State v. Marshall

LONG, J.,

dissenting.

I

When death is on the table, as it is in this case, courts should never stand on ceremony. Thus, unlike the majority, I would relax the time bar of Rule 3:22-12. Not only is a “significant liberty interest” at stake, State v. Mitchell, 126 N.J. 565, 580 , 601 A.2d 198 (1992), but life itself. Although the efficient administration of justice requires enforcement of procedural bars, certain interests transcend finality and efficiency. Among those concerns, life is paramount. Any potential prejudice to the State in having to retry Marshall’s penalty phase cannot trump his interest in life.

II

Separate and apart from my opposition to the application of any procedural preclusion to a post-conviction relief petition in a capital case, I believe that the majority’s reliance on Rule 3:22-5 to bar Marshall’s claim is misplaced.

We explained in State v. Marshall, 148 N.J. 89, 149 , 690 A.2d 1 (1997) (Marshall III) (quoting State v. Bontempo, 170 N.J.Super. 220, 234 , 406 A.2d 203 (Law Div.1979)), that a claim is procedurally barred under Rule 3:22-5 “only if the issue raised is identical or substantially equivalent to that adjudicated previously.” Relying on that notion, the majority holds that the issue before us has already been decided, citing argument F.18 in Marshall’s first post-conviction relief petition. As noted, F.18 was one of more *362 than 500 points raised in that petition. To say that its presentation was perfunctory is an understatement. Citing excerpts from the penalty phase jury instruction, F.18 stated only:

The defendant was denied his right to fundamental fairness, due process and his right to a fair and rehable penalty trial, and was subjected to cruel and unusual punishment, in violation of Article I, Paragraphs 1, 10 and 12 of the New Jersey Constitution, and the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, in that the trial court’s penalty phase instructions inadequately explained that a non-unanimous verdict was acceptable.

When Marshall’s first petition was denied, his appellate counsel reduced F.18 even further: “The trial court’s penalty phase instructions inadequately explained that a non-unanimous verdict was acceptable.”

Because F.18 and the appellate brief were so cursory, our treatment of them in the Marshall III opinion was as summary as the claim itself. The Court simply dismissed all of Marshall’s penalty-phase jury instruction arguments in a single sentence:

We reject those claims on the merits on the same basis that we reject the claims of penalty-phase ineffectiveness relating to trial counsel’s failure to request specific instructions in the penalty phase.

[Marshall III, supra, 148 N.J. at 257 , 690 A.2d 1 .]

The drafter of Marshall’s second petition focused his lens more carefully and argued that, although the penalty phase instruction nominally informed the jurors of the option of non-unanimity, it discouraged them from that course of action. More particularly, the petition argued that the charge “left the jury far less free to return a non-unanimous verdict than a unanimous one.” When that petition was denied, Marshall’s appellate brief put the argument this way:

The July Penally Phase Instructions So Denigrated The “Third Option” Of A Non Unanimous Verdict That Any Reasonable Juror Hearing Those Instructions Would Have Believed That Unanimity Was The Preferred Verdict And Non Unanimity A Less Preferred Verdict Returnable Only After The Judge Determined That A Unanimous Verdict Could Not Be Reached.

Contrary to the majority’s holding, there is a difference between failing to inform jurors that a non-unanimous verdict can be rendered and discouraging them from doing so. Those are entirely distinct legal claims, previously recognized by us as such. *363 Indeed, in State v. Ramseur, 106 N.J. 123, 312 , 524 A.2d 188 (1987), we emphasized that there are two critical aspects of a jury instruction on non-unanimity: (1) informing the jury of that option, and (2) leaving the jury “free to exercise” that option. That is the distinction between Marshall’s first and second petitions. Yet, the Court holds that the argument advanced here is “implicit” in Marshall’s first petition, effectively collapsing into one that Ramseur separated into two.

It may be, as the majority conjectures, that the drafters of F.18 intended it to encompass all of the relevant unanimity arguments. It also may be that this Court intended to dispose of all such claims. But neither acted so clearly or specifically that we can be assured that Marshall’s present claim was, in fact, considered and rejected. At best, whether Marshall’s new argument was included in F.18 is a debatable proposition. Where debatable, the benefit of the doubt should be accorded to a defendant facing death, and the issue raised should be reviewed on the merits.

Ill

Turning to the merits: Based on the infirmity in the jury instruction regarding unanimity, Marshall’s post-conviction relief petition should have been granted, and the matter remanded for a new penalty-phase trial.

The Judges Bench Manual for Capital Causes provides a template for the instruction at the penalty phase of a capital trial. The point of departure for every instruction is a proffer to the jury of all possible dispositions in the case. The first line of the Model Charge is as follows: “Members of the jury, the Legislature of New Jersey has given to you, as a jury and to each of you individually the responsibility of deciding whether defendant _is to be put to death or is to be subjected to a term in the New Jersey State Prison.” Judges Bench Manual for Capital Causes (November 2001). The Model Charge then directs the court to outline all possible sentences a defendant can receive. Neither of those requirements was satisfied here. At Marshall’s *364 sentencing trial, the instruction opened only with the option of death: “Ladies and gentlemen, now you have to decide whether or not the defendant is to be sentenced to death. Quite obviously, your ultimate decision in that regard is extremely important, both from the perspective of the State of New Jersey and from the viewpoint of the defendant.” The trial court made no mention of the possibility of a sentence other than death until much later in the charge. However, at that point, a different problem arose. The court instructed the jury that, if it found that the aggravating factor outweighed the mitigating factors, Marshall would be sentenced to death but if it determined that the aggravating factor did not outweigh the mitigating factors, Marshall would be sentenced to a period of thirty years to life with no parole for at least thirty years.

