State v. Conyers

Francis, J.

(dissenting). This is the third time in a short period that the majority of my colleagues have set *150 aside a death penalty verdict returned by a jury after an unquestioned fair trial on the issue of guilt of first degree murder and have substituted therefor a sentence of life imprisonment. In each of the first two cases I dissented because of a strongly held view that the Court’s action constituted a patent violation of the controlling statutory mandate and an unconstitutional trespass upon the prerogatives of our co-equal branch of the government, the Legislature. See State v. Royster, 57 N. J. 472, 492 (1971); State v. Laws, 51 N. J. 494, 518-562 (1968). The present case is the most startling of the three because the Court’s ruling here violates the constitutional doctrine of separation of powers in not one, but in two particulars. In Royster and Laws there was an unwarranted intrusion into the exclusive legislative domain. In this instance the majority have not only assumed a power which resides exclusively in the legislative branch of the government, but have also arrogated to themselves the commutation authority which, under the Constitution, resides in the executive branch of the government alone, i. e., the Governor.

The prosecutor who was in office when the homicide involved here was committed obtained a first degree murder indictment against the defendant. The assistant prosecutor who prepared the case and who tried it before a jury, believing that a death penalty was warranted, asked the jury to return such a penalty. The trial court advised the jury that the Legislature had prescribed the penalty for first degree murder in mandatory terms and instructed them that the controlling statute said that persons found guilty of murder in the first degree “shall suffer death unless the jury shall by its verdict, and as a part thereof, upon and after the consideration of all of the evidence, recommend life imprisonment, in which case this and no greater punishment shall be imposed.” (Emphasis added.) N. J. S. A. 2A:113-4. After considering all of the evidence, the jury found no sufficiently mitigating circumstances to move them toward the lesser alternative, and so they declined to *151 recommend, life imprisonment. The trial court then fulfilled its inescapable duty and imposed the death sentence.

After defendant took his appeal directly to this Court, a new prosecutor was appointed for Hudson County. Prior to argument here, the new prosecutor, in his brief, said:

[T]he State is of the opinion that there was no error below either with respect to the determination of guilt or the imposition of the death penalty.

However, the prosecutor advised the Court that “as a policy matter” he would not seek the death penalty if the case were moved for trial “at this time,” and also, that he does not seek or desire the execution of the present defendant. (Emphasis added.) Moreover, he expressed the opinion that this Court can and should amend the death sentence to life imprisonment. In Point X of the State’s brief his legal position as distinguished from his policy position is expressed thus:

The jury’s imposition of the death penalty cannot be reviewed and was not against the weight of the evidence; but if this Court determines that the death penalty can be reviewed and was against the weight of the evidence, then the State requests that this Court modify the sentence to life imprisonment. (Emphasis added.)

In presenting his position under the point he said:

[I]f the evidence warrants a finding of guilt, it likewise warrants the imposition of death; and in the absence of procedural errors and of more specific statutory standards for punishment, there is no further basis for appellate review of the death penalty as being against the weight of the evidence.

The State then argued that even if this Court feels that the statute quoted above does not preclude review of the sentence, “the facts of this case and principle regarding scope of review indicate that the imposition of death was not unjustified in the instant case.” Referring to the record, the brief continued:

*152 The evidence showed that the defendant premeditatedly and without provocation, cold-bloodedly shot his 16-year old nephew; that he fled the scene of the crime with a warning that no one follow him or they would “get it, too”; and that he subsequently sought to intimidate two eyewitnesses. * * * An argument that the attack was not savage or brutal in character is a specious exercise in esthetics; it assumes that a killing by a single efficacious bullet is less morally culpable than a bloody beating.

