Opinion
DOCKET NO. A-1296-10T4
01-18-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN E. WRIGHT, Defendant-Appellant.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-08-00754. Louis Charles Shapiro argued the cause for appellant (Sprague & Sprague, attorneys; Mr. Shapiro, on the briefs). G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, David M. Galemba, Matthew M. Bingham, and Marianne V. Rogers, Assistant Prosecutors, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Waugh, and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-08-00754.
Louis Charles Shapiro argued the cause for appellant (Sprague & Sprague, attorneys; Mr. Shapiro, on the briefs).
G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, David M. Galemba, Matthew M. Bingham, and Marianne V. Rogers, Assistant Prosecutors, on the brief). PER CURIAM
On September 20, 2005, defendant Steven E. Wright shot and killed Carol Ann Bradford at the ShopRite in Vineland, where she was employed as a pharmacist. At trial, Wright unsuccessfully presented an insanity defense. N.J.S.A. 2C:4-1. The jury found him guilty of first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count two); and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count three). After the jury determined that Wright acted "with depravity of mind," he was sentenced to life in prison without possibility of parole, to be served in a maximum security prison, pursuant to N.J.S.A. 2C:11-3(b)(4)(c). He appeals both the conviction and the sentence. We affirm the conviction, but remand for resentencing consistent with this opinion.
I.
We discern the following facts and procedural history from the record on appeal.
A.
When Vineland Police Sergeant Christopher Landi arrived at the scene of the shooting, he saw Wright "casually pacing" in front of the ShopRite. As Landi approached the store, a bystander, Michael Tasker, pointed toward Wright. When Landi asked Wright "what happened," he replied, "I shot her." Landi then saw the victim's body on the floor inside the store. Landi placed Wright under arrest. He discovered a handwritten journal when he searched Wright incident to the arrest.
Vineland Detective Pedro Casiano observed two guns "neatly placed on the ground, side-by-side" adjacent to the body. After he advised Wright of his Miranda rights, Casiano asked Wright whether "he knew where he was and what was going on." Wright responded that "he was at the ShopRite in Vineland and that he had just shot Carol." He also told Casiano that the victim was a friend. In fact, the two had no relationship other than that of pharmacist and customer.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Casiano and Landi took Wright to the police station. While en route, Wright made several unsolicited statements. According to Casiano, Wright stated that "he had been planning this for a long time," and wanted to shoot the victim in the head so she would not suffer, but "once he started shooting, he just kept on shooting." Wright said he planned to kill himself as well, but did not do so because the "loud noise" of the gun scared him.
At the police station, Casiano again advised Wright of his Miranda rights, and had him initial and sign a card acknowledging that he had been informed of his rights and understood them. Wright told Casiano that he had purchased two .38 caliber handguns in Philadelphia because he believed it would be easier to purchase them in Pennsylvania than in New Jersey. Wright's description of the guns he purchased matched the guns found at the scene.
B.
Wright was indicted on August 2, 2006. In addition to the charges on which he was convicted, he was charged with one count of fourth-degree stalking, contrary to N.J.S.A. 2C:12-10(b) (count four). That count was subsequently dismissed by consent. At the time of the indictment, Wright was subject to the death penalty pursuant to N.J.S.A. 2C:11-3(c), but that penalty had been repealed by the time of trial. L. 2007, c. 204.
Wright moved unsuccessfully to dismiss the indictment on the grounds that the State's presentation to the grand jury was defective. He also moved to suppress evidence, including both his statements to the police and evidence seized in connection with four search warrants. In addition, he moved for a change of venue, or the empanelling of a foreign jury, due to pretrial publicity. The trial judge took testimony and denied those motions in June 2007.
Wright was tried before a jury over eleven days during June and July 2010. Tasker testified that he was in the ShopRite parking lot when he heard noises that he initially thought were "electrical popping." As Tasker went toward the noises, he heard "a number of shots." Tasker saw Wright shoot towards the ground, then realized he was shooting at someone. According to Tasker, Wright was no more than ten feet from the victim when he shot her. Tasker saw Wright "raise[] his arms" and "[pace in] a circle" after he shot the victim.
