State v. Marshall

O’HERN, J.,

concurring in part and dissenting in part.

With but certain reservations, I concur almost entirely with Justice Handler’s profoundly unsettling dissent insofar as it applies to the sentence of death in this case.

I continue, however, to believe that conscientious prosecutors and capable courts and counsel can fairly try capital cases. State v. McCrary, 97 N.J. 132 , 478 A.2d 339 (1984) (O'Hern, J., dissenting). Hence, unlike Justice Handler, I do not base my decision on the unconstitutionality of the Act but rather on the necessary exercise of our appellate jurisdiction in capital cases. When the United States Supreme Court restored the constitutionality of the death penalty, it imposed a concomitant obligation on states to provide “the further safeguard of meaningful appellate review” of every death sentence. Gregg v. Georgia, 428 U.S. 153, 195 , 96 S.Ct. 2909, 2935 , 49 L.Ed.2d 859, 886 (1976).

The twenty-five or so capital cases that we have reviewed and decided thus far comprise a class of capital cases tried before our interpretative decisions in State v. Biegenwald, 106 N.J. 13 , 524 A.2d 130 (1987); State v. Ramseur, 106 N.J. 123 , 524 A.2d 188 (1987); State v. Bey, 112 N.J. 123 , 548 A.2d 887 (1988) (Bey II); and State v. Gerald, 113 N.J. 40 , 549 A.2d 792 (1988). We have had to reverse capital cases often for reasons with which the Legislature itself has concurred. See, e.g., State v. Biegenwald, supra, 106 N.J. 13 , 524 A.2d 130 (burden is on State to prove beyond a reasonable doubt that aggravating factors outweigh mitigating factors before sentence of death may be imposed); and see L. 1985, c. 178, § 2 (to the same effect); State v. Bey, 112 N.J. 45 , 548 A.2d 846 (1988) (Bey I) (sentence of death may not be imposed on juvenile offender); and see L. 1985, c. 478, § 1 (to the same effect).

*209 Nonetheless, the public perceives those decisions and the application of other principles of law to capital cases as undermining the State’s death penalty statute. It calls for an execution to demonstrate the Act’s efficacy. But when, as Justice Handler puts it, the bell tolls for one who must die, the people of the State of New Jersey would undoubtedly expect that the condemned has received a fair trial consistent with our history and tradition.

By the Court’s own account, that did not happen here. This case contains admitted constitutional error. Ante at 169-207, 586 A.2d at 174-196; see Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). It is undisputed in this case that a promise was given to a critical State witness and that that promise of immunity was not disclosed to the defense. By failing to disclose that information to the defense, the State violated the rule of Brady v. Maryland, supra, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 . Evidence that may be used to impeach a witness’ credibility is favorable to an accused under Brady. Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972). A promise of immunity may be used to impeach the credibility of a witness. Id. at 154-55 , 92 S.Ct. at 766 , 31 L.Ed.2d at 109 . It is of no moment whether the promise of immunity was enforceable or not. Even if the non-disclosure were unintentional, we must still decide here if the promise of immunity was material — that is, whether, if disclosed, it could have had an effect on the outcome of the trial.

In United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), the Court held that for the purposes of a Brady inquiry, if the prosecution failed to disclose either exculpatory or impeachment evidence, and if the evidence is material, reversal is warranted. A majority of the Court agreed that evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 682, 105 S.Ct. at 3383 , 87 L.Ed.2d at 494 . Justices Blackmun and *210 O’Connor equate that standard with a “probability sufficient to undermine confidence in the outcome.” Ibid. Our Court has adopted a slightly different standard, the “real possibility” standard of State v. Carter, 91 N.J. 86, 113 , 449 A.2d 1280 (1982), ante at 200, 586 A.2d at 192.

The majority in this case has approached the non-disclosure issue by pointing to the overwhelming evidence of guilt, concluding that the error was not capable of producing a contrary result. But the rule of Brady does not extend merely to the question of guilt or innocence. Due process requires disclosure by the prosecution, on motion of the defendant, of evidence that would be favorable to the accused and that is material to guilt or punishment. Brady v. Maryland, supra, 373 U.S. at 87 , 83 S.Ct. at 1196 , 10 L.Ed. 2d at 218 .

