State v. McDougald

HANDLER, J.,

concurring in part and dissenting in part.

In this case defendant was convicted of the murders of Walter Bass and Maria Bass. After a penalty hearing wherein the jury found beyond a reasonable doubt that aggravating factors outweighed mitigating factors with respect to each killing, the trial court imposed dual death sentences. The Court affirms the murder convictions and those for related offenses but reverses the death sentences due to charging errors on aggravating factor N.J.S.A. 2C:11-3c(4)(c). I concur in the Court’s judgment that defendant’s sentences must be reversed.

The Court concludes that there was no rational basis in the evidence presented at trial to support a charge on serious-bodily-injury murder. I believe that the nature of the assaults as well as surrounding evidence involving defendant’s relationship with the victims provide a foundation on which a properly-charged jury could rationally have concluded that the defendant’s design was to commit grievous bodily injury on his victims while indifferent to the ultimate consequences of his actions. Therefore I believe a Gerald charge was necessary and a jury determination on the issue indispensable.

I also disagree with the Court’s conclusion that the aggravated battery/torture component of aggravating factor N.J.S.A. 2C:11-3c(4)(c) may be resubmitted to the jury at a second penalty-phase hearing. I believe the Court’s review of the record to assess the weight of proof presented is too indulgent and deferential to the State, effectively reducing the standard of sufficiency.

*585 Furthermore, I believe it is appropriate in each of the Court’s capital cases to reaffirm my position that New Jersey’s capital punishment statute violates state constitutional principles. State v. DiFrisco, 118 N.J. 253, 283 , 571 A.2d 914 (1990) (Handler, J., dissenting and concurring). I continue to base my differences with the Court on those grounds.

I.

New Jersey defendants cannot be subjected to the death penalty for murder if their corresponding intent is found to be anything less than knowingly or purposefully to cause death. State v. Gerald, 113 N.J. 40, 80 , 549 A.2d 792 (1988). If, within the body of evidence presented at trial, proofs exist that provide a rational basis for a jury verdict of a lesser-included offense, a defendant is constitutionally entitled to have that alternative offered for jury deliberation. Ibid.; State v. Coyle, 119 N.J. 194, 222-223 , 574 A.2d 951 (1990); see State v. Crisantos, 102 N.J. 265, 276 , 508 A.2d 167 (1986). Our jurisprudence recognizes the supremacy of the principle that trial fairness is dependent on adequate and appropriate instructions to the jury. See State v. Grunow, 102 N.J. 133, 148 , 506 A.2d 708 (1986) (“ ‘[The] judicial obligation, to assure the jury’s impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions, is at the core of the guarantee of a fair trial.’ ” (quoting State v. Simon, 79 N.J. 191, 206 , 398 A.2d 861 (1979)).

The Court’s resolution of the Gerald problem in this case signals a further retreat from the indispensable constitutional constraints on the institutional infliction of death. This is another in a string of capital cases in which the Court has engaged in the disturbing practice of trivializing and diminishing capital defendants’ significant rights to jury charges on lesser-included offenses. See State v. Rose, 120 N.J. 61, 69-70 , 576 A.2d 235 (1990) (Handler, J., dissenting); State v. Hightower, 120 N.J. 378, 424-425 , 577 A.2d 99 (1990) (Handler, J., *586 concurring and dissenting); State v. Pitts, 116 N.J. 580, 641-50 , 562 A.2d 1320 (1989) (Handler, J., dissenting); State v. Hunt, 115 N.J. 330, 403-11 , 558 A.2d 1259 (1989) (Handler, J., dissenting); State v. Rose, 112 N.J. 454, 551-62 , 548 A.2d 1058 (1988) (Handler, J., dissenting). The majority concedes that the lesser-included homicide was not charged because the jury instructions incorporated without distinction intent-to-kill murder and intent-to-inflict-serious-bodily-injury murder. Ante at 558-559, 577 A.2d at 436-437 . Although claiming to adhere to the standards set forth in Crisantos for determining when the record contains minimally adequate evidence that necessitates lesser-offense charges, the Court strays into a comparative assessment of the weight of proofs and rejects the necessity for a clear and separate charge on the lesser murder.

The Court recounts the details of the killings contained in defendant’s statement and his actions after the murder, including declarations that he had “killed” the Basses. The Court also considers defendant’s failure to claim an intent only to harm his victims and defense counsel’s concessions of guilt at trial, and concludes that defendant was not entitled to a Gerald charge. Ante at 558-559, 577 A. 2d at 437 . The Court explains:

The extreme severity of the victims’ injuries as well as the defendant’s behavior before and after the crime present not even a scintilla of evidence to allow us to conclude that he merely struck out at the Basses in a rage but did not intend to kill them. The fact that McDougald was angry at the Basses when he murdered them does not negate the evidence that he intended their deaths.

