State v. Koskovich

LaVECCHIA, J.,

concurring and dissenting.

The majority’s opinion thoroughly analyzes numerous claims of error in the guilt and penalty phases of the trial of Thomas Koskovich. I concur in all of the majority’s conclusions concerning the guilt phase and write only to express my disagreement on three issues arising in the penalty phase. Based on those three *582 errors, viewed collectively, the majority finds reversible error requiring a new penalty proceeding. Ante at 502-503, 776 A.2d at 177. Because I am not persuaded that reversible error occurred, individually or collectively, I would not disturb the jury determination.

I.

First, defendant raises several objections to the victim-impact testimony presented to the jury by Loretta Giordano, Jeremy Giordano’s mother. The majority’s analysis of the merit of those challenges sensitively addresses the right of a family member to express in his or her own way the uniqueness of the victim as a human being and the victim’s integral relationship to a family unit left to bear the harm caused by the crime. Ante at 508-509, 776 A.2d at 181. And, appropriately, the majority cautions trial courts to be vigilant in preserving the boundaries set by State v. Muhammad, 145 N.J. 23 , 678 A.2d 164 (1996), that necessarily circumscribe victim-impact testimony, particularly when certain forms of expression such as poetry are used. Ante at 508, 776 A.2d at 181. Confronted with nonprose expressions by grief-stricken family members of murder victims, the majority approaches that alleged error by blending sensitivity and vigilance into a practical conclusion. However, that practicality is not evident in the majority’s review of the use of the victim-impact testimony.

After a lengthy recitation of the instruction, the majority initially turns aside the assertion that the trial court impermissibly allowed the jury to weigh the victim-impact statement against non-catch-all mitigating factors favoring defendant when considering whether to impose the death penalty. Noting that the court “stressed the limited manner in which the victim-impact evidence could be used,” ante at 511-512, 776 A.2d at 183, the majority evaluates that criticism in the context of the overall charge discussion concerning the use of victim-impact testimony. That contextual evaluation properly avoids undue emphasis on differ *583 enees in word choice and maintains appellate focus on the overall effectiveness of the charge in instructing the jury concerning its duties and obligation. That approach should have been used, as well, when reviewing defendant’s argument that the charge impermissibly instructed the jury to “balance” the background of defendant against that of the victim. Ante at 508, 776 A.2d at 181.

Defendant focuses on the following language in the trial court’s charge to the jury: “But this impact statement ... kind of balances the victim’s background and circumstances against the defendant’s background. Balance them. But it’s a-it’s a sort of a parallel opportunity.” Defendant maintains that that statement suggests that the jury was impermissibly invited to “compare the worth” of the defendant against the “worth” of the victim in violation of State v. Muhammad. The majority agrees, and that supposed error then contributes to its decision to require a new penalty-phase trial. I respectfully disagree. That discrete and brief comment should not be considered out of context. We have stated on numerous occasions that “ ‘portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect.’ ” State v. Marshall, 123 N.J. 1, 135 , 586 A.2d 85 (1991) (quoting State v. Wilbely, 63 N.J. 420, 422 , 307 A.2d 608 (1973)); accord State v. Martini, 131 N.J. 176, 271 , 619 A.2d 1208 (1993), cert. denied, 516 U.S. 875 , 116 S.Ct. 203 , 133 L.Ed.2d 137 (1995); State v. Purnell, 126 N.J. 518, 544 , 601 A.2d 175 (1992); State v. Hunt, 115 N.J. 330, 373 , 558 A.2d 1259 (1989). Examination of the court’s “balancing” statement in the context of the entire charge, and specifically in juxtaposition to those portions of the charge that immediately precede and follow it, compels a more reasonable appellate response. Properly considered, that comment is unobjectionable and certainly does not present error requiring a new penalty trial.

Shortly before setting forth the challenged portion of the jury charge, the trial court stated in regard to the victim-impact statement:

*584 And I want to point out to you that that kind of evidence is admitted for a limited purpose and not for any other purpose. That evidence is to be used by you in determining the appropriate weight to be given to certain mitigating factors. And those are the kind of catch-all mitigating factors____They [the catch-ail mitigating factors] do relate to the defendant’s background and his makeup and to the circumstance of his offense.

[Emphasis added.]

Immediately after the challenged segment, the trial court stated:

And it’s — it’s to be considered in relation to those-those mitigating factors, 6 through 14, and any others you may find. And it’s not to be considered in terms of boosting an aggravating factor____It’s only meant to effect [sic] your determination of the weight of those certain mitigating factors.

[Emphasis added.]

The court then continued, in great detail, to instruct the jury that a crime against a “very nice, decent person” is no worse than a murder of “somebody who isn’t so attractive.” The court stressed that “you are meant to use the fact that — that statement that Mrs. Giordano made for the purpose of helping you to weigh the impact of the mitigating factors dealing with the defendant’s history and his record and circumstances of the offense.” Thus, the comprehensive charge informed the jury properly on how it was to use Mrs. Giordano’s victim-impact statement. The court stressed that the victim-impact statement could be used only to determine the weight to give to certain of defendant’s mitigating factors and thereby appropriately instructed the jury on the limited use of the evidence. Moreover, the court’s full explanation specifically undercuts the asserted inference that the jury was invited to balance the “worth” of the victim against the “worth” of the defendant.