Unfortunately, immediately following that explanation, the trial court stated: ‘Tour verdict must be unanimous. You must all agree as to the existence or nonexistence of the alleged aggravating factor.” Both of those statements are incorrect. First, there is no requirement that the jury verdict be unanimous. Ramseur, supra, 106 N.J. at 312 , 524 A.2d 188 . A non-unanimous verdict is perfectly acceptable, and there is no preference for unanimity. State v. Hunt, 115 N.J. 330, 384-85 , 558 A.2d 1259 (1989). Second, although the finding of the existence of an aggravating factor must be unanimous, the jury clearly does not need to agree unanimously regarding the non-existence of an aggravating factor. Only one juror needs to disagree. Because the burden is on the State to prove the aggravating factors beyond a reasonable doubt, the State fails to meet that burden if one juror is not convinced. State v. Muhammad, 145 N.J. 23, 52 , 678 A.2d 164 (1996).

The trial court continued in equally problematic terms:

If, after careful, conscientious and thorough deliberations, you’re unable to agree upon your finding and your verdict, then you should report that to me. If in my opinion, further deliberations will not result in a unanimous agreement on the verdict, then I will impose the appropriate penalty, which will be the sentence of imprisonment to which I just referred.

*365 That instruction demonstrates confusion on the part of the trial court about its different roles at the guilt and sentencing phases of a capital trial. Although the trial court can require a jury to deliberate further in order to reach a unanimous decision during the guilt phase, its role at the sentencing phase is circumscribed to determining if there has been sufficient jury deliberation “to assure confidence in the ultimate verdict, whether or not it is unanimous.” Hunt, supra, 115 N.J. at 385 , 558 A.2d 1259 . The reason the trial court plays a different role in the two phases is because a jury deadlock at sentencing leads to a valid verdict, whereas a deadlock at the guilt phase leads to a mistrial. Here, the trial court indicated that it would determine whether continued deliberations would enable the jury to achieve a unanimous verdict, thus underscoring for the jury that unanimity was the goal. Had the court, in fact, required a non-unanimous capital jury to continue deliberating in order to achieve unanimity, a reversal clearly would have followed. Leaving the jury with the impression that unanimity is preferred should have the same effect. See ibid, (stating that instructions to continue deliberating “should not follow from a desire to produce unanimity, to assure that the jury has deliberated sufficiently to assure confidence in the ultimate verdict, whether or not it is unanimous”).

Those incorrect statements by the trial court were not isolated slips. Indeed, nearly the last words the jury heard from the court underscored what had gone before:

Since this is a criminal matter, of course, your verdicts, except with respect to the existence of mitigating factors, as I said before, must be unanimous. All twelve jurors deliberating must agree, and you should decide the ease without any bias or prejudice.

It is true that the jury need not be unanimous in its decisions regarding mitigating factors. It is entirely incorrect, however, to suggest even obliquely that the jury must be unanimous about everything else. Unlike the guilt phase, non-unanimity at the penalty phase results in a verdict. The twelve deliberating jurors are not required to agree about anything. That concept should be the focus of the penalty phase instruction. Not only was it not the *366 focus, but an incorrect spotlight on unanimity pervaded the charge.

The majority’s conclusion that the charge “did not mislead the jury,” ante at 360, 801 A.2d 1154 , is impossible to reconcile with reality. The charge was plainly wrong and prejudicial to Marshall. The danger of such an instruction is obvious. In the penalty phase of a capital case, a single juror can make the difference between life and death. N.J.S.A. 2C:ll-3f. That crucial truth must be part of the instruction. If jurors are consistently encouraged toward unanimity and are left with the impression that unanimity is the preferred verdict, the deck is essentially stacked against a legitimate and life-saving non-unanimous verdict. The point of deliberating at the penalty phase is to reach a verdict, unanimous or otherwise. Unanimity is not preferred over non-unanimity and jurors must understand that fact. See N.J.S.A. 2C:ll-3f (requiring the trial court to inform the jury that a non-unanimous verdict is acceptable and will result in a sentence other than death); see also State v. Brown, 138 N.J. 481, 527 , 651 A.2d 19 (1994) (holding that where single juror could disagree with verdict if given proper instruction on non-unanimity, but incorrect one is given, reversal is required).

Here, the jury was pondering the fate of a defendant with no prior criminal record. It is not at all fanciful to suggest that a single juror could have concluded that a sentence of at least thirty years without parole would be sufficient punishment for Robert Marshall, despite the awful crime for which he was convicted. That juror would be significantly less likely to reach such a result under the instructions that were given.

IV

This Court has overturned death sentences in the past due to jury instructions at sentencing that erroneously emphasized the importance of a unanimous verdict. See Hunt, supra, 115 N.J. 330 , 558 A.2d 1259 ; State v. Bey, 112 N.J. 123, 179-80 , 548 A.2d 887 (1988); Ramseur, supra, 106 N.J. 123 , 524 A.2d 188 ; see also *367 State v. Clausell, 121 N.J. 298, 346 , 580 A.2d 221 (1990) (reversing on other grounds but instructing trial court to deliver proper instructions on remand). Robert Marshall’s claim closely mirrors the claims of the defendants in those cases. His contention that the jury instructions at sentencing were erroneous and violative of his constitutional protections is correct and warrants reversal of his death sentence.

For affirmance — Chief Justice PORITZ, and Justices STEIN, COLEMAN, LaVECCHIA, and ZAZZALI — 5.

For reversal — Justice LONG — 1.