(Ante at 559, 577 A.2d at 437 .]

The Court focuses its attention exclusively on the evidence of intent to kill. Once done, the existence as much as the weight of that evidence blinds the Court to the less prominent but nonetheless existent contrary proof. After concluding that there is no justification for a Gerald charge, the Court generates support for its result by giving weight to the evidence in support of the greater charge and then surmising that a jury verdict on the lesser crime would have been “ ‘inconceivable.’ ”

Under the Court’s approach,

*587 a “rational basis is not established unless a defendant has not only pointed to evidence that could support a conviction on the lesser charge, but also, and quite apart from this, explained why the jury should have credited that evidence by assailing the strength of the evidence of the greater charge.” ... [B]ecause the degree to which a jury will believe and weigh evidence is inscrutable, the question of what weight to afford evidence that could be read to support a lesser charge had previously been left to the jury. Rational basis had been established in our prior cases by an existence of slightly more than “a scintilla” of evidence of the lesser charge, not by any assessment of its weight as against the weight of the greater charge____ [T]o the extent the majority’s approach requirefs] courts both to hypothesize the weight a jury would have ascribed to a lesser charge and then assess the weight of that evidence as against the weight of the greater charge in order to determine whether a rational basis exists to charge the lesser offense, “it departs from all precedent, imposes an unrealistic standard, and usurps the function of the jury.”

[State v. Hunt, supra, 115 N.J. at 405 , 558 A.2d 1259 (Handler, J., dissenting) (citations omitted).]

The Court in effect has undertaken to combine in one determination the functions of trial court, jury, and appellate court: it finds as a threshold matter no rational basis in the evidence to support the lesser charge; it simultaneously weighs the evidence in favor of the greater charge to demonstrate both the unavailability of the lesser charge and the exclusive existence of the greater charge; and, on review, finds no reasonable prejudice because it is inconceivable that a jury could disagree with its determination.

The record in this case reveals a rational basis for the Gerald charge. The State’s guilt-phase evidence showed that defendant and the victims were associated primarily through the victims’ daughter, with whom defendant had engaged in a sexual relationship despite her parents’ objections. The antagonism between the parties as a result of this relationship escalated in the months preceding the murders, particularly when the parents learned of their daughter’s supposed pregnancy. Maria Bass twice called the police after defendant had forcibly entered her home, and was heard to say that she was planning to press charges against him related to sexual contact with her daughter, all of which caused defendant anger and anxiety, and for which he vowed to “get” them. About the same time defendant’s wife left him and took the couple’s newborn son *588 with her, a traumatic event defendant blamed on the Basses and their daughter.

Defendant’s statement, reciting the deadly encounters and the infliction of the various blows on the Basses, supports the proposition that defendant sought to reciprocate for the harm perceived to have been inflicted on him, while unconcerned about results. First he confronted Walter Bass and, coincidental to slashing his throat and stabbing his chest, repeatedly asked why he and his wife were “trying to hurt [him].” As Walter Bass fell to the floor, defendant ceased that attack. At his accomplice’s instigation and because Walter Bass had begun crawling out of the back room, he returned and hit Walter with the baseball bat. The assaults on Maria Bass are equally indicative of a vengeful intent to do grave harm. Defendant inflicted a series of blows to Maria Bass’ head, slashed her throat, and forced the baseball bat into her body, offering as explanation for the last assault, “[t]hat’s for having Antoinette.” Likewise, defendant’s statements after the murder evidence his recognition only that the victims had died, not that death was his conscious objective.

This is not the case where all of the blows are of lethal quality, like the execution-style killing in State v. DiFrisco, supra, 118 N.J. 253 , 571 A.2d 914 . On this record a jury could conclude that defendant’s primary objective was to injure and maim these people in return for the harm he perceived that they had caused him, to inflict physical mayhem on them to the same extent they had caused him to suffer mentally, without concern for whether they lived or died.