Accordingly, I cannot subscribe to the majority’s conclusion finding reversible error in the jury charge concerning the use of the victim-impact testimony. I reject a conclusion that is based on isolating and parsing everyday language that is not inappropriate when properly viewed in the context of the entire set of instructions given by the trial court. When viewed in that manner, the *585 court’s “balancing” remark is not likely to effect juror misapplication of the victim-impact testimony.

II.

Defendant also argues that the trial court erred in not explicitly informing the jury about the court’s intent to consecutively sentence defendant on his non-capital convictions so that the jury would be aware of the likelihood that defendant would spend the rest of his life in prison regardless of the jury’s determination concerning the death penalty. The majority faults the trial court’s equivocation concerning the nature of the sentences that would be imposed for the non-capital convictions, that is, the sentence ranges for each and whether they would be served consecutively to one another. The State argues that reversal on that ground would be improper because the court specifically informed the members of the jury that defendant would never pose a threat to society should they not sentence him to death.

In Martini, supra, 131 N.J. at 313 , 619 A.2d 1208 , the Court held that, with regard to non-capital convictions, “[t]he jurors should be informed of the sentencing options available to the judge, and that that determination of sentence had not yet been made.” (Emphasis added). Martini also notes that “the trial court should explain that the sentence may or may not run consecutively to that for murder, but that the determination is left to the court.” Ibid. Lastly, “the court should inform the jury that defendant’s possible sentence for the other convictions should not influence its determination regarding the appropriateness of a death sentence on the murder count.” Ibid.

Due process requirements are satisfied “if either the judge or defense counsel provides the relevant parole ineligibility information to the jury.” State v. Loftin, 146 N.J. 295, 371 , 680 A.2d 677 (1996)(citing Simmons v. South Carolina, 512 U.S. 154, 168-69 , 114 S.Ct. 2187, 2196 , 129 L.Ed.2d 133, 149-51 (1994)). Although the Court in Loftin stated that the trial court should so inform the jury when “there is a realistic likelihood that it will impose a *586 sentence to be served consecutively to any of defendant’s prior sentences, in the event the jury does not return a death sentence,” id. at 372 , 680 A.2d 677 , the Court did not mandate as much because it recognized a judge may harbor some uncertainty about what sentence will ultimately be imposed. Ibid. That is what the trial court said here. Unless the same result is mandated in every case, the failure to so inform the jury in the present ease can only be harmless error. Ibid. Defense counsel was allowed wide latitude in commenting on what the other potential sentences would be. That satisfied all federal and state due process requirements.

The majority expresses concern that a jury not be kept in the dark regarding the extent of defendant’s potential sentence should he not be sentenced to death. However, Loftin held that, notwithstanding the failure of the trial court to give precise sentencing information, the error will not be reversible if defense counsel had the opportunity to argue to the jury that defendant would likely spend the remainder of his life in prison if the death sentence were not imposed. Ibid. It is uncontested in this record that defense counsel on several occasions during her opening and closing statements in the penalty phase told the jury that defendant would never “see the light of day.” Defendant’s trial counsel more than adequately conveyed to the jury the point that defendant would be spending the rest of his life in prison should he not be sentenced to death. As in State v. Papasavvas, 163 N.J. 565, 621 , 751 A.2d 40 (2000), here “defense counsel was given the freedom to argue that defendant would never be released from prison if the jury did not sentence him to die.” The trial court’s comments during voir dire also made clear to the prospective jurors that “[t]he likelihood is that ... [defendant] would be sentenced to a number of consecutive terms to the point at which he would in fact, never be released from prison,” should he not be sentenced to death. The arguments of defense counsel, and the comments of the trial court during voir dire, enabled the jury to be “ ‘fully informed about their sentencing options,’ including the practical ‘effect of a life sentence.’ ” Loftin, supra, 146 N.J. at *587 373 , 680 A.2d 677 (quoting State v. Bey (III), 129 N.J. 557, 601 , 610 A.2d 814 (1992)).

In State v. Nelson, 155 N.J. 487, 501 , 715 A.2d 281 (1998), the defendant asserted that the mandate of Loftin was not met because the trial court specifically instructed the jury not to consider the defendant’s likely sixty-year parole disqualifier when deciding whether to impose the death penalty. In rejecting defendant’s argument, the Court stated: “We understand the logic of the defendant’s argument but disagree with its reality.” Id. at 505, 715 A.2d 281 . A realistic approach to defendant’s contentions here necessarily leads to a similar conclusion.

What the majority characterizes as the trial court’s expression of “equivocation” regarding whether defendant’s sentences would run concurrently or consecutively is more properly demonstrative of the court’s desire to appear fair and impartial. That view comports with the court’s statement to counsel that it did not want to tell the jury that it was leaning toward imposing sentences to run consecutively. Indeed, the trial court’s comments out of the presence of the jury indicate that, although it was leaning toward imposing consecutive sentences, it had not decided on that issue.

