State v. Koskovich

ZAZZALI, J.,

concurring.

I concur in the majority’s thoughtful opinion, which concludes that three errors committed during the penalty phase warrant reversal of the death penalty imposed on Thomas Koskovich. Those errors involved instructions to the jury that were identified in a record containing hundreds, if not thousands, of correct decisions by the trial court. Although we cannot expect a trial court to nuance a charge to perfection, those errors require reversal. The decision so to do is a close one. I believe that the presence of other circumstances reinforces and validates the deei *553 sion to reverse. We must continue to be acutely sensitive to the possibility of prejudicial error in capital cases.

I write separately to focus attention on other factors that I believe present serious constitutional concerns with respect to the imposition of the death penalty in this and in similar cases. In my view, defendant’s young age, viewed in the context of his stunted emotional development, his traumatic childhood, and his condition at the time of the crime, raises the question whether the death penalty, as applied to him, is cruel and unusual punishment in violation of Article I, paragraph 12 of the New Jersey Constitution.

I

The Court today re-affirms its holding in State v. Ramseur, 106 N.J. 123 , 524 A.2d 188 (1987), that the New Jersey death penalty statute, N.J.S.A. 2C:11-3, is facially constitutional under Article I, paragraph 12 of the New Jersey Constitution. Ante at 541, 776 A.2d at 204. Although I agree that the death penalty statute is constitutional, I believe that the statute may be unconstitutional as applied to Koskovich.

In Ramseur , the Court held that three questions must be asked to determine whether a given punishment is cruel and unusual under Article I, paragraph 12 of the New Jersey Constitution: “does the punishment for the crime conform with contemporary standards of decency;” “is the punishment grossly disproportionate to the offense;” and “does the punishment go beyond what is necessary to accomplish any legitimate penological objective.” Ramseur, supra, 106 N.J. at 169 , 524 A.2d 188 . Concerning the second factor, the crime committed by Thomas Koskovich was, as our Legislature has decided, one for which the death penalty is not undeserved. The punishment is not grossly disproportionate to the offense. Thus, I focus only on the first and third inquiries.

To answer the question of whether sentencing Thomas Koskovich to death conforms with contemporary standards of decency, we must look to objective indicators of those standards, in particu *554 lar, to acts of the Legislature. Id. at 172 , 524 A.2d 188 (noting that legislative enactments provide for one of “the strongest indicators” of contemporary notions of decency); Penry v. Lynaugh, 492 U.S. 302, 335 , 109 S.Ct. 2934, 2955 , 106 L.Ed.2d 256, 289 (1989) (commenting that legislation provides “an objective indicator of contemporary values upon which [a court] can rely”). The Legislature has placed an absolute prohibition on the execution of juveniles. N.J.S.A. 2C:11-3g. Although the Legislature’s exclusion of juveniles from the death penalty can be considered objective evidence that society does not condone that practice, the inverse conclusion — that the execution of those eighteen and over is always acceptable — does not necessarily follow. For what we find offensive about the execution of minors is not merely that they are “young,” chronologically-speaking, but also that they tend to be immature. This Court has explained that “[i]n determining a defendant’s ‘relative’ youth, a jury must look beyond chronological age to considerations of defendant’s overall maturity.” State v. Bey, 129 N.J. 557, 612 , 610 A.2d 814 (1992). Similarly, as Justice Brennan has observed:

Insofar as age 18 is a necessarily arbitrary social choice as a point at which to acknowledge a person’s maturity and responsibility, given the different developmental rates of individuals, it is in fact “a conservative estimate of the dividing line between adolescence and adulthood. Many of the psychological and emotional changes that an adolescent experiences in maturing do not actually occur until the early 20s.”

[Stanford v. Kentucky, 492 U.S. 361, 396 , 109 S.Ct. 2969, 2989 , 106 L.Ed.2d 306, 335 (1989) (Brennan, J., dissenting) (citation omitted).]

By prohibiting the execution of juveniles, the Legislature has expressed a generalization regarding the maturity of those eighteen and over. That in no way rules out the possibility that exceptions to the general rule exist. Just as there are certain to be seventeen-year-olds who are as mature as the average adult, there are undoubtedly eighteen-year-olds who are less mature. The Legislature has acknowledged such exceptions by shifting the responsibility to the criminal justice system to review each defendant as an individual. Pursuant to N.J.S.A. 2C:11-3c(5)(c), age of the offender may be considered as a mitigating factor in a murder *555 trial even when a defendant is not automatically precluded from receiving the death penalty due to his or her youth. Even when the jury rejects the c(5)(c) mitigating factor, this Court has held that a defendant’s age may still play a role in the jury’s evaluation of the c(5)(h) (catch-all) mitigating factor. State v. Bey, 137 N.J. 334, 360 , 645 A.2d 685 (1994), cert. denied, 513 U.S. 1164 , 115 S.Ct. 1131 , 130 L.Ed.2d 1093 (1995).