There is no dispute that the assaults on the victims were exceptionally brutal and cruel. However, the extent of brutality is not the test of whether or not a rational basis for a serious-bodily-injury charge exists. The spectrum of intent on which the distinction between intent to kill and intent to cause a victim serious bodily injury is too narrow and the difference too subtle to foreclose summarily the option in any case except that *589 where the evidence unequivocally precludes an inference that the defendant intended to inflict serious bodily injury on his victim while oblivious to or ambivalent about the ultimate result. As the Court admits in State v. Pennington, 119 N.J. 547, 562-563 , 575 A.2d 816 (1990):

The question is not whether a finding of intent to cause serious bodily injury is likely, but whether the evidence provides a rational basis for such a finding. If so, the jury should have been permitted to accept or reject that alternative. Given the inherent ineffability of mental states, the detzermination of defendant’s specific intent is best left to the jury. Crisantos, supra, 102 N.J. at 284, 508 A.2d 167 (O’Hern, J., concurring in part and dissenting in part).

The Court’s opinion reveals a fundamental misinterpretation of the “intent” element of serious-bodily-injury murder. That crime entails the intentional infliction of wounds on the victim sufficient to cause death, and carries the maximum penal consequence permitted by law short of capital punishment. Killings involving less culpable, nonintentional mental states are proscribed by other penal provisions, such as the manslaughter provisions. Moreover, the line between practical certainty that death will be the result of actions and purposeful infliction of wounds sufficient to cause death is blurred. Nevertheless, the distinction is of profound consequence. Only the defendant who seeks to kill, as opposed to the defendant who seeks to injure but who is indifferent to the victim’s jeopardy, may be sentenced to death. “It is critical, then, that the jury be given a charge that draws the distinction between one who intends the death of another, and is therefore death-eligible, and one who intends to cause serious bodily injury to, but not the death of, the victim.” State v. Hunt, supra, 115 N.J. at 403 , 558 A.2d 1259 (Handler, J., dissenting).

Another consideration militates strongly in favor of defendant’s position. In view of defendant’s admitted responsibility for the killings, and his understanding when charged for these crimes that both serious-bodily-injury and intent-to-kill murder were capital crimes, defense counsel’s strategy throughout the trial was simply to appear forthright to the jury, in the hope that this would lend credibility to mitigating evidence. The *590 majority notes that “[a]t trial the defense conceded that the prosecution’s version of the facts was essentially correct.” Ante at 559, 577 A.2d at 437 . However, defendant must be given the chance to reappraise his defense and marshall evidence in light of the subsequent clarification of the law under Gerald . The failure to undertake the presentation of evidence to support serious-bodily-injury murder cannot legitimately or fairly be held against defendant or prejudice his claim for a retrial under proper instructions.

The Court ignores the fact that at trial defendant was necessarily and understandably ignorant of the significant distinction between the two forms of intentional murder. In my view, proceeding under such misinformation cannot be the foundation of harmless error analysis. As I explained in State v. Hunt:

We have held that at the very core of the guarantee of a fair trial in a criminal case is the judicial obligation to assure the jury’s impartial deliberations based solely on the evidence and in accordance with proper and adequate instructions. State v. Simon, 79 N.J. 191, 206 [ 398 A.2d 861 ] (1979)____ Indeed, “so paramount is the duty to insure a fair trial that a jury must deliberate in accordance with correct instructions even when such instructions are not requested by counsel.” State v. Grunow, 102 N.J. 133, 148 [ 506 A.2d 708 ] (1986); see State v. Moore, 113 N.J. 239, 288 [ 550 A.2d 117 ] (1988) (trial court’s failure to charge on diminished capacity constitutes reversible error although charge was never requested by defense counsel.

[ 115 N.J. at 408 , 558 A.2d 1259 (Handler, J., dissenting).]

To deprive a capital defendant retroactively of a lesser included, alternative form of murder which he or she would have been entitled to address and which arguably would have reduced the chance of a death sentence is unconscionable. See State v. Hightower, supra, 120 N.J. at 425, 577 A.2d 99 (Handler, J., dissenting and concurring).

By joining both intent-to-kill murder and intent-to-inflict-serious-bodily-injury murder into one count of the indictment and effectively trying the case as if they were one crime, the indictment in this case “fundamentally misled [and] misinformed the accused as to the crime charged.” State v. Wein, 80 N.J. 491, 496 , 404 A.2d 302 (1979). This violated defendant’s right to be notified of the specific crimes against him so as to *591 be able to prepare a defense. The indictment in this case distorted the factual elements of the crimes, and thus did not adequately “give [the] ‘defendant notice of what he must prepare to defend.’ ” State v. Boratto, 80 N.J. 506, 518 , 404 A.2d 604 (quoting State v. Lamoreaux, 29 N.J.Super. 204, 207 , 102 A.2d 68 (App.Div.), aff'd, 16 N.J. 167 , 107 A.2d 729 (1954)). On that basis defendant is also entitled to a reversal of his conviction for murder.

II.

