State v. Nelson

COLEMAN, J.,

concurring in part and dissenting in part.

I concur in the Court’s opinion in all respects except its holding that defendant’s death sentence must be vacated because of a Brady violation.

The three elements of a Brady violation are: (1) the evidence must be favorable to the accused, (2) it must be suppressed by the prosecution, and (3) it must be material. Moore v. Illinois, 408 U.S. 786, 794-95 , 92 S.Ct. at 2562, 2568, 33 L. Ed.2d 706, 713 (1972). I agree with the majority that the first two elements are satisfied. My disagreement with the majority concerns the materiality element. I disagree with the majority’s conclusion that evidence of the Norcross civil complaint “would have profoundly altered the jury’s perspective of the ease.” Ante at 500, 715 A.2d 287 -88. I also disagree with the majority’s conclusion that it is “reasonably probable that the jury would have given greater weight to the mitigating factor(s) thus substantiated and would not have been convinced beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating ones.” Ante at 501, 715 A.2d 288 . I dissent because I am not persuaded that evidence of the Norcross civil complaint would have, based on a reasonable probability, affected the jury’s decision to impose the death penalty for. the murder of Officer Norcross. The jury’s verdict is worthy of the confidence of this Court.

I

During the penalty phase, defendant sought to prove the following mitigating factors: (1) that defendant was under the influence of extreme mental and emotional disturbance insufficient to consti *533 tute a defense to prosecution, N.J.S.A. 2C:ll-3a(5)(a); (2) that defendant’s capacity to appreciate the wrongfulness of her conduct and conform to the requirements of the law was significantly impaired, N.J.S.A. 2C:ll-3a(5)(d); and (3) the catch-all factor, N.J.S.A. 2C:ll-3a(5)(h). As part of the catch-all factor, defendant’s major contention was that the law enforcement officers who sought to execute the search of defendant’s bedroom had inadequate training, preparation, and support from the Camden County Prosecutor’s Office and the Haddon Heights Police Department for dealing with a mentally disturbed person, especially one known to have a firearm.

In support of defendant’s mitigating argument that both the Camden County Prosecutor’s Office and the Haddon Heights Police Department had inadequately trained their officers, defendant offered the testimony of Theodore Novak, Esq., of the New Jersey Division of Mental Health and Guardianship Advocacy. Novak testified that the police should have taken defendant to a mental health screening center immediately after she made the threat to kill herself, rather than attempting to arrest her. In addition, defendant presented the testimony of Dr. Paul McCau-ley, professor of criminology at Indiana University of Pennsylvania. Dr. McCauley testified, agreeing with Novak, that there were errors that occurred before the police left the Nelson home. Dr. McCauley testified that, based on the facts known to the officers before returning to the Nelson residence, the search warrant was clearly a “high risk warrant” and neither the Camden County Prosecutor’s Office nor the Haddon Heights Police Department had any formal grading system for the risk involved in the execution of warrants; nor did they have any formalized protocol for dealing with the execution of a dangerous warrant. According to Dr. McCauley, if such a plan were in place, the actions of the police would have been very different. He suggest ed an assortment of various techniques that the police could have used. It was Dr. McCauley’s opinion that the police badly mishandled the execution of the warrant, and that the lack of formal *534 ized procedures for warrant service substantially contributed to the deaths of Investigator McLaughlin and Officer Norcross.

For the State, Detective Norcross was the second witness to testify on April 29,1997, the first day of the penalty trial. He was not questioned concerning the appropriateness of the officers’ actions when executing the warrant. He testified that it was Investigator McLaughlin’s decision regarding the procedure to be used in executing the warrant. On cross-examination, defense counsel did not explore the issue further with Detective Norcross.

As the majority opinion accurately reflects, it was discovered after the trial had ended that Detective Norcross had filed a civil complaint against defendant, her parents, the Camden County Prosecutor’s Office, and the Haddon Heights Police Department. The complaint, which was not verified, was filed on April 18,1997, just two days before it would have been barred by the statute of limitations. The complaint alleged that the Camden County Prosecutor “was negligent in the performance of his duties by failing to provide proper training and instruction to ensure the safety of the Haddon Heights Police Officers; failing to instruct his staff to so warn the officers of the Haddon Heights Police Department; and was otherwise negligent.” Detective Noreross’s complaint also alleged that defendant’s physician negligently provided pre-opera-tive and post-operative treatment for “gender identity confusion.” Although the complaint was served on the Camden County Prosecutor five days before the jury returned with its verdict, defendant was not served until after the jury returned its verdict.

