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This case can also be found at 173 N.J. 343, 801 A.2d 1142.
Argued January 29, 2002 Decided July 30, 2002
PORITZ, C.J., writing for a majority of the Court.
Robert Marshall was convicted for the murder of his wife, Maria Marshall, as an accomplice who arranged for the murder-by-hire. After a separate sentencing proceeding, Marshall was sentenced to death. This appeal is from the trial courts dismissal of Marshalls second petition for post-conviction relief (PCR).
Marshall, a Toms River insurance agent, began an extramarital affair with Sarann
Kraushaar, a married woman, in June 1983. As early as December 1983, Marshall
mentioned to Kraushaar the idea of killing his wife. In 1984, after making
inquiries about hiring an investigator, Marshall was put in touch with Billy Wayne
McKinnon, a former sheriffs officer from Louisiana. Marshall agreed to pay McKinnon $5,000
to meet him in Atlantic City.
McKinnon came to Atlantic City in June 1984 and Marshall offered to pay
him $65,000 to kill his wife the $5,000 he had already paid, $10,000
up front, and $50,000 from the expected insurance proceeds on his wifes life.
Marshall gave McKinnon an additional $7,000 and a picture of his wife, and
told McKinnon to kill his wife that evening, when Marshall would be present.
Marshall believed he would not be considered a suspect because he was an
outstanding citizen with influence in the community.
McKinnon did not carry out the murder at that time. Marshall communicated with
him on numerous occasions and sent him additional money. McKinnon returned to Atlantic
City in July 1984 and met with Marshall, who proposed a second plan
for the killing to take place that evening. However, McKinnon did not complete
the job that evening, either. Marshall offered McKinnon an extra $15,000 if he
would return to New Jersey a third time to do the job. McKinnon
agreed, and met Marshall in September 1984. Together they selected a spot on
the Garden State Parkway to carry out the murder and made final plans
for the murder. The plan was to make the murder look like a
Marshall took his wife to a casino under the pretext of an evening
of dining and gambling. Marshall met McKinnon outside the casino and told him
that he and Maria would be leaving the casino about midnight. As previously
arranged with McKinnon, Marshall pulled into a picnic area on the Parkway while
his wife was sleeping. Marshall got out of the car under the ruse
of needing to repair a flat tire. Marshall was hit on the head
as part of the simulated robbery. Maria was shot in the back twice
and died immediately.
When police arrived on the scene, Marshall continued to make the murder look
like a robbery. The State argued at the trial that Marshall even staged
a suicide attempt. Marshall protested his innocence then and continues to do so
now. Telephone records traced Marshall to McKinnon, who turned States evidence. In exchange
for a plea to conspiracy to commit murder, McKinnon implicated Marshall and identified
a Louisiana man, Larry Thompson, as the triggerman.
Investigation disclosed that during his planning, Marshall had been increasing the insurance policies
on his wifes life. At the time of her death, Maria Marshalls life
was insured for about $1,400,000. Marshall was paying for his wifes premiums while
neglecting his own. The State offered proof that Marshall could have been motivated
to kill by rising debts incurred by his business. While amassing the large
insurance policies on his wife, Marshall also continued his relationship with Sarann Kraushaar,
with whom Marshall intended to live after the murder.
A jury acquitted Thompson of the murder but accepted McKinnons version of Marshalls
role and found Marshall guilty of murder-by-hire. The only aggravating factor submitted to
and found by the jury was that Marshall had hired another to commit
murder. The two mitigating factors submitted to and found by the jury were
that Marshall had no history of criminal activity and the catch-all mitigating factor.
Neither party presented additional evidence at the sentencing phase, and therefore each side
argued its case in closing arguments. The jury unanimously found beyond a reasonable
doubt that the aggravating factor outweighed the mitigating factors, and Marshall was sentenced
This Court upheld Marshalls conviction and death sentence on direct review in Marshall
I, and affirmed the proportionality of his death sentence in Marshall II. Marshall
filed his first PCR petition in April 1991. The trial court issued an
order denying the petition in February 1995. This Court affirmed the denial in
On February 9, 2001, Marshall filed a second PCR petition. Marshalls claim is
that the trial courts jury instructions in the penalty trial precluded the jury
from rendering a non-unanimous verdict on the imposition of the death sentence. The
State filed a motion to dismiss, arguing that the petition was time barred
by Rule 3:22-12 (PCR to be filed within five years of sentence) and
procedurally barred by Rule 3:22-5 (claim previously adjudicated on the merits). The trial
court dismissed the PCR petition as procedurally barred by Rule 3:22-5. The trial
court observed that the petition also was filed beyond the time limit imposed
by Rule 3:22-12, but did not rely on the time bar when it
dismissed the petition.