After a full consideration of the record, this Court has found unanimously that the defendant had a fair and error-less trial. Thus, unlike Laws and Royster where the Court found trial error affecting the penalty, we all agree that here there was no error at the trial as to the matter of guilt or punishment. Obviously, therefore, if the original prosecutor were still in the case, the jury’s verdict would be affirmed. But because the new prosecutor (who unqualifiedly agrees that the trial result was legally sound) advises us that as a matter of policy he would not have sought the death penalty in this case and is now willing to waive it even though the jury has imposed it, the majority of my colleagues have bowed to Ms statement of personal policy and have downgraded the penalty to life imprisonment. Thus the Court recognizes in the prosecutor a greater control over a death sentence determined upon by a jury after a fair consideration of all the evidence than the Court could exercise on its own on the trial record presented to us. If the advent of a new prosecutor with a different policy with respect to the death penalty, or a change of heart by the original prosecutor after trial and verdict, is allowed to expunge the jury verdict, there is little point in spending weeks searching for an impartial jury capable of giving fair consideration to imposition of the death penalty in cases where the evidence warrants it.

As I have said in the earlier dissents, the Legislature has established the policy with respect to the death penalty. It decided, as our Constitution authorized it to do, that twelve citizens representing a cross-section of the community are adequately equipped to evaluate the facts of a murder and *153 to decide the issue of life imprisonment or death. So, the legislators concluded that the choice between the two alternatives should he left to the sole discretion of the twelve citizens. As I see the operation of the separation of powers doctrine, the judicial branch of government must accept that mandatory expression of the legislative will. If jurors are not qualified for service in homicide cases when they have unyielding scruples against capital punishment, I do not believe I should sit as a judge in such cases if I allowed any personal policy views respecting capital punishment to influence me against impartial administration of the legislative mandate.

The Constitution has established a method of dealing with situations like the present one. N. J. Const., Art. Y, § 2, ¶ 1 commits to the Governor power to commute a death sentence to life imprisonment. He has broad discretionary power to investigate and decide an application for commutation by a defendant who received such a sentence in the judicial branch of the government. See N. J. S. A. 2A:167-1, 2 and 7. A cardinal principal of our tripartite form of government is that the power to impose a death sentence upon conviction of first degree murder and the power to commute the sentence are separate, the former being in the judicial department, while the latter is delegated to the executive branch. Our Court recognized the binding separation of these powers in State v. Butler, 32 N. J. 166, 196, cert. den. 362 U. S. 984 , 80 S. Ct. 1074 , 4 L. Ed. 2d 1019 (1960). There a death sentence had been imposed upon the defendant. At the trial strongly probative evidence against him had been presented through a witness who was legally competent to testify but concededly of limited mentality. We were concerned with the sentence, but since the trial (like the present one) was free of error, we felt duty bound to affirm the judgment. In doing so we said:

But here again responsibility has been placed by our Legislature with the jury and although the Governor has been vested with power to commute the death sentence (N. J. S. A. 2A: 167-2, cf. N. J. *154 Const., Art. 5, § 2, par. 1) this court has no comparable power. 32 N. J. at 196.

Thereafter, on May 26, 1960, the Governor commuted the sentence to life imprisonment.

In the case before us, I do not have the slightest doubt that the present prosecutor conscientiously feels that the jury should not have imposed the death penalty — that it represents too severe a punishment for the nature of the crime. However, in the face of his argument that defendant’s trial was full and fair and that the evidence is adequate to support the jury’s decision, I repeat that no authority exists in the courts to interfere with the sentence. But, the machinery of government has not exhausted itself. The defendant may importune the Governor to exercise his constitutional authority to commute the death sentence, and at that time the prosecutor may make known his policy and his sentiments respecting the propriety of the death penalty in this case. If commutation is warranted, it may safely be assumed that such action would be taken. However, this Court has no authority to do so, and it should have left that decision where the Constitution placed it — in the hands of the Governor.

In my opinion therefore, on the record before us, there is no choice but to affirm the judgment of the trial court.

Proctor, J., concurring in result.

For modification and affirmance — Chief Justice Weietraub and Justices Proctor, Hall and Schettiito — 4.

For affirmance — Justice Erancis — 1.