With respect to the murder of Officer Norcross, a single interrogatory was listed on the verdict sheet regarding the lack of proper training and supervision of the officers executing the search warrant. It stated:

any other factor which any juror finds relevant to Leslie Nelson’s prospects of rehabilitation or to the circumstances of the offenses, including, but not limited to the defendant’s contention that the law enforcement officers, who on the 20th of April, 1995 were trying to carry out an investigation and search for illegal firearms in Leslie Nelson’s bedroom, had inadequate training, preparation, and support from the Camden County Prosecutor’s Office and from the Haddon Heights Police *535 Department for dealing with a disturbed person, particularly one known to possess a firearm.

The jury was instructed that it could find any mitigating factor from any reliable evidence, that there was no burden of proof, and that unanimity was not required. Although the same three mitigating factors were submitted to the jury regarding each of the two murders, the jury voted differently on the factors for each murder. In the case of Investigator McLaughlin, the jury unanimously found extreme mental or emotional disturbance, two jurors found that defendant did not appreciate the wrongfulness of her conduct, and four jurors found that the catchall factor was established. In contrast, in the case of Officer Norcross, the jury voted unanimously to reject the first two mitigating factors, and three jurors voted for the catchall factor.

II

The focus now shifts to an analysis of whether suppression of the civil complaint satisfies the Brady materiality element. As the majority makes clear, the United States Supreme Court has stated that the materiality standard can be satisfied “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. A ‘reasonable probability5 is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 , 105 S.Ct. 3375, 3383 , 87 L. Ed.2d 481, 494 (1985). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality5 in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-110 , 96 S.Ct. 2392, 2400 , 49 L. Ed.2d 342, 353 (1976). New Jersey has adopted the- Bagley standard of materiality. State v. Marshall, 148 N.J. 89, 155-56 , 690 A.2d 1 (1997); State v. Knight, 145 N.J. 233, 247 , 678 A.2d 642 (1996).

“The reviewing court should assess the possibility that [error] might have occurred in light of the totality of the circum- *536 stances____” Bagley, supra, 473 U.S. at 683 , 105 S.Ct. at 3384 , 87 L. Ed. 2d at 494 . Defendant claims that with knowledge of the lawsuit, she would have vigorously cross-examined Detective Nor-cross about his claim of inadequate training, and also prevented the State from attacking defense experts in summation. I find those arguments to be unpersuasive. I am confident that defense counsel’s knowledge of the civil complaint would not have changed the verdict.

Contrary to defendant’s assertion, the suppressed complaint itself is not substantive evidence. The unverified complaint was signed by counsel for plaintiff and represented mere allegations made by counsel on behalf of Detective Norcross. See R. 1:4-5. The complaint was signed and filed April 18, 1997. The fact that the complaint may be deemed to constitute hearsay insofar as Detective Norcross is concerned does not mean that defense counsel could not have used the document to assist with questioning him. Given what defense counsel knew about the case, however, the same questions could have been asked without the complaint. Strategic choices made by defense counsel as to plausible options are virtually unchallengeable. State v. Davis, 116 N.J. 341, 357 , 561 A.2d 1082 (1989).

Defense counsel knew that the two murders occurred on April 20, 1995, and that Detective Norcross was shot in the same incident. Defense counsel served notice that improper training and supervision of the law enforcement officers executing the search warrant were included in the catchall mitigating factor. Indeed, they urged the trial court to treat that allegation as a separate mitigating factor. They also knew that the Borough of Haddon Heights and the Camden County Prosecutor were the public entities that they alleged in the notice of mitigating factors to have negligently trained and supervised the persons executing the warrant. They also knew that Detective Norcross was one of those who went into the house to execute the warrant and was severely injured when he, too, was shot. Defense counsel are presumed to have known that because Detective Norcross was *537 injured, he had ninety days to serve notice on any public entity of intent to file suit, N.J.S.A. 59:8-8a, and two years from April 20, 1995, to file a complaint. N.J.S.A. 59:8-8b. Given the state of defense counsel’s knowledge, it was clear that when Detective Norcross testified on April 29, 1997, if no civil complaint had been filed by then it was time barred.