Mary Pat Young-Pokrovsky testified that she and her husband were in front of the ShopRite when she heard a loud bang that sounded like a gun. After a second shot, they ran to a safer location. Young-Pokrovsky heard a scream after the second and each subsequent shot, except for the last one. She recalled hearing at least nine shots. Young-Pokrovsky witnessed Wright pacing in the store lobby after the shooting, with his hands over his face.
Vineland Police Detective Raymond Cavagnaro testified that he and Detective Shane Harris interviewed Wright at the police station. Prior to the questioning, Detective Sergeant Matthew Finley informed them that Wright had previously been advised of his Miranda rights, which he had waived. When Harris asked Wright whether he had been advised of his Miranda rights, Wright indicated that "he had been read his Miranda Rights and was willing to speak."
Wright told the officers that the victim was a friend and that he shot her. When asked why he shot the victim, Wright responded that "he had somewhat of an obsession, that he had to do it, that it was controlling him and he had no choice." Wright told the officers that he had met the victim a year-and-a-half prior to the shooting, and that he spoke with her several times on the telephone while she was at work. He last spoke to her five or six weeks prior to the shooting.
When asked why he went to the store on the evening of the shooting, Wright responded that he would "rather not say." Cavagnaro testified that "[s]everal times during the course of the interview [Wright] mumbled that he had shot [the victim], that he [had] no choice, that he had an obsession . . . ." Nevertheless, according to Cavagnaro, Wright was "calm and polite," "cooperative," "cordial," and responsive. He described Wright as "absolutely" understanding the officers' questions.
Wright also told the officers that he did not speak with the victim at the scene, but that she screamed when he shot her. Wright asked whether the victim had been shot in the head, explaining that he did not want her to suffer and had intended to shoot her in the head. He told them that he fired all of the bullets in the five-shot revolver, but did not think he fired all of the bullets in the six-shot revolver.
In response to a question about why he shot the victim, Wright said his notes, which he had been keeping for approximately five months, would explain everything. He told the officers that he "had somewhat of an obsession going on for about a year and a half." He had seen the victim between fifteen and twenty times.
The officers paused the interrogation and attempted to contact a member of Wright's family, but were unsuccessful. They then asked Wright if he would provide a written or taped statement, but he declined to do so because he "didn't want his family to be mad."
Wright asked if the shooting had been recorded by the store's video surveillance system, explaining that he had wanted it to be "because he was afraid he would chicken out." Shortly thereafter, Wright told the officers that he had been diagnosed as obsessive-compulsive.
Cavagnaro testified at trial that he again asked Wright to provide a taped or written statement, and "at that point he said he would, but he wanted to speak to an attorney first." Defense counsel objected and moved for a mistrial. The judge denied the application, but gave a curative instruction in which he told the jury to disregard the testimony about Wright's invocation of his right to consult an attorney.
Harris testified that, after the interrogation, he and another officer transported Wright to the county jail. Although Harris did not ask Wright any questions during the drive, he heard Wright make statements to himself, such as "I hope she didn't suffer"; "I hope she died at the scene and not at the hospital"; "I doubt if she knows who shot her because I shot her in the back first"; and "I wanted her dead." Harris described Wright as calm, but said he was mumbling.
In the presence of the jury, Landi read excerpts from Wright's journal, which contained a timeline of the events leading up to the shooting. Wright wrote that he rented an apartment in Philadelphia so he could obtain a Pennsylvania driver's license because it was easier to purchase a gun in Pennsylvania than in New Jersey. Wright purchased furniture for the apartment "to make it look like someone lived there, in case anyone checked the room." At first, he had difficulty receiving mail at the apartment and he failed his eye examination, both of which delayed the issuance of his Pennsylvania driver's license. Wright wrote that after he obtained the license, he used it to purchase "the two guns."
According to his journal, Wright believed that he "had plenty of personal problems" with the victim, so he planned to shoot her and himself. Wright explained that he planned to shoot himself "so [he would not] have to go to jail for life."
Wright also wrote that the victim was "no innocent victim," and that "[o]utside of the pharmacy, she was the opposite of the goody-goody she presented to be." He perceived the victim to be "deeply disturbed," "a grave risk to our security," and believed she had "a very violent and threatening temper." Wright believed the victim's family should pay for some of the expenses of his plan because they did not know "exactly how sick she was." He wrote that the victim would call him as many as thirty to forty times a day, "screaming and crying."
