# State v. Feaster > Supreme Court of New Jersey · July 30, 1998 · 156 N.J. 1 URL: https://www.frixlaw.com/law-library/cases/9700282 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Richard Feaster, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** July 30, 1998 - **Citations:** 156 N.J. 1; 716 A.2d 395; 1998 N.J. LEXIS 645 - **Precedential status:** Published - **Opinion:** Dissent by O'Hern - **Judges:** Stein, Handler, O'Hern - **Cited by:** 167 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700282 ## How later opinions describe it (automated extraction) - holding under a plain error standard that the defendant was not denied a fair trial when “it was the weight of the evidence ... that led to this capital murder conviction rather than the prosecutor's improper comments during summation.” - finding "[a] prosecutor is guilty of misconduct if he implies to the jury that he possesses knowledge beyond that contained in the evidence presented, or if he reveals that knowledge to the jury" - explaining that "[b]ecause it is exclusively within the province of the jury to find fact and evaluate witness credibility, a trial court may not vouch for the credibility of a witness" - holding there was no plain error in the trial court's failure to give a Kociolek charge even though the defendant's incriminating oral statements were "at the heart of the State's case against defendant" - holding that six lines of testimony was admissible because they only made "fleeting . . . reference to defendant's invocation of his right to counsel" ## Opinion text O’HERN, J., dissenting. In this capital ease, the trial court erroneously instructed the jury that its verdict on the murder charge had to be unanimous, whether it found defendant guilty as a principal, accomplice, or eo-eonspirator. That instruction deprived defendant of the fair-trial right to have some of the jurors convict defendant of murder on non-death-eligible grounds. See State v. Brown, 138 N.J. 481 , 651 A.2d 19 (1994). Although I dissented from the Court’s holding in Brown because I believed that the State was entitled to an “acquittal-first” verdict on the charge of capital murder, I believe *114 with equal conviction that the Court should adhere to its precedent. In this ease, the Court finds the error to be harmless. It is true that other parts of the instruction, and the verdict sheet itself, suggested to the jury that it was not required to be unanimous on the own-conduct triggering element of capital murder. However, we have held that contradictory instructions are inherently inadequate. State v. Moore, 122 N.J. 420, 433 , 585 A.2d 864 (1991). I We first addressed, in State v. Coyle, 119 N.J. 194 , 574 A.2d 951 (1990), the issue of sequential charges that preclude the simultaneous consideration of non-death-eligible forms of murder with death-eligible forms. In Coyle , the trial court instructed the jury that it could not consider the offense of passion/provocation manslaughter without first acquitting the defendant of murder. We held that the trial court’s instruction had the “potential to foreclose jury consideration of whether passion/provocation should reduce an otherwise purposeful killing from murder to manslaughter.” Id. at 222 , 574 A.2d 951 . The Court, thereafter, has consistently held that trial courts should instruct juries to consider non-capital forms of murder simultaneously with capital murder. See State v. Mejia, 141 N.J. 475, 483-85 , 662 A.2d 308 (1995) (requiring simultaneous consideration of intent-to-kill murder and SBI murder); Brown, supra, 138 N.J. at 519 , 651 A.2d 19 (requiring simultaneous consideration of murder as principal or accomplice). Coyle, Brown, and Mejia together stand for the proposition that when a rational basis exists for a jury to convict a capital defendant of a non-death-eligible alternative form of homicide, 1 not only must a trial court charge *115 that offense, but it must charge it in such a way that the jury will consider it simultaneously with the consideration of death-eligible murder. The Court agrees with that proposition of law. Ante at 39, 716 A.2d at 413. In this case, however, the impermissible sequencing of an alternative, but not lesser-included, theory of non-capital murder removed a legitimate verdict from this jury by requiring unanimity when a non-unanimity charge was required. This error deprived defendant of a fair trial and requires that we now reverse the capital-murder conviction. II The trial court incorrectly instructed the jury that it could not consider accomplice liability unless and until it had acquitted Feaster of murder by his own conduct. Then, and only then, was the jury free to consider accomplice liability: In this case the State contends that the defendant Richard Feaster, committed the offenses for which he is charged, the murder, the felony murder, the robbery, I’m talMng about those in particular right now, against Keith Donaghy by his own conduct. If you are convinced of that beyond a reasonable doubt, then you need not consider the alternative type of culpability or responsibility, that is, where a defendant may be found guilty of an offense because of the conduct of another person for whom he is legally accountable. If you are not convinced beyond a reasonable doubt that the defendant acted by his own conduct in committing these crimes, then you may consider and should consider whether he should be found guilty of them because of being legally accountable as an accomplice of such other person, and you'll only consider these instructions on accomplice liability