I therefore infer from the actions of the Legislature that the citizens of New Jersey do not condone the execution of those who lack the maturity of adults. Against that backdrop, and in view of the circumstances described below, I believe that the execution of Thomas Koskovich may be contrary to contemporary standards of decency.

Concerning the third question, I believe that the death sentence in this case would go beyond what is necessary to accomplish a legitimate penological objective. Any retributive value to be gained from an execution is surely reduced where the offender lacks sufficient maturity to be considered fully culpable. See Thompson v. Oklahoma, 487 U.S. 815, 836-37 , 108 S.Ct. 2687, 2699-2700 , 101 L.Ed.2d 702, 719-20 (1988). Although I am of the view that the death penalty has a deterrent effect in some circumstances, I doubt seriously that imposition of the death penalty in this case would deter other such hopeless individuals. I also fail to see the deterrent value in executing an individual who is likely to retain the impulsiveness and feelings of invulnerability generally associated with childhood and adolescence. Stanford, supra, 492 U.S. at 404-05, 109 S.Ct. at 2993-94 , 106 L.Ed.2d at 340-41 (Brennan, J., dissenting).

II.

Having committed his offense at the age of eighteen, Koskovich is one of the youngest defendants in the universe of death-eligible cases. Moreover, his emotional development burdens him even further. One therapist described Koskovich as “a young boy whose emotional, psycho-social development is arrested at about *556 age eleven.” He was raised in an environment that taught him to be inwardly focused, emotionally distant, distrustful of authority, and to value illegal conduct. Neglected and unloved by both his parents and grandparents, Koskovich was left to learn morality from violent song lyrics and gun magazines.

In contrast to so many cases we consider in which the motive is money, revenge, or hatred, Koskovich appears to have killed without any meaningful understanding of why he did what he did. His statements to the police indicate that he lacked a mature understanding of the consequences of his actions and the pain he caused the victims’ families. His actions and thought processes, although horrific, were juvenile in nature. He was an exceedingly immature, eighteen-year-old high school student who lived at home, if it can be called that, when he committed acts of psychotic desperation.

Any reasonable observer would conclude, based on the evidence, that defendant’s family created or contributed to most of his problems. The majority notes defense testimony to the effect that the Koskovich family “was plagued by domestic violence, infidelity, substance abuse, gambling, criminal behavior, and suicide attempts.” Ante at 474-475, 776 A.2d at 159. Further, his family subjected him to extensive emotional neglect and abuse. Ibid.

Koskovich was raised primarily by his paternal grandmother, Bertha Lippincott, who abused alcohol and prescription drugs, gambled often, and tried to commit suicide. As a result of her drinking and drug abuse, she failed to supervise or at times even feed her children, and, later, her grandchildren for whom she was responsible. Koskovich’s maternal grandmother, Nancy, suffered from severe depression and after several attempts, ultimately committed suicide. After Nancy died, his maternal grandfather, Jim, became a heavy drinker. He later met Bertha at a bar and the two soon married. They lived together with each of their children in the house where Koskovich would later five. Koskovich’s parents, who were the son of Bertha and daughter of Jim, lived together as step-siblings. Koskovich’s parents became in *557 volved in a sexual relationship and eventually married. To sum up this domestic imbroglio, Thomas was the third son born of a union of step-siblings.

After his birth, the household was, at best, chaotic. The police made regular visits to arrest family members or search for stolen goods. Koskovich’s grandparents could often be found drunk and fighting. The family had little money because of Bertha’s gambling problem and the house was filthy and overcrowded with people and neglected pets. Koskovich’s Uncle Lenny and Aunt Dolly also lived in the house with Dolly’s children. Aunt Dolly was an emotionally disturbed substance abuser who tried to commit suicide many times. Uncle Lenny had a history of juvenile delinquency, abused drugs and alcohol, physically abused family members, was emotionally disturbed, and tried to commit suicide more than once when he was a teenager. Lenny is a self-described “menace to society” who has been incarcerated most of his life. The family often compared defendant to Uncle Lenny and, no doubt because of this comparison, young Thomas Koskovich viewed his uncle as his role model. That perception was an augury of future tragedy.

When Koskovich was nine, his parents ended what had been an abusive and non-monogamous marriage. They both deserted Koskovich. His father began a new life on the west coast, rarely to see Koskovich again. When his father left, he told Koskovich that, of the father’s three sons, he loved Koskovich the least, a statement that can destabilize relationships and destroy lives when made by any father to any son at any age. Similarly, his mother treated Koskovich as the worst of the children, leaving him behind after taking his younger brother to live with her new family. No family member ensured that Koskovich had enough to eat or had clean clothes to wear. Koskovich, once a good student and kind child, lost interest in school and began to live in an imaginary world. He heard voices and attributed human feelings to inanimate objects, like pencils and toys, for emotional stimuli. Those *558 behaviors and his sharp academic decline went unnoticed by his indifferent family.