HELD: The post-conviction relief petition was properly dismissed because it is both procedurally
barred and time barred under the New Jersey Court Rules.
1. Under Rule 3:22-5, a petitioner cannot assert as a basis for relief
in a PCR petition a claim previously adjudicated on the merits. For the
bar to apply, the issue raised must be identical or substantially equivalent to
an issue raised previously. Marshalls first PCR petition included over 500 claims of
error. One of these, F.18, argued that Marshall was denied his right to
a fair and reliable death penalty trial on the basis that the trial
courts penalty phase instructions inadequately explained that a non-unanimous verdict was acceptable. The
Court finds that F.18 presented the same argument that Marshall presents here. This
Court adjudicated claim F.18 in Marshall III. In that opinion, the Court exhaustively
reviewed many of the 500 grounds for reversal raised by Marshall and also
summarily rejected without discussion many others that lacked merit. F.18 was one of
the latter claims. (Pp. 9-14)
2. The Courts finding that the procedural bar of Rule 3:22-5 precludes consideration
of Marshalls petition is dispositive. Nevertheless, the Court addresses the impact of the
time constraints imposed by Rule 3:22-12 to provide guidance for future cases. Rule
3:22-12 states that no petition for PCR relief other than one to correct
an illegal sentence shall be filed more than five years after rendition of
the judgment or sentence unless it alleges facts showing that the delay was
due to excusable neglect. Marshalls second PCR petition was filed well beyond the
five-year time limit. His explanation for the late filing is that his previous
counsel failed to raise the issue in the first PCR petition. This does
not justify relief from the time bar because Marshalls previous counsel filed an
extensive PCR petition that included, among many other claims, the very issue Marshall
now raises regarding the trial courts unanimity charge. (Pp. 14-17)
The judgment of the Law Division is AFFIRMED.
JUSTICE LONG has filed a separate, dissenting opinion, expressing her view that the
majority is mistaken in its application of the procedural bar of Rule 3:22-5;
that where a defendants life is at issue, the time bar of Rule
3:22-5 should be relaxed; and that based on the infirmity in the jury
instruction regarding unanimity, Marshalls PCR petition should have been granted and the matter
remanded for a new penalty-phase trial.
SUPREME COURT OF NEW JERSEY
A- 32 September Term 2001
Argued January 29, 2002 -- Decided July 30, 2002
On appeal from the Superior Court, Law Division, Atlantic County.
Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Peter
A. Garcia, Acting Public Defender, attorney).
Robert E. Bonpietro, Deputy Attorney General, argued the cause for respondent (Peter C.
Harvey, Acting Attorney General, attorney).
The opinion of the Court was delivered by
Defendant was charged in Ocean County Indictment 26-1-85 with the crimes of conspiracy to commit murder, in violation of N.J.S.A. 2C:5-2, and capital murder as an accomplice who procured the commission of the murder by payment or promise of payment, in violation of N.J.S.A. 2C:11-3a(1) or (2). Following a venue change, trial was held in Atlantic County from January 14, 1986 through March 5, 1986. On March 5, 1986, defendant was convicted on both counts.
Our first Marshall opinion contains a detailed account of the evidence adduced at defendants trial. See State v. Marshall, 123 N.J. 1 (1991) (Marshall I), cert. denied, 507 U.S 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993). We reproduce here a summary of the facts the jury could have found, excerpted from State v. Marshall, 130 N.J 109 (1992) (Marshall II), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993), and also reproduced in Marshall III, supra.
Defendant, a Toms River insurance agent, began an extramarital affair with Sarann Kraushaar,
a married woman, in June 1983. As early as December 1983, defendant mentioned
to Kraushaar the idea of killing his wife, Maria. In May 1984, defendant
met Robert Cumber of Louisiana and questioned him about hiring an investigator. Defendant
later telephoned Cumber, who referred defendant to Billy Wayne McKinnon, a former sheriffs
officer from Louisiana. Defendant agreed to pay McKinnon $5,000 to meet him in
Atlantic City, New Jersey.
