State v. Loftin

O’HERN, J.,

dissenting.

The principal issues in this appeal are whether the court committed reversible error when it failed to instruct the jury that it need not be unanimous as to whether the killing involved intent to kill or intent to inflict serious bodily injury and that it need not be unanimous in deciding whether defendant had committed the murder by his own conduct.

The points are almost identical to those raised in State v. Mejia, 141 N.J. 475 , 662 A.2d 308 (1995), and State v. Brown, 138 N.J. 481 , 651 A.2d 19 (1994). I did not agree with the Court’s opinion in State v. Brown that we should permit non-unanimous verdicts in the guilt phase of capital murder trials. However, that principle having been adopted as a fair trial right, both the Court and I are bound to apply its precedent.

In Mejia and Braum, the Court explained that a jury need not be unanimous on the various theories under which guilt for murder may be established. Thus, for example, one may be found *436 guilty of murder even-if jurors do not unanimously agree whether the actor’s role was that of principal, accomplice, or co-conspirator. State v. Brown, supra, 138 N.J. at 520-22 , 651 A.2d 19 . So too in non-capital murder cases we have never required that a jury be instructed that it must be unanimous on whether the defendant knowingly or purposely intended to cause death or knowingly or purposely intended to cause serious bodily injury resulting in death. State v. Mejia, supra, 141 N.J. at 486-87 , 662 A.2d 308 . The Mejia Court held that in the circumstances of that ease, the jury should have been instructed that it could have returned a verdict of guilty of murder, although it was not unanimous on the theory of murder, whether intentional or serious bodily injury. Ibid.

In State v. Gerald, 113 N.J. 40, 77-78 , 549 A.2d 792 (1988), we held that the legislative history of the Death Penalty Act limited the penalty of death to intentional killings. We thus ruled in Gerald that if required by the evidence, a jury must consider, in the alternative, whether a defendant purposely or knowingly caused death or purposely or knowingly caused serious bodily injury that resulted in death. Only the former offense renders a defendant death-eligible. Id. at 69-70 , 549 A.2d 792 .

In 1992, the New Jersey Constitution was amended to overrule Gerald and to permit capital punishment of a defendant who intended only serious bodily injury that resulted in death (SB I murder) without offending the prohibition against cruel and unusual punishment contained in the New Jersey Constitution. N.J. Const. art. 1, ¶ 12. The Legislature subsequently amended the Criminal Code to reflect that change. N.J.S.A. 2C:11-3i. However, because the homicide in this case occurred before those constitutional and statutory amendments, the Gerald distinction still applies.

In this case, decided after State v. Gerald but before Brown and Mejia , the trial court properly instructed the jury that it must decide beyond a reasonable doubt whether defendant intended to kill or to cause serious bodily injury. The charge did not, howev *437 er, instruct the jury that it need not be unanimous on the issue of intent. Likewise, the verdict sheet did not inform the jury that it had the option to return a non-unanimous or reasonably-doubtful finding on the distinction between intent to kill and to cause serious bodily injury, and on possible accomplice liability.

I agree with the majority that this is a thin case in which to find a possible accomplice or conspirator charge. See State v. Brown, supra, 138 N.J. at 528-29 , 651 A.2d 19 (holding that jury must be permitted to find defendant guilty of murder as either principal or accomplice). The more difficult issue is whether there was a rational basis on which the jury could have found that defendant intended only serious bodily injury when he shot the victim in the head. (If there is no Gerald issue, there is no Mejia issue of a non-unanimous verdict.)

We need go no further than the Court’s own ruling in State v. Mejia, supra, 141 N.J. 475 , 662 A.2d 308 . That case, like this case, involved a single fatal bullet wound. The Mejia Court stressed that “jury instructions are ‘crucial in a capital case because of the jury’s responsibility to decide whether a defendant shall live or die.’ ” Id. at 487 , 662 A.2d 308 (quoting State v. Bey II, 112 N.J. 123, 162 , 548 A.2d 887 (1988). The charge in this case, like the charge in Mejia , incorrectly required the jury to return a unanimous verdict on defendant’s state of mind. The Mejia Court catalogued those circumstances in which a Gerald error may be harmless.