I can agree that confidence in the guilt phase of this trial is not sufficiently undermined by the non-disclosure of the promise of immunity to Sarann Kraushaar to warrant reversal of the conviction. However, I cannot understand how one can say that there is no real possibility that had the promise been disclosed to the defense, the result of the proceeding would have been different in the sentencing phase. Kraushaar was a critical witness against Robert Marshall. Defense counsel notes that Billy Wayne McKinnon’s testimony was so suspect that the jury entirely acquitted co-defendant Larry Thompson in the face of McKinnon’s testimony. Sarann Kraushaar, on the other hand, was presented to the jury as one who was “inherently believable and virtually unimpeachable.” Defense counsel also points out that had the defense been able to bring out the extent of Kraushaar’s fear of being swept into this murder prosecution, the conditions that she and her attorney attached to her cooperation, and the fact that her “immunity” from prosecution was premised on her continued cooperation, the jury would have been able to consider her motives in testifying as she did and evaluate her testimony accordingly. It is not enough to say that her statement on the second occasion (September 27) paralleled her statement on the first occasion *211 (September 7). On September 27, she furnished the State with otherwise-unavailable evidence concerning all of her subsequent contacts with Marshall, including the statement in which she said that Marshall “became visibly shaken and turned ‘pale’ ” after hearing he had received a message from Louisiana and the statement in which she detailed Marshall’s account of having engaged a person from Shreveport, Louisiana, in a wager on the NBA playoff games.

If aware of Kraushaar’s deal with the prosecutors, the defense might have explored at trial the State’s failure to investigate her further. In her original statement to the police, Kraushaar stated that defendant once said to her, “I wish she [Maria] wasn’t around,” and asked her, “[d]o you know anyone who could take care of it?” She then supplied him with a name: Joey Harrison. Defendant testified that it was Kraushaar who had said, “wouldn’t it be great if Maria and Stanley [Kraushaar’s husband] were out of the picture?” Kraushaar also inquired of investigators if it were true that Mrs. Marshall’s pocketbook was found near the exit that she herself used when she traveled to Pinelands Regional School.

It is very difficult to speculate now on what experienced trial counsel could or would do with such information. We do know that other areas of cross-examination of this witness that defense sought to pursue were limited. In State v. Carter, supra, 91 N.J. at 139 , 449 A.2d 1280 , Justice Clifford explained in a dissent, later adopted by the Third Circuit in Carter v. Rafferty, 826 F.2d 1299 (1987), cert. denied, 484 U.S. 1011 , 108 S.Ct. 711 , 98 L.Ed.2d 661 (1988), what experienced defense counsel can do with credibility evidence.

Were this the only constitutional error in this case, I too might be able to agree that there is not a real possibility that the result of the proceeding would have been different. But by the Court’s own account there are ten other errors in this case. Among the most important of them are, of course, the infringement on defendant’s constitutional right to counsel. As the *212 majority notes, ante at 124, 586 A. 2d at 148, “a prosecutor’s statement suggesting that retention of counsel is inconsistent with innocence impermissibly infringes on a defendant’s constitutional right to counsel.” See United States v. McDonald, 620 F.2d 559, 564 (5th Cir.1980) (“It is impermissible to attempt to prove a defendant’s guilt by pointing ominously to the fact that he has sought the assistance of counsel.”). The State may not suggest that a defendant’s exercise of the right to counsel is probative of guilt. In the present case, the prosecutor’s questions were plainly designed to suggest that Marshall, if innocent, would not have retained counsel. The comment was error. The questions of co-defendant’s counsel did not undo the harm created by the prosecutor’s attempt to penalize Marshall’s exercise of his right to counsel. Lawyers in criminal cases are “necessities, not luxuries,” Gideon v. Wainwright, 372 U.S. 335, 344 , 83 S.Ct. 792, 796 , 9 L.Ed.2d 799, 805 (1963), and “even the most innocent individuals do well to retain counsel.” Bruno v. Rushen, 721 F.2d 1193, 1194 (9th Cir.1983), cert. denied sub nom. McCarthy v. Bruno, 469 U.S. 920 , 105 S.Ct. 302 , 83 L.Ed.2d 236 (1984). Although the forbidden inference is guilt, the implication is that there is something squalid about hiring a lawyer.