if you first determine that he is not directly responsible by his oum conduct. [Emphasis added.] *116 To compound the error, the court added an incorrect unanimity requirement: As I previously instructed, any verdicts rendered must be unanimous on any of these charges, whether it be murder, aggravated manslaughter, reckless manslaughter, accomplice liability. Your verdicts must be 12 to 0 to be a verdict. I’m going to give you further instructions on that as we go along. All 12 jurors must agree that he’s either guilty or not guilty of any of the charges that you are considering. [Emphasis added.] Pursuant to Brown , no verdict on a theory of liability (accomplice, principal, or conspirator) need be unanimous. Brown, supra, 138 N.J. at 519-20 , 651 A.2d 19 . The court repeated the error, mandating incorrect sequencing that required unanimity: I then explained to you the concept of accomplice liability and I told you if you find that the defendant did not commit the crimes by his own conduct, that you should consider whether he should be found guilty because of being legally responsible as an accomplice for the conduct of another under all those principles that I explained. Finally, the court repeated the incorrect sequencing in connection ■with the own-conduct charge: A defendant may be found guilty of murder either because he committed the murder by his own conduct or [as] an accomplice in the murder. I’ve just given you a detailed description, an explanation of the principles of accomplice liability, and I told you that you would consider that only if you first determined that the defendant did not commit the murder by his own conduct. [Emphasis added.] As the majority observes, there are portions of the charge that correctly instruct the jury on the non-unanimity option. For example, in describing the meaning of the own-conduct requirement, the court stated: If you have a reasonable' doubt as to whether the killing was by his own conduct or if you are unable to reach a unanimous decision beyond a reasonable doubt as to whether the defendant committed the murder by his own conduct, as distinguished from being responsible for it as an accomplice, that is a permissible final verdict on this issue and that, again, would result in the imposition of a mandatory sentence for murder of at least [thirty] years in prison, up to life, but at least [thirty] without parole. However, at the conclusion of that portion of the charge, the court again told the jury that accomplice liability need not be considered *117 unless and until the jury rejected the theory that defendant committed the homicide by his own conduct: [I]f you find the defendant guilty of murder, and regarding the by-his-own-conduet question, if you have found him guilty of murder and if it becomes appropriate for you to reach that question, those do not have to be unanimous, as I already explained to you. It is impossible to reconcile mandated requirements of sequential and unanimous deliberation with the later instruction on non-unanimity. The instructions were internally contradictory. The sequential instructions were incorrect and prevented the jury from simultaneously considering the alternate theories of guilt of non-capital murder. The verdict sheet given to the jury neither directed the jury to deliberate on the questions simultaneously, nor did it propose by-his-own-conduct and accomplice liability as equal alternatives. As noted, Brown held that in order to return a conviction of murder a jury need not be unanimous on the theories of responsibility if the alternate theories apply to commission of the same act and each of them supports the conviction. Id. at 511 , 651 A.2d 19 . In Brown , the issue, as here, was one of accomplice liability. Brown and his girlfriend were both potentially guilty of having committed the murder, either as principal or as an accomplice of the other. The Brown Court held that a non-unanimous verdict on the theory of the homicide was acceptable and, indeed, required. Id. at 511-12 , 651 A.2d 19 . Acquittal-first charging is simply incorrect. The error in this case, as it was in Brown , is that a jury cannot be told it must acquit as a principal before it can consider culpability as an accomplice. A murder conviction will surely stand if the jury is split between the two theories of liability. Id. at 508 , 651 A.2d 19 . In addition, the instruction to the jury that any verdicts rendered must be unanimous on any of the charges— “whether it be murder, aggravated murder, reckless manslaughter, accomplice liability ... [y]our verdicts must be 12 to 0 to be a verdict” — flatly contradicts the holding in Brown by requiring a unanimous verdict on the accomplice-liability question. When two *118 instructions are given, one right and the other wrong, a reviewing court cannot determine which charge the jury followed. In Moore, supra, 122 N.J. at 432 , 585 A.2d 864 , contradictory instructions concerning diminished capacity “placed the burden on the defendant to disprove an essential element of the crime” in one section of the charge while maintaining that the burden of proof on the elements “remains on the State throughout the whole trial of the case.” The Court stated that such “[cjontradictory and inconsistent charges are inherently inadequate as they ‘create a reasonable likelihood that a juror'understood the instructions in an unconstitutional manner.’ ” Id. at 433 , 585 A.2d 864 (quoting Humanik v. Beyer, 871 F.2d 432, 442 (3d Cir.), cert. denied, 493 U.S. 812 , 110 S.Ct. 57 , 107 L. Ed.2d 25 (1989)). “Although the court [in Moore ] reinstructed the jury as well that the defendant’s failure to disprove the requisite mental state did not relieve the State of its burden, we ‘cannot say with any degree of confidence which interpretation [the] jury adopted.’” Id. at 434 (quoting Mills v. Maryland, 486 U.S. 367, 383 , 108 S.Ct. 1860, 1870 , 100 L. Ed.2d 384, 399 (1988)). So too in this case we cannot say with any degree of confidence that the jurors understood the instructions in a constitutional manner. At best, the jury had to have been hopelessly confused regarding this most crucial part of the case. Ill The majority acknowledges that there was error but concludes that the error was harmless. The Court states that “the alternatives of own-conduct murder and accomplice-liability murder presented the jury with one indivisible issue to resolve.” Ante at 40, 716 A.2d at 414. That statement is incorrect. Although largely mirroring the common-law distinction between principal and accomplice liability, the own-conduct concept is “simply irrelevant to the question of whether defendant is guilty of purposeful or knowing murder.” State v. Gerald, 113 N.J. 40, 100 , 549 A.2d 792 (1988). During guilt-phase proceedings, the jury first must determine whether defendant should be convicted of murder, considering, where appropriate, principles of *119 vicarious liability under N.J.S.A. 2C:2-6 [such as accomplice or conspiratorial liability]. Only after it has unanimously found defendant guilty of purposeful and knowing murder should the jury turn to the question of whether defendant committed the homicidal act by his or her own conduct. Ubm The own-conduct analysis requires a slightly different factual inquiry by a jury than the analysis of principal and accomplice liability. This is because a judgment must be made as to whether a defendant’s participation in the homicidal act was qualitatively sufficient to make the defendant death eligible. For example, in Gerald , the defendant was one of several involved in the beating of an elderly person. We there held that the “own-conduct” language]] does not necessitate a specific finding that the defendant’s actions standing alone caused the victim’s death. The relevant inquiry is whether or not the defendant actively and directly participated in the homicidal act, ie., in the infliction of the injuries from which the victim died. The critical elements are that [the] defendant in fact acted, and the immediacy of his conduct to the victim’s demise. [Id. at 97, 549 A.2d 792 .] It is thus incorrect to state that the two concepts “presented the jury with one indivisible issue to resolve.” Ante at 40, 716 A.2d at 414; see State v. Chew, 150 N.J. 30, 74 , 695 A.2d 1301 (1997) (explaining why it was correct not to charge on accomplice liability in the own-conduct part of that case). The error was particularly harmful in this case in which the State offered several inculpatory statements attributed to defendant through witnesses whose testimony was sharply contested. Defendant attacked the credibility of the State’s witnesses, pointing out that a cellmate who heard defendant say he shot a man “point blank” had difficulty identifying defendant, that another witness desired an award upon defendant’s conviction, and, finally, that there were inconsistencies between many witnesses’ in-court and out-of-court statements. The proper disposition is for the jury to decide during the guilt phase, as Gerald requires, whether the defendant should be convicted of murder considering, where appropriate, principles of vicarious liability. Once the jury finds defendant guilty, it must then determine whether it was defendant’s own conduct that *120 caused the death. If the two issues subsumed each other, there would be no necessity for an own-conduct charge when a murderer acts alone. For example, in State v. Biegenwald, we held that the failure to instruct the jury on accomplice liability, when neither that theory nor facts supporting such a charge was ever put before the jury, was not error. 126 N.J. 1, 19 , 594 A.2d 172 (1991). The Biegenwald holding does not affect a jury’s obligation to make a finding on the own-conduct issue. A jury must unanimously conclude that a defendant committed the charged murder by his or her own conduct to make that defendant death eligible. Simply stated, the two principles, although similar, are not identical. Chew, supra, 150 N.J. at 74 , 695 A.2d 1301 . Hence, in a capital case, there should first be a finding of guilt of murder in which the jury should simultaneously consider whether it was as principal, accomplice, or co-conspirator. Only then should the jury consider whether defendant caused that murder by his own conduct. I would suggest the verdict sheet currently in use be revised as follows: *121 [[Image here]] *122 [[Image here]] For affirmance — Chief Justice PORITZ and Justices POLLOCK, GARIBALDI, STEIN and COLEMAN — 5. For reversal — Justices HANDLER and O’HERN — 2. Non-death-eligible forms of murder include murder as an accomplice or conspirator and murder in the heat of passion or provocation. Formerly, serious-bodily-injury murder (SBI murder) was an alternative form of homicide, not a lesser-included offense of intent-to-kill murder, that also had to be charged *115 simultaneously. By virtue of constitutional amendment and statutory change, SBI murder is now death-eligible. N.J. Const. art. I, para. 12; L. 1993, c. 111 (signed May 5, 1993); State v. Mejia, supra, 141 N.J. at 486 , 662 A.2d at 311 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700282. Public record. Not legal advice.