As with all other aspects of a jury charge, the challenged omission must be subjected to a harmless error analysis. R. 2:10-2. The trial court’s charge instructed the jury in compliance with Loftin’s observation that defendant’s sentence on the non-capital counts should not influence its consideration of whether defendant should be sentenced to death. Loftin, supra, 146 N.J at 372, 680 A. 2d 677 . The trial court nonetheless told the jury not to “be worried” about defendant’s posing a threat to society, alleviating any concerns that defendant would not be sufficiently punished. The instruction stated, in pertinent part, as follows:

And without committing myself in advance to precisely what [defendant’s non-capital sentences] will be, I can tell you that they will be sufficient to make sure that society is fully protected from the risk of any further violence from the defendant. So when you decide what the penalty should be in this case, decide it in terms of what you think the appropriate penalty is for this crime of the knowing and purposeful murder of Jeremy Giordano. Don’t be worried that — that. If you *588 do not sentence the defendant to death or direct the defendant be sentenced to death for this crime, that he will be out on the street in the near future. That will not occur. So you do not have to worry about that — that if you fail to impose the death penalty society will not be protected from further acts of violence by Mr. Koskovich, because it will be. The point is decide in terms of what is the appropriate penalty for this ease, whether the penalty should be death or less than death____If you do not impose the death penalty unanimously, then I will sentence the defendant to a term of imprisonment which may go up to life imprisonment for this crime, and it must be at least 30 years without any possibility of parole.

“No specific words are mandated to convey to a capital jury the essence of its task.” Marshall, supra, 123 N.J. at 150 , 586 A.2d 85 ; see also State v. Chew, 150 N.J. 30, 87 , 695 A.2d 1301 (1997) (finding no plain error in jury charge “[although not as clear as it could have been”). Rather, the charge must be viewed in context and under the circumstances of the specific case. “The effect of the purportedly-erroneous charge must be evaluated in light of the totality of the circumstances.” State v. DiFrisco, 137 N.J. 434, 491 , 645 A.2d 734 (1994) (citing Marshall, supra, 123 N.J. at 145 , 586 A.2d 85 ). As noted, the majority seemingly ignores Loftin’s requirement that a court should instruct the jury that a determination has not been made with regard to the non-capital sentences. The trial court stated that it had not yet determined defendant’s non-capital sentences. Also, in Loftin as in this ease, defense counsel repeatedly stressed to the jury that defendant would likely die in prison if not sentenced to death. See Loftin, supra, 146 N.J. at 372 , 680 A.2d 677 . The majority seeks to distinguish Loftin by asserting that “the remarks of counsel in the present ease were effectively erased by the trial court’s equivocations.” Ante at 518, 776 A.2d at 188. But those supposed “equivocations” concerned the trial court’s statement to the jurors that it was not “precisely sure” whether the non-capital sentences would be made to run concurrently or consecutively to defendant’s capital murder conviction. Such an instruction fully comports with Martini, supra, 131 N.J. at 313 , 619 A.2d 1208 .

The model charge for a penalty-phase proceeding is “necessarily advisory.” State v. Ramseur, 106 N.J. 123, 155 , 524 A.2d 188 (1987). A court’s compliance with the manual “does not foreclose constitutional challenge to trial procedure,” State v. Harris (I), *589 156 N.J. 122, 189 , 716 A.2d 458 (1998), nor should a departure from the manual necessarily indicate error. “ ‘[A] defendant is entitled to a fair trial but not a perfect one.’ ” Lutwak v. United States, 344 U.S. 604, 619 , 73 S.Ct. 481, 490 , 97 L.Ed. 593, 605 (1953); State v. Feaster, 156 N.J. 1, 84 , 716 A.2d 395 (1998) (citing Marshall, supra, 123 N.J. at 170 , 586 A.2d 85 ). The trial court’s evenhanded instruction, when viewed along with the emphatic and unchallenged contentions of defense counsel that should defendant be spared a death sentence he would be spending the remainder of his natural life in prison, indicates that the charge did not constitute reversible error. Again, as with the victim-impact instruction error discussed herein, it does not provide persuasive support for overturning the jury’s determination in this matter.

III.

Finally, for the reasons set forth by Justice Coleman in his dissenting opinion, I disagree with the majority’s conclusion concerning the trial court’s charge on the weighing of aggravating and mitigating factors. For all of the foregoing reasons, I respectfully dissent from that portion of the majority’s opinion that reverses the penalty-phase verdict.

Chief Justice PORITZ and Justice COLEMAN join in this opinion.

For affirmance: Conviction — Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI — 7.

For reversal and remandment: Sentence — Justices'STEIN, LONG, VERNIERO and ZAZZALI — 4.

For affirmance: Sentence — Chief Justice PORITZ and Justices COLEMAN and LaVECCHIA — 3.

*590 For affirmance in part/reversal in part — Chief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI — 7.