In appropriate cases, we have found the failure to give a Gerald charge to be harmless when the evidence did not provide a rational basis for a finding that the defendant intended only serious bodily injury. The defendant’s actions in those cases, however, were so wantonly brutal that the jury could have concluded only that the defendant intended to cause death. See, e.g., State v. Bey III, 129 N.J. 557, 579 , 610 A.2d 814 (1992) (defendant stomped on victim with sufficient force to crush her chest); State v. Biegenwald [IV], 126 N.J. 1, 18 , 594 A.2d 172 (1991) (defendant fired four gunshots to victim’s head); State v. McDougald, 120 N.J. 523, 558-60 , 577 A.2d 419 (1990) (defendant slashed victims’ throats, bludgeoned one victim with a baseball bat, and expressed intent to loll victims before and after killings); State v. Hightower, 120 N.J. 378, 412-14 , 577 A.2d 99 (1990) (defendant shot victim at close range in chest, neck, and head, and then dragged victim into freezer); State v. Rose, 120 N.J. 61, 63-64 , 576 A.2d 235 (1990) (defendant fired *438 twelve-gauge, sawed-off shotgun point-blank into victim’s stomach); State v. Pitts, 116 N.J. 580, 614-20 , 562 A.2d 1320 (1989) (defendant threatened to kill victims two days before murder, inflicted twenty-five to thirty stab wounds with a combat knife, cut one victim’s throat twice, and paused to take victim’s pulse to verify death); State v. Hunt, 115 N.J. 330, 374-77 , 558 A.2d 1259 (1989) (defendant stated intent to kill immediately prior to stabbing victim twenty-four times).

[So too, in] State v. Harris, 141 N.J. 525 , 662 A.2d 333 (1995), ... we [found] the failure to give a Gerald charge [constituted] harmless error. The facts in that case, however, suggested] that when Harris shot the victim in the back of the neck, most likely while the victim was handcuffed and lying on the ground, that the shooting was intentional, and that Hanis was practically certain that death would result.

In contest, the failure to give a Gerald charge constitutes reversible error whenever the evidence is minimally adequate to provide a rational basis for the jury to hold a reasonable doubt that the defendant intended to cause death.

As we have stressed,

[although it might seem probable that the jury had intentional murder in mind, the question is whether there is a rational basis in the evidence on which the jury, if instructed to distinguish the two, might return a verdict of serious-bodily-injury murder. If there is, then the jury, as the finder of fact, must decide the matter. An appellate court cannot.

[State v. Mejia, supra, 141 N.J. at 488-89, 662 A.2d 308 (quoting State v. Harvey, 121 N.J. 407, 413 , 581 A.2d 483 (1990), cert. denied, 499 U.S. 931 , 111 S.Ct. 1336 , 113 L.Ed.2d 268 (1991)) (citations omitted and paragraph re-ordered).]

This case is far from Harris . In Harris , we stressed that in his final words to the jury, the defense counsel simply “asked for a ‘fair and impartial verdict’ on whether ‘Joseph Harris was insane or ... not insane on the night that this alleged offense occurred.’ ” 141 N.J. at 550, 662 A.2d 333 . Thus, Harris’ central theory was not to deny intent but to excuse it by reason of insanity. Forensic evidence, including a “shored exit wound” on the victim’s neck, showed that Harris shot the victim in the back as he lay on the ground. Ibid. In this case, there is no question that Marsh was not bound execution-style. He was standing at the time of the murder. There was a single gunshot wound to the side of the victim’s head. No one knows how the shot was fired.

The prejudice arising from the deficient jury charge was exacerbated by the trial court’s limitation of defendant’s due process and *439 confrontation rights at the guilt phase of the trial when it prohibited defendant from arguing that this was a killing in a robbery gone bad and from cross-examining witnesses regarding the possibility that others had participated in the homicide. In Mejia , the Court relied on several factual points in determining that a rational basis existed to support a charge that the defendant intended to cause only serious bodily injury. 141 N.J. at 489, 662 A.2d 308 . First, the Court noted that the murder arose from a conflict between two acquaintances regarding the return of money that the defendant had entrusted to the victim. Id. at 490 , 662 A.2d 308 . Further, Mejia explained to the police that the actual shooting was accidental, occurring when Mejia slipped in pursuit of the victim. Ibid. The Mejia Court, relied on this Court’s analysis in State v. Pennington, 119 N.J. 547 , 575 A.2d 816 (1990), which involved a holdup that ended in a shooting. There we explained that “to the extent that the evidence sufficed to support a charge that defendant acted recklessly, it raised the possibility that he did not intend to cause death.” State v. Mejia, supra, 141 N.J. at 490, 662 A.2d 308 (quoting Pennington, supra, 119 N.J. at 562 , 575 A.2d 816 ).