Wright also wrote that he sang with the victim at her home. He claimed that the victim "beg[ged]" that he shoot her fifty times, decapitate her, then donate her brain to a medical school. Wright wrote that he told her it would be "overkill" to shoot her fifty times and "that ten times would be enough." He wrote that he wanted to donate all of the victim's organs because she told him that is what she wanted.
Wright's journal included "song" lyrics, which he claimed the victim wrote, such as:
Carol Ann is going to the graveyard, graveyard, graveyard, yes, yes, yes. Hospital, hospital, no, no, no. Carol Ann has no more brains, no more brains, no more brains, yes, yes, yes. Get me to theand
graveyard on time but please, please bypass the hospital station.
Carol Ann, Steven Wright, Carol Ann, Steven Wright, Carol Ann, Steven Wright, murder suicide, murder suicide, murder suicide.
In August 2005, Wright wrote that the victim was "extremely evil" and "getting worse and worse every day, every hour." In his final entry, dated September 12, Wright claimed that the victim was a prostitute and drug dealer who had tried to extort $1000 per month from him. He wrote that "[s]he should have been shot years [ago]."
C. Chase Blanchard, M.D., an expert in forensic pathology, testified about the autopsy. Blanchard told the jury that the victim had been shot ten times. She detailed each gunshot wound and concluded that three of them were individually fatal, as were all ten taken together.
Joel E. Morgan, Ph.D., an expert in clinical neuropsychology, testified for the defense. Morgan's opinions were based on his three evaluation sessions with Wright and the results from tests administered to Wright. Based on the test results, Morgan opined that Wright was not "malingering" or exaggerating his impairment.
Morgan noted Wright's "long history of psychiatric illness. He had been in and out of treatment for most of his life, had been on psychiatric psychotropic medications." In the 1970s, he took Thorazine, which was once used to treat schizophrenia and psychosis. He also attended counseling sessions. At the time of his examinations, Wright was on Haldol for psychosis, and Elavil and Cymbalta for depression. After the homicide, Wright twice spent time in a psychiatric hospital.
Morgan reviewed Wright's journal entries, and stated that they were "indicative of his psychiatric problems." In one of the tests conducted by Morgan, Wright's responses were "bizarre" and "consistent with his psychotic, psychiatric history."
Morgan also observed that Wright "exhibited delusional thinking concerning the [victim]. He admitted to having had an in-depth fantasy life about her . . . exhibiting chronic delusional thinking of events that weren't true." Wright told Morgan that since starting medication, he recognized that these were delusions.
Morgan opined that the fact that Wright's "motor skills were impaired bilaterally" was "very frank evidence of neuropsychological abnormality." Morgan observed that Wright exhibited a "pattern of decreased mental skills" consistent with a person who suffers from "a chronic long-term, life-long psychiatric illness such as schizophrenia." Because Wright did not report having suffered from a stroke, tumor, or other neurological trauma, Morgan concluded that Wright's diminished mental skills "must . . . be based on his psychiatric, chronic state."
Neil Blumberg, M.D., an expert in psychiatry and forensic psychiatry, also testified for the defense. Blumberg had performed a forensic evaluation of Wright and prepared two reports. At the trial, he detailed Wright's family history of mental illness, as well as Wright's history of mental-health treatment.
Blumberg addressed one of Wright's journal entries in which he discussed an incident in which the victim rejected his advances: "That was the day I decided to kill her for sure. She rejected me. . . . I planned a murder-suicide. I know I'd go to jail for life and I didn't want to go to jail. I knew it was illegal. . . . [B]ut I didn't think it was wrong." Blumberg opined that the entry showed that "he knows that he's committing a crime. He knows that he could go to jail indefinitely. But in his disturbed state of mind, he believes that this is a reasonable thing to do. And, in fact, it's the right thing to do . . . ."
When asked about the level of Wright's planning, Blumberg testified that "the overwhelming majority of people who have major mental illnesses are certainly capable of . . . acting in a deliberate way and thinking in a deliberate and purposeful way and planning." Blumberg opined that, with regard to knowing that his acts were wrong, "this is where [Wright's] mental illness impaired him. He was severely depressed. He was psychotic. He was out of touch with reality. He perceived this as a very reasonable course of action." Blumberg also believed that Wright's lack of effort to flee the scene or avoid arrest indicated "[t]hat he likely didn't perceive his actions as wrong, although illegal."
