State v. Wakefield

*569 Justice WALLACE, JR.,

dissenting.

When life hangs in the balance, error has no place. Indeed, “the nature of the death penalty, which leaves no room for the error tolerable in other cases, requires ‘a level of error-free process that is commensurate with the criminal sanction of death.’ ” State v. Papasavvas, 163 N.J. 565, 636 , 751 A.2d 40 (2000) (Long, J., dissenting) (quoting State v. Bey, 112 N.J. 45, 119 , 548 A.2d 846 (1988) (Handler, J., concurring)), remanded by 170 N.J. 462 , 790 A.2d 798 (2002).

In defendant’s penalty phase trial, the process was far from error-free. In fact, there were numerous errors which, when considered cumulatively, served to deprive defendant of the right to a fair trial. Because I cannot place confidence in the death sentence imposed under such circumstances, I must dissent.

I.

This Court has previously recognized that it must exercise particular vigilance in reviewing prosecutorial misconduct claims in capital cases, dismayed as it was “by the frequency of prosecutor’s comments that lay ‘beyond the bounds of propriety.’ ” Papasavvas, supra, 163 N.J. at 622 , 751 A.2d 40 (citation omitted). Moreover, this Court has expressed a willingness to find prejudice resulting from prosecutorial misconduct in a capital case more readily than in other criminal matters “[bjecause death is a uniquely harsh sanction.” State v. Ramseur, 106 N.J. 123, 324 , 524 A.2d 188 (1987).

To be sure, prosecutors have a special duty to seek justice. See, e.g., State v. Reddish, 181 N.J. 553, 641 , 859 A.2d 1173 (2004) (noting that “prosecutors are charged not simply with the task of securing victory for the State but, more fundamentally, with seeing that justice is served”). “Prosecutors may fight hard, but they must also fight fair.” State v. Pennington, 119 N.J. 547, 577 , 575 A.2d 816 (1990), overruled on other grounds by State v. Brunson, 132 N.J. 377 , 625 A.2d 1085 (1993), and superseded by *570 statute, N.J.S.A. 2C:ll-3i, as recognized in State v. Cruz, 163 N.J. 403, 412 , 749 A.2d 832 (2000).

In my view, the prosecutor overstepped the bounds of fairness on several occasions, beginning with the invocation of the authority of the State in the opening statement and later in easting unjustified aspersions on defense counsel and witnesses during the trial.

A.

Where a prosecutor has invoked the authority of the State, courts have not hesitated to find a deprivation of a defendant’s right to a fair sentencing hearing. The United States Court of Appeals for the Eleventh Circuit explained that “[sjueh arguments are objectionable because their effect is to assure the jurors that someone with greater experience has already made the decision that the law imposes on them.” Tucker v. Zant, 724 F.2d 882, 889 (11th Cir.1984), vacated and remanded sub nom. Tucker v. Kemp, 474 U.S. 1001 , 106 S.Ct. 517 , 88 L.Ed.2d 452 (1985).

In his opening statement, the prosecutor clearly invoked the authority of the State when he told the jury, “[tjhe State does not seek the death penalty on a routine basis. It is not something that we do lightly. The State seeks the death penalty when the State believes the facts call for it.” In response to defense counsel’s motion for a mistrial, which was denied, the trial court issued the following instruction to the jury:

If during the course of either opening any counsel referred to their personal opinion or personal belief, that is not a proper aspect of presentation and counsel’s belief or counsel’s opinion is not evidence and is indeed not proper argument either. So to the extent there was any such argument or presentation made, it should be disregarded by you and you should allow that to play no role in any determination which you make.

That instruction fell short of curing any prejudice stemming from the prosecutor’s statements. Indeed, the instruction was conditional, and thus diluted. By referring to the expression of a personal opinion, the instruction did not directly address the true problem of the prosecutor’s invocation of the experience of the *571 State. As this Court explained in a similar context, “only a clear and precise instruction referring specifically to the improprieties and disapproving them could possibly have eliminated the harm already done to the defendant’s rights.” State v. Farrell, 61 N.J. 99, 107 , 293 A.2d 176 (1972). The failure to give a clear and precise instruction to disregard the prosecutor’s references to the State not seeking the death penalty on a routine basis, and the like, was error.

B.

Additionally, the prosecutor overstepped the bounds of propriety on several other occasions throughout the penalty phase trial. It is well-established that prosecutors may not cast “unjustified aspersions on the defense or defense counsel.” State v. Nelson, 173 N.J. 417, 461 , 803 A.2d 1 (2002) (citing State v. Smith, 167 N.J. 158, 177 , 770 A.2d 255 (2001)). Here, when the prosecutor implied that defense counsel was not forthcoming in providing discovery materials and asking questions of defense experts that went beyond the proper scope of cross-examination, the prosecutor violated that fundamental maxim.

