s determination that erroneous instructions to the jury in the penalty phase would require reversal of the death sentence.

The material facts are set forth in the majority opinion. The State’s case presented persuasive evidence that the victim, Edward Atwood, was murdered at the behest of Roland Bartlett, a neighbor and leader of a Philadelphia crime organization, in retaliation for Atwood’s complaint to municipal officials about Bartlett’s dog.

The prosecution’s principal witnesses were Jennifer Schall and Paul Grant. Schall testified that she had driven defendant *374 and Duane Wright to the victim’s house; that just before the shooting defendant, holding a handgun, and Wright had left her car parked down the street from Atwood’s residence; that she had heard two shots; and that Wright and defendant had run back to the car and had told her to drive away. On the trip back to Philadelphia, they had told her they were going to the Fleetwood Club, allegedly owned by Bartlett, to collect payment. The next day defendant had told her they “did good” and had been paid. They gave Schall money for having driven them to New Jersey.

Grant testified that he had been offered $5,000 to make the “hit,” which he defined as a killing. Grant had refused the offer, and testified that defendant and Wright had agreed to shoot Atwood, stating that they had told him they would each receive $2,000 for their efforts. Grant testified that he had seen both men in Schall’s blue Camaro on the night of the murder, that the next day Wright had told him he “took care of business,” and later had shown him $1,200 that he had received for the shooting.

The eyewitnesses who testified specifically about the shooting were the victim’s son Darrell and wife Valerie. Darrell testified that when his father had opened the front door, he had been sitting on top of the stairs leading to the second floor of the house, with a clear view of the door. He testified that his father had opened the door at about a forty-five-degree angle, and he could see the taller of the assailants opposite his father and the shadow of the shorter man standing to the left between a bush and the wall of the house. When his father had tried to close the door, the taller man had stepped aside, and the shorter man “came in the picture real quick. His arm was straight out. And there was a pop * * * you know, my father’s down.” Darrell testified that the shooter had “pointed downward and took the last shot.” On cross-examination Darrell vacillated about whether the shooter had been trying to hit his father with the second shot, at one point suggesting that his father had fallen out of the shooter’s range and later acknowledging *375 that the second bullet had been intended to hit his father as he lay on the floor.

Mrs. Atwood testified that she had heard the first shot as her husband had attempted to close the door. She had seen her husband fall, and had pushed her daughter Tanya to the floor. After having heard the second shot, she had crawled to the door, pushed it closed and locked it, and told Darrell to call the police.

The State also presented testimony indicating that the first bullet had entered the door frame four feet, seven-eighths inches above the concrete porch, and the second bullet three feet, eleven-and-five-eighths inches above the porch. Based on powder traces found on the screen, a sergeant from the county prosecutor’s office testified that the gun had been approximately six inches from the closed screen when the second bullet had been fired.

In that factual context, it is difficult to fathom the majority’s conclusion that there is a rational basis in the evidence on which the jury could have determined that defendant had acted with “an intent to inflict only serious bodily injury with no intention that death be the result.” State v. Gerald, supra, 113 N.J. at 89 , 549 A.2d 792 . The majority supports its conclusion, in part, by reference to matters outside the record. Thus, the majority suggests that a portion of Jennifer Schall’s statement to police never introduced in evidence, ante at 314-315, 580 A.2d at 228-229, “confirms” its conclusion that the record affords a basis for a charge on serious-bodily-injury murder. I strongly disagree. Nor do I agree that the trial court’s instruction to the jury on aggravated and reckless manslaughter has any bearing on whether serious-bodily-injury murder should have been charged. Ante at 315, 580 A.2d at 229.

From the record itself, the majority relies on Schall’s testimony that defendant had told her after the shooting that Bartlett had wanted to “hurt” Atwood, and on Grant’s testimony that defendant and Wright had been paid to perform a “hit,” ante at *376 314, 580 A. 2d at 228, terms far too nebulous to support the reliance placed on them by the majority. The majority also relies on Schall’s testimony that defendant had told her that the victim had died and sought her help in regaining possession of his gun. The majority extracts an implication from this statement that defendant “was surprised that the victim had died.” Ante at 314, 580 A. 2d at 228. In my view no such implication is warranted or even permissible.

Finally, the majority observes that the shooting occurred at night and that “at the time of the shooting, Atwood had nearly closed the interior door.” Thus, the majority notes that with his view “blocked, [the assailant] shot through both the outer screen door and the partially-closed interior wood door.” Ante at 315, 580 A.2d at 229. I would suggest that the victim’s effort to close the door in a vain attempt to save his life is hardly a basis on which a jury could conclude that a shot fired simultaneously was intended to injure only and not to kill.

We held in Gerald that under our state constitution,

one who takes the life of another with “an intent to inflict only serious bodily injury with no intention that death be the result” cannot be subjected to the death penalty. [ 113 N.J. at 89 , 549 A.2d 792 .]

The facts in Gerald , however, bear little resemblance to the contract killing depicted in the State’s proofs in this case. No evidence in the record suggests that defendant’s “conscious object” was to cause only serious bodily injury, but not death, to the victim, or that defendant was “practically certain” that only serious bodily injury, but not death, would result from the shooting. See N.J.S.A. 2C:2-2b(1) and (2) (defining “purposely” and “knowingly”). The evidence established that the assailant shot the victim at close range with a powerful handgun, and that the first shot entered the victim’s body close to the heart. The majority’s reference to the partially-closed door, or to the contract for a “hit,” ante at 315, 580 A.2d at 229, in the context of the circumstances of this homicide is hardly adequate to constitute a “rational basis” for a conviction of serious-bodily- *377 injury murder. See State v. Crisantos (Arriagas), 102 N.J. 265, 276 , 508 A.2d 167 (1986). As noted in State v. Long, supra,

one whose “conscious object” was to inflict serious bodily injury but not death, or who wished to be “practically certain” that only serious bodily injury would result, would never attempt to achieve that objective by shooting the intended victim in the chest at close range. [ 119 N.J. at 529 , 575 A.2d 435 (Stein, J., dissenting).]

The reality is that absolutely nothing in this record suggests that the perpetrator of the Atwood homicide intended only to injure Atwood, not to kill him. Hence, the jury verdict necessarily constituted a determination that defendant purposely or knowingly caused the victim’s death. See State v. Pitts, 116 N.J. 580, 615 , 562 A.2d 1320 (1989). An instruction on the lesser-included offense of serious-bodily-injury murder on this record would have constituted an unwarranted invitation to the jury to return a compromise verdict unsupported by any evidence.

I would affirm defendant’s conviction for capital murder, and remand for a new penalty-phase proceeding.

Justice GARIBALDI joins in this opinion.

For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK and O’HERN — 4.

Concurring in part and dissenting in part — Justices HANDLER, STEIN and GARIBALDI — 3.