Blumberg diagnosed Wright with schizoaffective disorder depressive type, opioid dependence on hydrocodone, and schizoid personality disorder. He concluded that Wright "clearly . . . understood the nature and quality of what he was doing," but his "schizoaffective disorder depressive type prevented him from knowing right from wrong with respect to the crime."
On cross-examination, Blumberg acknowledged that it was Wright's purpose to shoot and kill the victim. He also acknowledged that Wright wrote lies in his journal entries about the victim in an attempt to have her share blame in his intended murder-suicide, and that he was capable of lying if he chose to lie.
Timothy Michals, M.D., an expert in psychiatry and forensic psychiatry, testified for the State. Michals agreed that Wright had a history of schizoaffective disorder and depression. He also diagnosed Wright with "mixed personality disorder with obsessive and borderline features," and a history of substance abuse related to hydrocodone.
Nevertheless, Michals concluded that Wright "knew the nature and quality of [his] actions," and "knew that those actions were wrong." In coming to this conclusion, Michals relied on his interview with Wright, as well as many of the same materials on which Blumberg had relied.
On July 22, the jury rejected the insanity defense and found Wright guilty. In a separate verdict, the jury found that the murder involved depravity of mind. Wright moved for a new trial and a judgment of acquittal. On October 15, the trial judge denied his motions and imposed the sentence described above. This appeal followed.
II.
Wright raises the following issues on appeal:
POINT I: THE AGGRAVATING FACTOR UNDER N.J.S.A. [2C:11-3(c)(4)(c)] SHOULD HAVE BEEN DISMISSED BASED ON THE GRAND JURY RECORD.
POINT II: SINCE THE GRAND JURY PRESENTATION WAS FUNDAMENTALLY UNFAIR, THE INDICTMENT SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY.
POINT III: THE TRIAL COURT ERRED IN NOT GRANTING [WRIGHT'S] MOTION FOR A CHANGE OF VENUE OR FOR A FOREIGN JURY.
POINT IV: THE TRIAL COURT ERRED IN NOT SUPPRESSING EVIDENCE OBTAINED PURSUANT TO SEARCH WARRANTS, AS THE SUPPORTING AFFIDAVITS WERE INVALID DUE TO MATERIAL OMISSION AND FAILED TO ESTABLISH PROBABLE CAUSE.
POINT V: [WRIGHT'S] STATEMENTS TO POLICE SHOULD HAVE BEEN SUPPRESSED.
POINT VI: AN UNDULY PREJUDICIAL PHOTOGRAPH SHOULD HAVE BEEN EXCLUDED BY THE TRIAL COURT.
POINT VII: THE TRIAL COURT ERRED IN NOT GRANTING [WRIGHT'S] ORIGINAL MOTION AND MOTION FOR RECONSIDERATION TO LIMIT SENTENCING BASED UPON THE PROHIBITION OF THE EX POST FACTO APPLICATION OF N.J.S.A. 2C:11-3 FOLLOWING THE ABOLITION OF THE DEATH PENALTY IN NEW JERSEY.
POINT VIII: THE TRIAL COURT ABUSED ITS DISCRETION BY ENGAGING IN A PATTERN OF DENYING DEFENSE CHALLENGES FOR CAUSE DURING VOIR DIRE, WHICH REQUIRED [WRIGHT'S] USE OF NUMEROUS PEREMPTORY CHALLENGES, THUS UNDERMINING HIS RIGHT TO RECEIVE A FAIR TRIAL.
POINT IX: THE TRIAL COURT ERRED IN DENYING [WRIGHT'S] MOTION FOR A MISTRIAL DURING AND AFTER TRIAL BASED ON DETECTIVE CAVAGNARO'S MISCONDUCT IN TESTIFYING THAT [WRIGHT] INVOKED HIS RIGHT TO COUNSEL.
POINT X: THE TRIAL COURT CONDONED THE STATE'S CONTINUED EFFORTS TO INJECT IMPROPER MATTERS INTO THE TRIAL.
POINT XI: THE TRIAL COURT ERRED IN DENYING [WRIGHT'S] MOTION FOR JUDGMENT OF ACQUITTAL ON THE "DEPRAVED MIND" AGGRAVATING FACTOR.