Defendant met McKinnon at Harrahs Casino in Atlantic City on June 18, 1984,
and offered to pay him $65,000 to kill his wife. In addition to
the $5,000 that McKinnon had already received, defendant agreed to pay him $10,000
up front and $50,000 from the expected insurance proceeds on his wifes life.
At that meeting defendant paid McKinnon $7,000 and gave him a picture of
his wife. Defendant told McKinnon to kill her that evening, when defendant would
be present. In preparation for the killing, defendant and McKinnon discussed various ways
to kill Maria. Defendant believed that he would not be considered a suspect
because he was considered an outstanding citizen with influence in the community.
Defendant took his wife to Harrahs Casino in Atlantic City on the night
of September 6, 1984, under the pretext of an evening of dining and
gambling. He met McKinnon outside Harrahs at approximately 9:30 p.m. and told him
that he and Maria would be leaving the casino at about midnight. Defendant
also asked McKinnon for the return of the photographs of Maria and of
their home that he had given him in June.
Investigation disclosed that during his planning, defendant had been increasing the insurance policies
on his wifes life. At the time of her death, Maria Marshalls life
was insured for about $1,400,000. Defendant had been paying his wifes premiums while
neglecting his own. Defendant hastened to complete an application for a policy for
a home mortgage before the murder. On the last day of her life,
Maria underwent a physical examination for that policy. The State offered proof that
defendant could have been motivated to kill by rising debts incurred in his
business, including a $128,000 home-equity loan and a short-term bank debt in excess
of $40,000. While amassing those large insurance policies, defendant also continued his relationship
with Sarann Kraushaar, with whom he had intended to live after the murder.
A jury acquitted Thompson of the murder but accepted McKinnons version of defendants
role and found him guilty of conspiracy to commit his wifes murder and
of murder-by-hire. The only aggravating factor submitted to and found by the jury
was that defendant had hired another to commit murder. N.J.S.A. 2C:11-3c(4)(e). The two
mitigating factors submitted to and found by the jury were that defendant had
no history of criminal activity, [N.J.S.A. 2C:11-3]c(5)(f), and the catch-all mitigating factor, [N.J.S.A.
2C:11-3]c(5)(h). At the time of the offense defendant was forty-four years of age,
and had been involved in charitable and community activities. The jury unanimously found
beyond a reasonable doubt that the aggravating factor outweighed the mitigating factors. The
trial court sentenced defendant to death.
[Marshall III, supra, 148 N.J. at 137-38; Marshall II, supra, 130 N.J. at
The trial court, on motion by the State, dismissed defendants second PCR petition as procedurally barred under Rule 3:22-5. The trial court observed that the petition also was filed beyond the time limit imposed by Rule 3:22-12, but did not rely upon the time bar when it dismissed the petition. Before us, defendant argues that the procedural bar was applied inappropriately to his second PCR petition and that the time bar should be waived. The State contends that both the time bar and the procedural bar preclude consideration of defendants second PCR petition.
The New Jersey Court Rules establish the framework for the filing and disposition of PCR petitions. The trial court relied on Rule 3:22-5 to dismiss defendants second PCR petition. Under that rule, a petitioner cannot assert as a basis for relief a claim previously adjudicated on the merits:
A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.
The trial court found that defendants claim in his second PCR petition was the same as a claim raised in his first PCR petition, namely, claim F.18. The court determined that this Court adjudicated F.18 in Marshall III, which denied defendants first PCR petition and upheld his death sentence. 148 N.J. at 257. Because F.18 so lacked merit that it failed to warrant discussion in our Marshall III opinion, the court concluded that we had previously considered the challenged instruction and dismissed defendants PCR petition.
We addressed the standard for application of Rule 3:22-5 in Marshall III:
Preclusion of consideration of an argument presented in post-conviction relief proceedings should be effected only if the issue raised is identical or substantially equivalent to that adjudicated previously on direct appeal.
In order to decide whether Rule 3:22-5 bars consideration of defendants second PCR petition, we must determine whether the instant claim and claim F.18 from his first petition are either identical or substantially equivalent. If the claims are substantially the same, the petition is procedurally barred; if not, the claim of error should be adjudicated when there is no other reason to bar it.