In addition, as Justice Handler points out, nothing can excuse, justify, or undo the State’s attempt to disparage Marshall’s exercise of his right to call witnesses on his behalf, guaranteed by the sixth amendment to the Constitution. In summation, the prosecutor stated:

And he has the audacity to bring in his three boys to testify. That’s obscene. And I’m not being critical of them because I would probably do the same thing. To put his boys on that witness stand is obscene, and for that there’s a place in hell for him. He will use anybody, he will say anything and he will do anything, including his own family, to get out from under, and that’s Robert Oakley Marshall. Make no mistake about it.

When did it become “obscene” for a man presumed to be innocent under our system of law to call witnesses on his own behalf?

*213 The dry curative instructions given by the trial court hardly sufficed to dispel the visual image of a place in hell for defendant that the prosecutor planted in the jurors’ minds. Those remarks were neither accidental nor the result of the passion of a heated trial. They were planned. Contemporary statements by the prosecution to the press set forth in the record demonstrate that. I cannot conclude that those instances of prosecutorial misconduct, weighed cumulatively with the other instances of trial error and with the constitutional error of non-disclosure of the promise of immunity made to Sarann Kraushaar and the special expenses paid by the State for the support of the McKinnon family, could not present at least a “real possibility” that there would have been a sentence other than death. That “real possibility” is magnified in this case because, as Justice Handler points out, the guilt and penalty phases were effectively telescoped into one proceeding. Death-eligibility and death-worthiness became as but one. The taint in one proceeding could not but have tainted the other.

The majority believes that those errors (harmless in its view and in mine in the guilt phase) cannot have influenced the penalty phase. But the processes of decision on guilt and punishment are entirely different. The verdict of guilt is the end product of the step-by-step construction of a logical and essentially incontrovertible chain of evidence inescapably linking Marshall to the Louisiana killers. Nothing can be realistically controverted. Marshall sent the money to Louisiana under a cover; he met McKinnon in New Jersey; his car tire was slashed to feign a breakdown on the Parkway; he had clearly-established motives to kill. The decision on guilt is logical, progressive, and overwhelming.

. But deciding whether a man shall live or die is not the product of building blocks of evidence. “Jurors [in capital sentencing] are not mere fact finders, but the ultimate determiners of whether the defendant shall live or die.” Bey II, supra, 112 N.J. at 162-63, 548 A.2d 887 . Even under today’s structure the jury’s function surely remains what Chief Justice *214 Weintraub described as “a moral judgment upon a consideration of the evidence.” State v. Conyers, 58 N.J. 123, 147 , 275 A.2d 721 (1971).

Despite every attempt to give it constitutional structure, capital sentencing is ineluctably individualistic. Why one defendant who has hired a killer to murder his wife and burn her body, see State v. Engel, 99 N.J. 453 , 493 A.2d 1217 (1985), should be spared the death penalty, and another, such as Marshall, should be sentenced to death remains forever entrusted to our juries. Obviously, the aggravating factor itself (the employment of a hired gun) does not bespeak the punishment of death because, as we know, the Engel jury did not sentence the defendant to death. There are undefinable and unidentifiable senses of moral quality in such acts. The jury’s judgment of the moral quality of the acts in this case was undeniably tainted by constitutional trial error. I know of no principle of logic by which the Court is able to conclude that there is no possibility that a jury in a fairly tried case could not have returned a life sentence.

Whether there will be “a place in hell” for this defendant remains for a greater judge than any of us. What we must decide is whether the sentence of death was imposed in accordance with law. A sentence of death is not imposed in accordance with law when a jury has been influenced by repeated instances of constitutional error and governmental misconduct.