I disagree with the Court’s assessment of the sufficiency of the evidence of aggravating factor c(4)(c). The Court acknowledges, as it must, that the instructions on that factor given at this pre-jRamseur trial constitute reversible error. The Court identifies the deficiencies in the charge as surrounding the two-prong showing that must be made by the State beyond a reasonable doubt with respect to the synonymous aggravated battery/torture concept. Ante at 566-567, 577 A.2d 441 . In State v. Ramseur, 106 N.J. 123 , 524 A.2d 188 (1987), the Court held that aggravated battery/torture contemplates an intent antecedent to and distinguishable from the intent to kill—there must be proof that defendant intended to cause his victims „. gratuitous suffering. In other words, the State must proved that, in inflicting the various assaults, defendant had an independent purpose to cause suffering. This was not explained correctly. Such evidence is wholly lacking in this case, however, and thus that component of the factor should also be foreclosed on retrial. See, e.g., State v. Biegenwald, 110 N.J. 521, 542 , 542 A.2d 442 (1988).

The Court draws a novel and erroneous distinction between aggravated battery and torture. The former term appears now to describe physical suffering and the latter mental suffering. See ante at 565-566, 577 A.2d at 440-441 . Aside from eschewing such a distinction in Ramseur and instead holding that the focus on defendant’s intent “eliminates the need for a distinc *592 tion between the two statutory terms,” 106 N.J at 209, 524 A.2d 188 , the ordering of the Court’s definitional language would seem to contemplate the reverse:

Torture or aggravated battery to the victim shall be found if the defendant intended to cause, and did in fact cause, severe physical or psychological pain or suffering to the victim prior to the victim’s death____

[State v. Ramseur, supra, 106 N.J. at 211 , 524 A. 2d 188 .]

The Court goes on to evaluate the sufficiency of the State’s guilt-phase evidence with respect to aggravated battery/torture and concludes that either aspect may be submitted to a jury at a subsequent penalty hearing. With respect to Walter Bass, the Court notes that he sustained various stab wounds and, after starting to crawl toward the kitchen, was struck with the bat, and concludes: “It is possible that Mr. Bass endured severe physical pain coupled with the psychological suffering of knowing his wife and step-daughter were in grave danger of being killed.” Ante at 566, 577 A.2d at 441 . Likewise, the Court hypothesizes that the severe injuries inflicted on Mrs. Bass, along with the accompanying statement, “ ‘[t]hat’s for having Antoinette,’ could have caused her great physical and psychological suffering if she was still able to feel and hear him.” Ante at 566, 577 A.2d at 441 .

The Court focuses exclusively on the nature of the victim’s injuries. What is patently absent from the Court’s analysis is a discussion of any tangible evidence proving defendant’s intent. See State v. Hunt, supra, 115 N.J. at 414 , 558 A.2d 1259 (Handler, J., dissenting) (evidence was insufficient to support the submission of factor c(4)(c) to the jury because “[ajside from evidence that defendant had fired the shotgun and was knowledgeable about its capacity to inflict devastating injury, there was no proof that defendant’s intention was to cause [the victim] pain and suffering, rather than to kill him.” (quoting State v. Rose, supra, 112 N.J. at 431 , 548 A.2d 1058 )). Concerning defendant’s intent, the Court states:

Defendant had repeatedly slashed and bludgeoned the victims before killing them. Walter Bass was awake and knew he was dying and that defendant would also probably kill his wife. The jury could surmise that defendant *593 purposely awoke Mrs. Bass with the first blow to the head and wanted her to know from that point on that she was going to die. Although there are facts that could be interpreted to contradict those elements of c(4)(c), there is sufficient evidence to allow the issue to be submitted to the jury on remand.

[Ante at 567, 577 A.2d at 441 (emphasis added).]

It is clear from that rendition of the evidence that the Court is dealing only in speculative possibilities. It is intolerable to allow a jury to engage in the same speculations to impose a death sentence. A finding based on sufficient facts requires tangible evidence, not vague suppositions. See State v. Tropea, 78 N.J. 309, 316, 394 A.2d 355 (1978). In my opinion there is no such evidence in this case and therefore, as a matter of law, the State may not seek to reestablish the aggravated battery/torture component of aggravating factor c(4)(c). See State v. Biegenwald, supra; State v. Ramseur, supra, 106 N.J. at 460-61 , 524 A.2d 188 (Handler, J., dissenting) (citing State v. Lynch, 79 N.J. 327 , 399 A.2d 629 (1979).

II.

The foregoing reasons impel me to concur in part and dissent in part from the Court’s opinion.

For affirmance, vacation and remandment—Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—7.

Opposed—None.