Defendants first PCR petition argued over 500 claims of error. Point F.18 was one of several alleging errors in the trial courts charge to the jury at the sentencing phase:
The defendant was denied his right to fundamental fairness, due process and his
right to a fair and reliable 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 courts penalty phase instructions inadequately
explained that a non-unanimous verdict was acceptable.
Our finding that the procedural bar of Rule 3:22-5 precludes consideration of defendants petition is dispositive. Nevertheless, our supervisory function in respect of death penalty cases impels us to provide guidance for those future cases in which the procedural bar does not apply. We will therefore address the impact of the time constraints imposed by Rule 3:22-12 on defendants second PCR petition. The rule provides:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendants excusable neglect.
Defendant filed his second PCR petition well beyond the five-year time limit of Rule 3:22-12. Although the parties disagree about the extent of defendants tardiness, no one disputes that his second PCR petition was late. At issue here is whether the time bar should apply to defendants second PCR petition, thus precluding consideration of the merits of his claim.
The importance of striking a balance between the competing interests of finality of judgments and fundamental fairness has been repeatedly emphasized by this Court. State v. Preciose, 129 N.J. 451, 474-76 (1992); State v. Mitchell, 126 N.J. 565, 578-79 (1992); see also R. 1:1-2 (stating that a procedural rule may be relaxed or dispensed with by the court . . . if adherence to it would result in an injustice). In searching for that balance, we have stressed that procedural rules "are not an end unto themselves, but a means of serving the ends of justice." Preciose, supra, 129 N.J. at 474 (quoting Viviano v. CBS, 101 N.J. 538, 550-51 (1986)). Rule 3:22-12 is designed to serve the ends of justice. As we observed in Mitchell, good reasons exist to abide by its strictures:
As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving justice years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. Those difficulties have not gone unnoticed by our courts.
. . .
Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. The Rule therefore strongly encourages those believing they have grounds for post- conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice.
In the absence of facts demonstrating excusable neglect to justify a delay, PCR petitions must be filed within five years of the judgment or sentence. R. 3:22-12. The only broad exception to the Rule exempts petitions that challenge the legality of a sentence from any time limitation. Mitchell, supra, 126 N.J. 576; R. 3:22-12. See footnote 2
Defendant does not present a case of excusable neglect. His explanation for the tardiness of his second PCR petition --that his previous counsel failed to raise the issue in the first PCR petition - is not correct, and therefore cannot justify relief from the time bar. As discussed above, defendants previous counsel filed an extensive PCR petition that included, among many other claims, claims of error in respect of the jury charge at the sentencing phase. More specifically, counsel raised the very issue defendant now raises in relation to the trial courts unanimity charge in defendants PCR petition. There simply is no basis for a claim now of excusable neglect.
Defendants claim of error in the penalty-phase jury charge is barred because it was considered and rejected in his first PCR petition and because it is now time barred. For purposes of completeness, and to further explain the law in this area, we will briefly address the merits of defendants claim.
We begin with the principle that a reviewing court must evaluate any alleged error in a portion of a jury charge in the context of the entire charge. State v. Simon, 161 N.J. 416, 477 (1999); State v. Harris, 156 N.J. 122, 195 (1998). Also, a reviewing court must assume that the jury followed the instructions delivered by the trial court. State v. Manley, 54 N.J. 259, 271 (1969). In order to evaluate defendants claim, then, we reproduce here in its entirety the trial courts instructions to the jury at defendants sentencing-phase trial.
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.
I fully understand the significance of the difficulty with respect to the task that you will be called upon to undertake. Nevertheless, I am confident that you will be equal to your oath.
The sentence will be determined by your findings concerning specific aggravating and mitigating factors which are listed in our law. The defendant must be sentenced to death if you are satisfied beyond a reasonable doubt that an aggravating factor exists and that such aggravating factor, as you find to exist beyond a reasonable doubt, outweighs all mitigating factors.
I have previously defined for you the term reasonable doubt, and Ill just
instruct you again briefly with respect to that concept.
A reasonable doubt is not a mere possible or imaginary doubt, because as
you may well know, everything relating to human affairs or depending upon oral
evidence is open to some possible or imaginary doubt. A reasonable doubt is
an honest and reasonable uncertainty as to the existence of a fact which
is present in your mind after you have given full and impartial consideration
to all of the evidence. It may arise from the evidence itself or
from a lack of evidence.
For the purpose of this case, you may consider only what -- as
to aggravating factors, whether the following aggravating factor has been proven beyond a
reasonable doubt; that is, that the defendant procured the commission of the offense
by payment or promise of payment of anything of value.