Further, the prosecutor’s unwarranted comments and questions that impugned the integrity of various defense witnesses were not appropriate. This Court in Nelson set aside the defendant’s death sentence because of the improper comments by the prosecutor, which included implications that defense witnesses were not credible because they were part of the “defense team.” Id. at 461-63 , 803 A.2d 1 . Here, the prosecutor’s comments similarly gave the impression that defense experts were biased, if not worse. The prosecutor asked a defense medical expert, “[y]ou were hired for court purposes. And once you are done here, your work is done with Mr. Wakefield, correct?” He then asked that expert, “[a]s a physician, your job and your oath requires you to help and treat patients, correct?” That series of questions was meant to imply that the doctor was merely a mercenary who violated his oath by evaluating defendant strictly for the purposes of trial.

*572 When the defense social worker who was presenting defendant’s social history testified on cross-examination, she told the prosecutor, in response to his comment that a specific quote did not appear in a report, “I don’t feel comfortable relying on what you’re saying.” The prosecutor responded, “[w]ell, the feeling is mutual, ma’am.” Such a personal attack on the witness’s veracity was completely improper and undermined the witness’s testimony. Because the social worker was a critical witness for defendant, the prosecutor’s comment served to violate defendant’s right to a fair trial.

Along with the instances discussed above, the prosecutor engaged in other improper behavior throughout the trial, such as, in his summation, likening defendant to a wolf, a tactic that this Court has criticized. See State v. Williams, 113 N.J. 393, 455-56 , 550 A.2d 1172 (1988).

C.

Under the rules of professional responsibility, the prosecutor must “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extra judicial statement that the prosecutor would be prohibited from making.” RPC 3.8(f).

At trial, prospective juror, Paul Trinkle, who was selected to serve during the initial voir dire process, was later excused when he revealed after a three month adjournment before the trial began that he and a secretary in the prosecutor’s office had talked about a witness in the case. When questioned by the trial court, Trinkle stated that what the secretary told him about the witness could impact his ability to fairly judge that witness’s testimony.

Defense counsel wanted Trinkle as a juror on the panel, but the conduct of the prosecutor’s employee deprived counsel of the opportunity to do so. That deprivation, caused by the actions of the prosecutor’s secretary, can be attributed to the prosecutor under basic agency principles. See State v. Baker, 310 N.J.Super. *573 128, 133 , 708 A.2d 429 (App.Div.1998) (attributing knowledge to State where head of prosecutor’s office, rather than prosecutor on case, invaded secrecy of jury deliberation process). In failing to ensure that its employees did not taint the jury pool, the State denied defendant a juror who might have provided the single vote that could have made the difference between life and death — for in a capital case, if even one juror finds the aggravating factors do not outweigh the mitigating ones, death cannot be imposed.

D.

As this Court has stated, “[i]n the highly emotional setting of the penalty phase of a capital murder case, we cannot conclude that multiple violations of prevailing standards of prosecutorial conduct had no impact on th[e] jury’s deliberations.” State v. Rose, 112 N.J. 454, 523-24 , 548 A.2d 1058 (1988). In my view, the cumulative effect of the prosecutor’s errors committed throughout defendant’s penalty phase proceeding deprived him of his constitutional right to a fair trial. Therefore, I cannot support the majority’s decision to affirm defendant’s conviction and death sentence.

II.

The trial court further denied defendant’s right to a fair trial by failing to heed this Court’s instruction that, in the penalty phase of a capital proceeding, “doubts must be resolved in favor of admission when evidence of a mitigating factor is offered by the defendant.” State v. Davis, 96 N.J. 611, 620 , 477 A.2d 308 (1984) (footnote omitted), superseded by statute, N.J.S.A. 2C:11-3i, as recognized in Cruz, supra, 163 N.J. at 412, 749 A.2d 832 .

Defendant sought to introduce two photographs — one of his mother and one of the man who raised him and may be his father — which had been sent to him while he was in jail awaiting his capital murder trial. In the photograph of his mother, she is smoking something and written on the back is the following: “Fla/Got/Smokin to/ do. It ain’t/ nothing nice / Love/ mommy.” *574 The other photograph depicts the man smoking what appears to be a cigar and written on it is: “The Real Puff Daddy/ Pla Style.” The trial court refused to admit the pictures, ruling that they were ambiguous as to the substance being smoked, prejudicial, largely irrelevant as post-homicidal, and cumulative.

In seeking to offer the pictures, defendant wished to demonstrate his parents’ indifference to his situation. In my view, the photographs could have supported three of defendant’s proffered mitigating factors: (1) that he was raised in an environment where domestic violence, criminal activity, and substance abuse were pervasive (found by seven jurors); (2) that he was raised in a home without structure, boundaries, or positive role models (found by six jurors); and (3) that he suffered physical and emotional neglect from his family (found by three jurors).