Because Loftin was unable to testify without exposing himself as a prior murderer, he presented no specific version of the facts; instead, he relied on evidence that the shooting could have been an accident. The defense would have presented a stronger theory of accidental shooting — a robbery gone bad — if it had not been unfairly restricted in developing its defense at trial. For example, the State’s pathologist testified on cross-examination that her findings did not preclude an accidental killing and that the black and blue mark on the victim’s right eye could have been the result of a blow (evidence of a struggle with defendant) or the bullet itself. In addition, neither the pathologist nor the State’s ballistic expert stated that there was any evidence that the gun was fired at point blank range. (In the penalty phase, the ballistics expert explained that the safety disengaged “easily” with a thumb movement.) Like the defendant in Mejia, supra, 141 N.J. at 490, 662 A.2d 308 , Loftin contends that the fact that only one bullet was *440 fired and that Marsh was alive when Loftin left the premises supports the existence of a rational basis for lack of intent to kill. Marsh survived at least nine and one-half hours after the shooting.

The State argues that it would be speculation to permit the jury to consider Loftin’s case as a robbery gone bad because there is no direct evidence to that effect. State v. Hightower, 146 N.J. 239, 267-69 , 680 A.2d 649, 663-64 (1996), explains how far the Court will permit the State to go in constructing a theory of a murder to escape detection without any direct evidence. In Loftin’s case, on similar circumstantial evidence, the State was allowed to speculate that this was an execution-style killing.

Of course the evidence strongly sustains the inference that Loftin intended to kill. Marsh was shot in the head and the trajectory of the bullet suggests that the gun was aimed at head level. The State argues that the gun required the exertion of substantial pressure (ten and a half pounds) in order to pull the trigger, that defendant was within a few feet of Marsh at the time of the shooting in the small confines of the gas station office, and that there were no defensive wounds on Marsh’s body, indicating a lack of struggle or physical provocation.

To test the proposition of whether there was a rational basis for a finding that defendant intended to cause only serious bodily injury, we need only ask ourselves whether, if the jury had returned a guilty verdict on that ground, the court would have set aside that verdict as being without any rational basis in the law. Although the State’s case is very strong, it is impossible to reach the conclusion that the facts provide, in the words of Mejia, supra, 141 N.J. at 488, 662 A.2d 308 , the “wantonly brutal” certainty that the trier of fact could reach no possible choice but to find intent to kill as evidenced in cases such as State v. Harris, supra, 141 N.J. 525, 662 A.2d 333 (victim was handcuffed and lying on ground when defendant shot him in back of head), State v.Bey III, supra, 129 N.J. 557 , 610 A.2d 814 (1992) (defendant stomped on victim with sufficient force to crush her chest), or State v. Biegenwald *441 IV, 126 N.J. 1 , 594 A.2d 172 (1991) (defendant fired four gunshots to victim’s head).

“We have [always] held that at the very core of the guarantee of a fair trial in a criminal case is the judicial obligation to insure that the jury’s impartial deliberations are based solely on the evidence and are made in accordance with proper and adequate instructions.” State v. Purnell, 126 N.J. 518, 531 , 601 A.2d 175 (1992). Each of the errors in this case was magnified by the incomprehensibly ineffectual manner in which the guilt phase of the trial was conducted. As we said in State v. Dixon, 125 N.J. 223, 253 , 593 A.2d 266 (1991), only a jury that knows the difference between the forms of murder that are death eligible and knows the questions it must answer may decide who shall be sentenced to death. This guilt-phase jury had no guidance as to which of its verdicts was capital and which might have been non-capital or non-unanimous.

I can understand why, but cannot accept, that the majority departs from its own precedent. To explain the reasons why a free society should afford fair trial rights to even the most reprehensible of its members remains difficult. Any explanation may not be enough for those who regard society as the loser when those safeguards produce unpalatable results. Perhaps only the experience of an unjust system of laws can nurture respect for law. Respect for law requires evenhanded application of its principles.

Because the trial court failed to instruct the jury that it was permissible to reach a non-unanimous verdict on defendant’s mental state, the jury may have erroneously believed that a failure to agree would result in a mistrial. This may have swayed certain jurors to abandon their honest convictions and join the majority. Because there was sufficient evidence to provide a rational basis for a finding that defendant did not intend to kill Marsh, the flawed jury instruction cannot be deemed harmless error. Mejia, supra, 141 N.J. at 488, 662 A.2d 308 . I would therefore reverse Loftin’s sentence of death and remand the matter for a new penalty phase trial.

*442 HANDLER, J., joins in this opinion.

For affirmance — Justices POLLOCK, GARIBALDI, STEIN and COLEMAN — 4.

For reversal and remandment — Justices HANDLER and O’HERN — 2.