The evidence at the trial, which is relevant to the aggravating and mitigating
factors, shall be considered by you without the necessity of re-introducing that evidence
at this proceeding.
The State has the burden of convincing you beyond a reasonable doubt that
the aggravating factor has been proven. If youre not so convinced, the defendant
will not receive the death penalty, but will be sentenced by the Court
to a term of imprisonment, which I will mention to you shortly.
With respect to mitigating factors, you do not have to be convinced of
their existence. That is to say, the defendant doesnt have the burden of
establishing the mitigating factors. If any evidence has been presented with respect to
mitigating factors, then you are bound by the law to consider it and
weigh it against any aggravating factor that you have found present.
Of course, with respect to both aggravating and mitigating factors, you are the
sole judges of the truth of the evidence presented. Should you find that
this aggravating factor alleged has been proven and that evidence of at least
one mitigating factor is present, you must then weigh the aggravating and the
mitigating factors, and the defendant will be sentenced to death only if you
are convinced beyond a reasonable doubt that the aggravating exists and outweighs the
mitigating factors, and all of the mitigating factors, beyond a reasonable doubt.
If you reach the point in your deliberations where youre weighing aggravating and
mitigating factors, its important for you to understand that this is not a
mechanical process. It doesnt necessarily or simply depend upon the number of factors
on each side. It does depend on your careful and considered judgment as
to whether or not the aggravating factor is of such gravity, seriousness, or
weight, that, beyond a reasonable doubt, it outweighs all of the evidence as
to mitigating factors.
I dont want to place any greater burden upon you than exists by
virtue of the law. You have a difficult task. However, you accepted this
responsibility as public citizens pursuant to the oath that was administered to you.
Theres nothing peculiarly different than the way a jury is to consider proof
in any criminal case or any criminal proceeding from that in which all
reasonable persons treat any questions, depending upon evidence presented to them.
Youre expected to use your good sense, consider the evidence for only the
purpose for which it has been admitted, and give it a fair and
reasonable construction in the light of your common knowledge of the natural tendencies
and inclinations of human beings.
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 case without
any bias or prejudice.
In order to assist you during your deliberations, Ive prepared for you a
verdict form that you can complete. I think it is self-explanatory. There are
three places on the form for the foreperson to sign, and that will
be you, please, if you will sign it ultimately at the appropriate place,
Im going to ask each of you one by one if that is
the way you voted, just to be sure that the verdict is unanimous,
as required by law.
The State contends that because this statement was made after the jury returned
its verdict, it has no bearing on defendants claim that the jury instructions
improperly emphasized the need for a unanimous verdict. In any event, because a
verdict imposing the death penalty does have to be unanimous, the statement was
There is no question but that clear and correct jury instructions are essential for a fair trial because the jury charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations. State v. Koskovich, 168 N.J. 448, 507 (2001) (internal citations omitted). As an indication of the paramount importance of accurate jury instructions, we have held that erroneous instructions on material issues are presumed to be reversible error. State v. Martin, 119 N.J. 2, 15 (1990); State v. Grunow, 102 N.J. 133, 148 (1986). It is even more crucial that jury instructions in capital cases be proper, because juries in capital cases must decide whether the defendant will live or die. Koskovich, supra, 168 N.J. at 524.
The case law relied upon by defendant in his second PCR petition does not support his position. In Ramseur, we observed that the jury at a capital sentencing trial can return one of three possible verdicts: a unanimous verdict for a death sentence, a unanimous verdict for a life sentence, or a non-unanimous verdict, which would result in a sentence other than death. 106 N.J. at 311-12. Ramseur required that juries in capital cases be informed of, and free to exercise, their statutory option to return a final, non-unanimous verdict resulting in imprisonment if, after a reasonable period of deliberation, the jurors demonstrate an inability to agree unanimously. Id. at 312. Here, the trial court emphasized that a verdict imposing the death sentence must reflect the unanimous decision of the jury. That is a true statement of the law. The trial court also instructed the jury that a non-unanimous verdict would result in a sentence of imprisonment for a term of years or life. That statement informed the jury of the outcome if the defendant did not receive the sentence of death. It is also a true statement of the law.