His family also failed to notice his gradual foray into the world of drugs. Koskovich began smoking cigarettes at age eight and at age twelve or thirteen began drinking beer, which was provided by his aunt and uncle. At the same time he also began using marijuana and LSD, and three years later he added hard alcohol to the mix. By the time he was only eighteen, he was abusing his grandmother’s prescription opioids and barbiturates such as Darvon, Percodan, Percocet, Fiorinal, and Fioricet. He told doctors that he took pills before and after school in a binge pattern characterized by heavy use for several days in a row. One expert at trial opined that Koskovich was likely under the influence of the Fioricets at the time of offense.

Undoubtedly, however, the nadir of Koskovich’s family life was when his mother refused to sign releases for records which would help with the mitigation defense. The indifference of defendant’s mother became palpable when she failed to testify at his trial, even for the limited purpose of asking the jury' to spare her son’s life. 1 Only Koskovich’s father and a cousin gave cursory testimony, leaving the overall impression that nobody ever cared about defendant. Indeed, Koskovieh’s grandmother, Bertha, his sole “maternal figure” his entire life, according to the Office of the County Prosecutor, cooperated with the Prosecutor before the *559 penalty phase. She did so, as the majority notes, “because she was concerned about her reputation and did not want to be blamed for the murders.” Ante at 476, 776 A.2d at 160. Apparently her desire not to be cast in a negative light eclipsed any concern that her grandson could be sentenced to death.

Defendant’s background is similar to, or perhaps even less mitigating than, that of many of those defendants sentenced to the death penalty. Thus, those circumstances alone carry only supporting weight. However, in conjunction with, and primarily because of, both defendant’s chronological and non-chronological age, that background becomes highly relevant to the propriety of defendant’s sentence.

In any event, I do not present those facts to excuse or minimize the crimes of defendant. As the trial judge said, his conduct suggests “a deep capacity for doing evil and for doing unbelievably dangerous and bad things to other people and it calls for a strong sentence.” Yet, the trial judge also noted that there is “a sense of loss and sorrow with respect to Thomas Koskovich” and that “there’s much that one can sympathize with in Mr. Koskovich’s life.” The court limned this complex portrait:

He has had a difficult background. He hasn’t had the kind of stability that we would want all of our fellow human beings to have.

He hasn’t had the nurturing, loving raising that we would like everyone to have.

And he does have, I think, a lot of emotional and psychological burdens that have weighed heavily upon him and which in part explain why he acted in the way in which he did.

And one can, in observing Mr. Koskovich, see some good things and see that perhaps this is a young man in different circumstances who would have had a very different result and would not have been tempted to act in the way in which he did act.

So I must say I feel terribly Sony for Thomas Koskovich and I ... sort of maybe wish I had met him under different circumstances then years before or even earlier and something might have been done to steer him along a more constructive path.

At heart, and at the least, Koskovich was a sad, disturbed, immature boy involved in a scheme with consequences perhaps beyond his mental grasp. At worst, he was, as the trial judge observed, “a basket case.” In either case, for all of the above *560 reasons, Article I, paragraph 12 of the Constitution would, in my view, forbid his execution. 2

III.

Because the Court today vacates Koskovich’s sentence and remands for a new sentencing proceeding, it is unnecessary to resolve the question whether executing him would violate Article I, paragraph 12 of the Constitution. Should he receive another death sentence, or should a ease with a similar set of facts come before this Court in the future, the concerns that I have raised should be considered. By not doing so, we would do worse than abdicate our responsibility. We would risk executing someone incapable of understanding the magnitude and consequences of the crimes he committed. One is able to comprehend why such a boy should be locked away from society for life. It is more difficult to understand why he should be given a lethal injection.

Syllogisms cannot resolve death penalty matters. As much as we search for a calculus to make those determinations, at the end of the day, after a review of all of the facts and law, it is sometimes best to simply invoke intuition, fundamental fairness, and classic principles of discernment to make a holistic judgment about whether the death penalty ought to be imposed. This is one such ease.

All of the above facts and factors, collectively considered, create an abiding sense that the imposition of the death penalty on *561 Thomas Koskovich would constitute cruel and unusual punishment.

Justice LONG joins in this opinion.

That conclusion is reinforced by the fact that Jayson Vreeland, Koskovich’s co-defendant and his junior by a scant sixteen months, was not eligible for the death penalty due to his age. I believe that the fact that Koskovich was eighteen at the time of the crime and so can be executed, while Vreeland was seventeen and so cannot be executed, when both participated in the double killing, raises a unique concern about intra-case proportionality. That kind of arbitrary distinction between two equally culpable participants is antithetical to this Court’s promise to "treat like cases alike.” State v. Marshall, 130 N.J. 109, 220 , 613 A.2d 1059 (1992) (quoting H.L.A. Hart, The Concept of Law 155 (1961)).