POINT XII: THE TRIAL COURT ERRED IN NOT DISMISSING THE JURY FOREPERSON DURING TRIAL.
POINT XIII: CUMULATIVE ERRORS WARRANT REVERSAL OF [WRIGHT'S] CONVICTION.
A.
We first address the arguments concerning the trial judge's denial of Wright's motions to dismiss some or all of the indictment. Wright argues that the record before the grand jury did not support an indictment for capital murder based on the aggravating factor concerning acting with a depraved mind. N.J.S.A. 2C:11-3(c)(4)(c) (repealed 2007). In addition, he argues that the State's overall presentation to the grand jury was fatally flawed, warranting dismissal of the indictment.
The decision to dismiss an indictment rests with "the discretion of the trial court." State v. McCrary, 97 N.J. 132, 144 (1984). A trial judge's exercise of that discretion should "not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996) (citing State v. Weleck, 10 N.J. 355, 364 (1952)).
A grand jury indictment is presumed valid and should only be disturbed if "manifestly deficient or palpably defective," State v. Ramseur, 106 N.J. 123, 232 (1987), based "on the 'clearest and plainest ground,'" State v. Perry, 124 N.J. 128, 168 (1991) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)). "[A]n indictment should not be dismissed unless the prosecutor's error was clearly capable of producing an unjust result. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error." State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001).
The State's "sole evidential obligation" in a grand jury proceeding "is to present a prima facie case that the accused has committed a crime." Hogan, supra, 144 N.J. at 236. The role of the grand jury is "to investigate potential defendants and decide whether a criminal proceeding should be commenced. Credibility determinations and resolution of factual disputes are reserved almost exclusively for the petit jury." Id. at 235 (citation omitted). "Nevertheless, . . . the State may not deceive the grand jury or present its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" Id. at 236. Hence, the State has a "limited duty" to present evidence favorable to the accused, "triggered only in the rare case" where evidence "directly negates the guilt of the accused and is clearly exculpatory." Id. at 237.
"[A] prosecutor's obligation to instruct the grand jury on possible defenses is a corollary to [the] responsibility to present exculpatory evidence." Hogan, supra, 336 N.J. Super. at 341. The State's obligation to present an exculpatory defense arises "only when the facts known to the prosecutor clearly indicate or clearly establish the appropriateness of an instruction." Id. at 343. This duty does not require the State to "meticulously" examine "the entire record of investigative files to see if some combination of facts and inferences might rationally sustain a defense or justification." Ibid. (citing State v. Choice, 98 N.J. 295, 299 (1985)).
In addition, errors that occur during the grand jury proceeding are typically deemed cured if the petit jury finds the defendant guilty. State v. Cook, 330 N.J. Super. 395, 411 (App. Div.), certif. denied, 165 N.J. 486 (2000); State v. Laws, 262 N.J. Super. 551, 563 (App. Div.), certif. denied, 134 N.J. 475 (1993); State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 799, 133 L. Ed. 2d 731 (1996). But see United States v. Mechanik, 475 U.S. 66, 70 n.1, 106 S. Ct. 938, 942, 89 L. Ed. 2d 50, 56 (1986) ("automatic reversal" for "racial discrimination in the selection of grand jurors").
Having considered Wright's arguments in light of the applicable law and the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
At the time Wright was indicted, New Jersey's death penalty had not been repealed. Consequently, the State was permitted to ask the grand jury to consider whether there was prima facie evidence that "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim." N.J.S.A. 2C:11-3(c)(4)(c) (repealed 2007).
As the trial judge recognized, the Supreme Court had narrowed the language of that aggravating factor to consideration of whether the murder "involved torture, depravity of mind, or an aggravated [assault] to the victim." State v. Ramseur, supra, 106 N.J. at 197-200, 206 n.33, 211. In this case, the State only asked the grand jury to consider whether the murder involved "depravity of mind."