In Lockett v. Ohio, the United States Supreme Court held that a sentencer may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964-65 , 57 L.Ed.2d 973, 990 (1978). The Legislature codified that proposition under N.J.S.A. 2C:ll-3e(2)(b), which allows a defendant at a capital penalty phase trial to “offer, without regard for the rules governing the admission of evidence at criminal trials, rehable evidence relevant to any of the mitigating factors.”

Given the guidance from both the United States Supreme Court and this Court, as well as the statutory framework, the trial court should have admitted the photographs into evidence. This is especially so because the prosecutor contested the fact that the photographs would have helped to prove that defendant had a horrendous upbringing. When discussing the evidence defendant offered regarding his mother, the prosecutor argued that “things were exaggerated.” Although the jurors might have disbelieved the social worker who presented defendant’s background, it would have been more difficult for them to ignore physical evidence such as the photographs. Thus, had the photographs been offered, it is *575 possible that more than three jurors might have found that defendant suffered neglect from his family and more than six jurors might have found that he was raised in a home without positive role models. In the context of a capital penalty phase trial, where a necessarily subtle and subjective weighing process might lead one juror to vote for life, thus removing the death penalty as an appropriate sentence, I conclude that such an error is substantial.

This Court has “acknowledged that in the sentencing phase of a capital proceeding — a life or death contest — a defendant is entitled to the use of all reliable, helpful information.” Davis, supra, 96 N.J. at 619 , 477 A.2d 308 . Because the trial court did not adhere to that standard, defendant’s case was unfairly hampered. It is impossible for me to conclude with confidence that not one juror would have weighed the aggravating and mitigating factors differently and voted to spare defendant’s life if the jury had been presented with photographs showing such blatant and disturbing indifference on the part of defendant’s parents to the fate of their son.

III.

One other factor might not, independently, warrant granting defendant a new penalty phase trial, but when considered in combination with the other errors discussed above, I believe contributed to the denial of his right to a fair trial.

The trial court’s instruction to the jury on reasonable doubt failed to follow the instruction set forth by this Court in State v. Medina, 147 N.J. 43 , 685 A.2d 1242 (1996), cert. denied, 520 U.S. 1190 , 117 S.Ct. 1476 , 137 L.Ed.2d 688 (1997). In particular, the trial court omitted the last two sentences from the Medina charge:

If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of defendant’s guilt, you must give the defendant the benefit of the doubt and find him not guilty.

[ Id. at 61, 685 A.2d 1242 .]

*576 Because a capital penalty phase jury must find that aggravating factors outweigh mitigating factors beyond a reasonable doubt, the omitted language could have been adapted to this setting, with the last sentence reading: “If, on the other hand, you are not firmly convinced that the aggravating factors outweigh the mitigating factors, you must give the defendant the benefit of the doubt and return a life sentence.”

While this error might, at first blush, seem inconsequential, the omission of the “benefit of the doubt” • language represented a significant harm to defendant as the jury was not reminded of the essential presumption for life. The simple, straightforward quality of the “benefit of the doubt” language cannot be discounted, for a layperson on the jury can much better understand the nature of the balancing required when presented with such language. Without it, the State’s burden was unfairly lessened.

IV.

Defendant contends that he was further denied his right to a fair trial because the trial court did not charge the jury that he was entitled to a presumption of life. Although I agree with the majority that the court’s failure to issue such an instruction sua sponte was not error, I part company with the majority when it states that a presumption of life charge is never required.

In Rose, supra, we held that a defendant is not entitled to a presumption against the death penalty charge. 112 N.J. at 545, 548 A.2d 1058 . However, at the time Rose was decided, aggravating factors were not treated as the functional equivalent of elements of a crime. Because they now are, State v. Fortin, 178 N.J. 540, 646 , 843 A.2d 974 (2004), the legal landscape has changed sufficiently that the presumption of life charge must be reconsidered.

“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 , 96 S.Ct. 1691, 1692 , 48 L.Ed.2d 126, 130 (1976). The presumption *577 operates as a safeguard against the dilution of the State’s burden to prove all elements of a crime beyond a reasonable doubt. Taylor v. Kentucky, 486 U.S. 478 , 485-86, 98 S.Ct. 1930, 1935 , 56 L.Ed.2d 468, 475 (1978). Thus, the presumption is inextricably linked to the State’s burden to prove the elements.

Because, after Fortin , the aggravating factors necessary to make a defendant eligible for the death penalty are treated like elements of a crime and must therefore be proven beyond a reasonable doubt, I conclude that a presumption of life instruction should be given.

V.

In sum, defendant received a death sentence based on a proceeding that was not fair. The majority is convinced that the jury would have returned a verdict of death even if none of those errors occurred. I am not. Because I cannot place such confidence in the outcome of an unfair proceeding, I would vacate defendant’s death sentence and remand for imposition of a sentence of life imprisonment.

For affirmance — Justices LaVECCHIA, ZAZZALI, ALBIN and RIVERA-SOTO — 4.

For reversal — Justices LONG and WALLACE — 2.