In Hunt, we held that jury instructions in the penalty phase of a capital trial must not indicate, nor arise from, a desire to produce unanimity. 115 N.J. at 385. Here, the trial courts instruction -- that the jury must be unanimous in order to sentence defendant to death and that, in the event the jury members could not agree, the court would determine whether further deliberations were appropriate -- is in accord with Hunt. Rather than improperly indicating a desire to achieve unanimity, those instructions emphasized that a death sentence would issue only if the jury unanimously agreed to impose it, and that any other verdict would result in a prison sentence.
It would have been preferable in this case, for the trial court to have more precisely informed the jury that a non-unanimous verdict was acceptable and that unanimity referred only to a verdict to impose the death sentence. Our capital punishment jurisprudence has evolved substantially since defendants trial and trial courts today are more familiar with the preferred formulation of the charge in respect of a jurys options in the penalty phase. Nevertheless, we are fully satisfied that the charge in this penalty-phase trial, although not perfect, did not mislead the jury, and therefore, did not constitute error. The trial court appropriately instructed the jurors regarding their duties in rendering a sentence, informed them of the option of returning a non-unanimous verdict, and did not coerce them to return a unanimous verdict.
The judgment of the Law Division denying defendants petition for post-conviction relief is affirmed.
JUSTICES STEIN, COLEMAN, LaVECCHIA, and ZAZZALI join in CHIEF JUSTICE PORITZs opinion. JUSTICE LONG has filed a separate, dissenting opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A- 32 September Term 2001
STATE OF NEW JERSEY,
ROBERT O. MARSHALL,
LONG, J., dissenting.
When Marshalls first petition was denied, his appellate counsel reduced F.18 even further:
The trial courts penalty phase instructions inadequately explained that a non-unanimous verdict was
The drafter of Marshalls 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, Marshalls appellate brief put the argument this way:
The Jury Penalty-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 majoritys 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. Indeed, in State v. Ramseur, 106 N.J. 123, 312 (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 Marshalls first and second petitions. Yet, the Court holds that the argument advanced here is implicit in Marshalls 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 Marshalls present claim was, in fact, considered and rejected. At best, whether Marshalls 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.
Turning to the merits: Based on the infirmity in the jury instruction regarding unanimity, Marshalls 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 Marshalls 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: Your 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. A non-unanimous verdict is perfectly acceptable, and there is no preference for unanimity. State v. Hunt, 115 N.J. 330, 384-85 (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 (1996).
The trial court continued in equally problematic terms:
If, after careful, conscientious and thorough deliberations, youre 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.
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. 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 case 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 focus, but an incorrect spotlight on unanimity pervaded the charge.
The majoritys conclusion that the charge did not mislead the jury, ante at ____ (slip. op. at 27), 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:11-3f. 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:11-3f (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 (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.
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; State v. Bey, 112 N.J. 123, 179-80 (1988); Ramseur, supra, 106 N.J. 123; see also State v. Clausell, 121 N.J. 298, 346 (1990) (reversing on other grounds but instructing trial court to deliver proper instructions on remand). Robert Marshalls 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.
SUPREME COURT OF NEW JERSEY
NO. A-32 SEPTEMBER TERM 2001
STATE OF NEW JERSEY,
ROBERT O. MARSHALL,
DECIDED July 30, 2002
Footnote: 1 Defendant filed a federal habeas corpus petition in the United States District Court for the District of New Jersey on November 3, 1997. The District Court denied the petition and, also, denied a certificate of appealability. Marshall v. Hendricks, 103 F. Supp.2d 749 (D.N.J. 2000). The United States Court of Appeals for the Third Circuit reversed on the certificate of appealability. Defendants habeas corpus appeal is currently pending in the Third Circuit.
Footnote: 2 Defendant does not claim that he received an illegal sentence, nor could he make such a claim. The New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:104-9, does not define the term illegal sentence, but it does specify the penalty for each offense it enumerates. N.J.S.A. 2C:43-2; State v. Murray, 162 N.J. 240, 246 (2000). Under our Rules, a PCR petition is cognizable if it is based on the imposition of [a] sentence in excess of or otherwise not in accordance with the sentence authorized by law. R. 3:22-2(c); see Murray, supra, 162 N.J. at 246. Under our case law, the illegal sentence standard has been applied to only two types of sentences -- sentences that exceed the penalty authorized by statute for the specific offense and sentences not imposed in accordance with the law. Murray, supra, 162 N.J. at 246-47.
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