"Depravity of mind" refers to a person who murders another "without purpose or meaning." Id. at 209. The individual who kills another "because he likes it, . . . because it makes him feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder, evinces . . . depravity of mind." Ibid. (footnotes omitted). However, the depravity factor may not be considered where the defendant murdered for a purpose, even if "completely unjustified." See id. at 209, 211; see also State v. Gerald, 113 N.J. 40, 66 (1988). Such purposes include "greed, envy, revenge, or another of those emotions ordinarily associated with murder." Ramseur, supra, 106 N.J. at 211; see also State v. Matulewicz, 115 N.J. 191, 198 (1989) (suggesting that depravity of mind factor may be considered where killing was done for "thrill" or was "bereft of anger or frustration or a recognizable human emotion"). The analysis hinges on the defendant's state of mind. See State v. Oglesby, 122 N.J. 522, 533 (1991).
In denying the motion to dismiss, the motion judge analogized the present case to State v. Zola, 112 N.J. 384 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989), concluding that the grand jury evidence could support a finding that defendant evinced a depraved mind. In Zola, id. at 390, 433-34, despite remanding for a new death penalty trial, the Court nevertheless addressed defendant's contention that "there was insufficient evidence to consider certain elements" of aggravating factor (c)(4)(c). The Court stated:
On this record, although there was some evidence of a motive of revenge, a properly charged jury might have concluded that the murder served no purpose of the defendant other than the desire to kill. On the remand the trial court should not submit to the jury any c(4)(c) elements that do not find support in the record.We find no abuse of the judge's discretion in denying the motion to dismiss the aggravating factor because there was evidence in the grand jury record from which a properly charged jury could find that Wright had no purpose other than the desire to kill.
[Id. at 434 (citation omitted).]
We reject Wright's remaining arguments concerning the presentation to the grand jury. "[A]n indictment may be based largely or wholly on hearsay and other evidence which may not be legally competent or admissible at the plenary trial." State v. Holsten, 223 N.J. Super. 578, 585 (App. Div. 1988) (citation and internal quotation marks omitted); see also State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987) ("A grand jury may return an indictment based largely or wholly on hearsay testimony."). Where there is sufficient evidence to sustain the grand jury's charges, the indictment should not be dismissed. Holsten, supra, 223 N.J. Super. at 585-86.
As we held in State v. Ferrante, 111 N.J. Super. 299, 306 (App. Div. 1970), "[a]bsent misconduct or abdication by grand jurors, the question whether evidence before a grand jury was competent or incompetent, . . . [is] irrelevant on a motion to dismiss the indictment." We see no such misconduct in this case.
B.
We turn to Wright's arguments with respect to his motions to suppress his statements and the items found during searches authorized by four search warrants.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011) outlines a different standard for cases involving videos of police interrogations. Because there were no videos in this case, that standard is not applicable.
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it
the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007).]
Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
i.
In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that "constitutional rights have not been trampled upon." State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). In cases not involving a videotaped interrogation, see Diaz-Bridges, supra, 208 N.J. at 565-66, we generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," Locurto, supra, 157 N.J. at 471, nor will we ordinarily draw conclusions regarding witness credibility, State v. Segars, 172 N.J. 481, 501 (2002). Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
A trial judge will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of rights was "knowing, intelligent, and voluntary." Patton, supra, 362 N.J. Super. at 42. The trial judge must specifically consider the defendant's "characteristics . . . and the nature of the interrogation," and also may consider "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978)).
Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey places "a mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962) (citing Smith, supra, 32 N.J. at 544).
A suspect's confession is not considered voluntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession resulted from the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is "'the product of an essentially free and unconstrained choice'" where the defendant's will has not been "'overborne and his capacity for self-determination [has not been] critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate subjection to "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.
The trial judge credited the testimony of the police witnesses and concluded that there were no Miranda violations. His factual findings are fairly supported by the evidence and are, consequently, binding on us. The judge found that Wright's initial statement to Landi, to the effect that he had shot the victim, was made before he had been identified as a suspect and placed in custody, at which time there was no obligation to give him Miranda warnings. The remaining statements were made after Wright had received his Miranda rights and agreed to speak to the police.
Although Wright displayed some psychological issues during his interactions with the officers, the judge's decision that he knowingly and voluntarily waived his Miranda rights was supported by the evidence. Wright declined to answer some questions, but he did not generally invoke his right to remain silent and he remained willing to answer other questions. Once he told Cavagnaro that he wanted to speak with an attorney, the questioning ended. During transportation to the county jail, Wright made some additional statements, but they were not the result of interrogation.