In addition, counsel should have anticipated that the detective would have been motivated to enhance, not hurt, his civil claim. Any answer that would have been damaging to defendant’s alleged mitigating factor would be equally damaging to the detective’s civil claim. Statements made under oath that are contrary to the declarant’s pecuniary interest would be admissible against that person in a civil action pursuant to N.J.R.E. 803(c)(25). The fact that one of the murder victims was the detective’s brother would not have increased the risk that his answers might have been against defendant’s best interest. When the law enforcement officers left defendant’s home to obtain the search warrant, they had already concluded that she was very unstable. She was described as being paranoid. Under the circumstances, the officers created the strong potential for concurrent causes of Detective Norcross’s brother’s death. The allegations in the complaint were that the police were improperly trained, but there were no allegations that the officers whom defendant killed were negligent.

Defendant cannot demonstrate how the complaint was material, or how knowledge of the complaint would have affected the result of the trial. Although the majority assumes that “the allegations would have profoundly altered the jury’s perspective of the case,” ante at 500, 715 A.2d 287 -88, the jury would not have reached a different conclusion even if presented with the complaint because it held that each aggravating factor alone outweighed the mitigating factors. The majority claims that evidence of the complaint could have led the jury to find “the existence of one or more of defendant’s mitigating factors.” Ante at 501, 715 A.2d 288 . However, negligent supervision was a part of only one of defendant’s mitigating factors, the catch-all factor. Even if the jury accepted *538 defendant’s factor in mitigation, the sum of the aggravating factors would still have outweighed that single mitigating factor related to Officer Norcross’s murder. There is no likelihood that the jury would have reached a different conclusion if defendant had knowledge of the complaint.

The facts in the case compellingly establish why the jury imposed the death sentence for the murder of Officer Norcross and not for the murder of Investigator McLaughlin. Investigator McLaughlin went into the house to execute the warrant and was shot inside the house. All of the jurors agreed that defendant was under the influence of extreme mental or emotional disturbance when she killed McLaughlin. Two jurors found that defendant lacked the capacity to appreciate the wrongfulness of her conduct at that time. Four jurors found that the catchall mitigating factor had been established.

In contrast, Officer Norcross did not arrive at the scene until after the shooting in the house had ended. He responded as part of a backup team. He was shot by a rifle while he was standing across the street in a driveway. The jurors unanimously rejected the first two mitigating factors. Three jurors, as opposed to four, voted that the catchall mitigating factor had been established. The circumstances surrounding the two murders were so different that I am confident that the suppressed complaint does not meet the materiality standard.

In addition, defendant informed the jury through her expert, Dr. McCauley, that not only was there improper training and supervision of the officers executing the warrant, but that subsequent to the murders, the Camden County Prosecutor and the Borough of Haddon Heights had instituted written procedures “relating to the execution of high risk warrants.” Although presentation of that evidence to show improvements in operational procedures subsequent to the murders to infer an admission by the public entities that they were previously negligent would have violated N.J.R.E. 407 in a non-capital case, the impact of that *539 evidence was much more helpful to defendant than the suppressed complaint would have been.

Finally, the failure to question Detective Norcross about a potential or pending civil complaint was a matter of strategy. Defendant’s trial strategy was to rely on experts to establish improper training and supervision. To do that, defendant had to concede that the preconditions for the admission of expert testimony had been met. Generally, there are three basic requirements for the admission of expert testimony: “(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently rehable; and (3) the witness must have sufficient expertise to offer the intended testimony.” State v. Jamerson, 153 N.J. 318, 337 , 708 A.2d 1183 (1998) (quoting State v. Kelly, 97 N.J. 178, 208 , 478 A.2d 364 (1984)). The allegations in the suppressed complaint did not make the detective an expert or affect any potential of qualifying him as an expert.

Not only was the complaint not material under Brady, but it was cumulative to other evidence presented at trial. The subject of negligent police training was fully litigated through the presentation of defense experts, including Dr. McCauley. “Evidence that is merely cumulative does not create a reasonable possibility that the verdict would have been affected.” State v. Carter, 91 N.J. 86, 114 , 449 A.2d 1280 (1982).

“[Tjhere [is] no reasonable possibility that a different verdict would have arisen had the [complaint] been disclosed.” State v. Marshall, 123 N.J. 1, 207 , 586 A.2d 85 (1991). “For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose.” Agurs, supra, 427 U.S. at 108 , 96 S.Ct. at 2399 , 49 L. Ed.2d at 352 .

I would affirm the imposition of the death penalty.

*540 GARIBALDI, J., joins in this dissent.

For vacating and remandment — Justices HANDLER, POLLOCK, O’HERN and STEIN — 4.

For affirmance — Justices GARIBALDI and COLEMAN — 2.