Our review of the record, using the totality-of-the-circumstances standard, satisfies us that the trial judge's determination that the State met its burden to prove a knowing, intelligent, and voluntary waiver beyond a reasonable doubt was supported by substantial credible evidence in the record and consistent with applicable law.
ii.
Wright also challenges searches related to his pharmacy records at ShopRite; his clothing from the Cumberland County jail; his 1997 Chevrolet Caprice, which was located at the scene of the crime; and his Pittsgrove residence. All of those searches were authorized by search warrants. Wright argues that the warrant applications did not establish probable cause for the searches.
Pursuant to the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, "'no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.'" State v. Marshall, 199 N.J. 602, 610 (2009) (quoting N.J. Const. art. 1, ¶ 7). Accordingly, a magistrate should only issue a warrant if "there is 'probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched.'" Ibid. (quoting State v. Sullivan, 169 N.J. 204, 210 (2001)). "The test requires the court to 'make a practical, common sense determination whether, given all of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Ibid. (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).
The required determination must be based solely on "'the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously.'" Id. at 611 (quoting Schneider v. Simonini, 163 N.J. 336, 363 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)). Furthermore, the particularity requirement "mandates that 'the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place'" to be searched. Ibid. (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)).
"A search warrant is presumed to be valid and an appellate court's role is not to determine anew whether there was probable cause for issuance of the warrant, but rather, whether there is evidence to support the finding made by the warrant-issuing judge." State v. Chippero, 201 N.J. 14, 20-21 (2009). A defendant has the burden to show that the warrant was not supported by probable cause or that the search was unreasonable. Marshall, supra, 199 N.J. at 612. To argue successfully that a supporting affidavit "omits material facts," a defendant "must allege deliberate falsehood or reckless disregard for the truth and must support such allegations by reliable proof sufficient to establish material falsity by a preponderance of evidence." State v. Stelzner, 257 N.J. Super. 219, 235 (App. Div.) (citing Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 682 (1978); State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987)), certif. denied, 130 N.J. 396 (1992). We will "accord substantial deference to a trial court's determination" that the warrant was supported by probable cause. Marshall, supra, 199 N.J. at 612.
We find no merit in Wright's arguments regarding the searches. There was no question that the victim had been shot to death and that Wright was the shooter. Evidence related to his relationship with the victim, the weapons, and Wright's actions were clearly relevant to the ongoing police investigation, and there was probable cause to believe that such evidence would be located at the pharmacy, in Wright's car and residence, and on the clothing he wore at the time of the shooting.
In summary, the trial judge did not err in refusing to suppress the statements or the items seized during the searches.
C.
We now turn to the issues related to the jury. Wright argues that the judge (1) should have granted his motion for a change in venue or empanelling of a foreign jury based upon pretrial publicity concerning the case, (2) erred by refusing to dismiss jurors for cause during jury selection, and (3) erred by refusing to excuse the jury foreperson during the trial.
i.
Rule 3:14-2 requires a trial judge to grant a motion for a change of venue or for a foreign jury if the judge "finds that a fair and impartial trial cannot otherwise be had." The judge "must consider whether the change . . . is 'necessary to overcome the realistic likelihood of prejudice from pretrial publicity.'" State v. Nelson, 173 N.J. 417, 475 (2002) (quoting State v. Williams, 93 N.J. 39, 67 n.13 (1983)).
The judge also must consider
"[t]he distinction . . . between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of theHowever, even "pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury." State v. Koedatich, 112 N.J. 225, 268 (1988) (citing Biegenwald, supra, 106 N.J. at 35), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).
publicity on the impartiality of the jury panel."
[Ibid. (alterations in original) (quoting State v. Biegenwald, 106 N.J. 13, 33 (1987)).]
Publicity that is presumed prejudicial involves "a 'torrent of publicity that creates a carnival-like setting' or 'a barrage of inflammatory reporting that may but need not include all of the following: evidence that would be inadmissible at the trial, editorial opinions on guilt or innocence, and media pronouncements on the death-worthiness of a defendant.'" Nelson, supra, 173 N.J. at 475 (quoting State v. Harris, 156 N.J. 122, 143, 147-48 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001)). However, "[c]ases in which prejudice due to pretrial publicity may be presumed are relatively rare and arise out of the most extreme circumstances." Koedatich, supra, 112 N.J. at 269 (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539, 554, 96 S. Ct. 2791, 2800, 49 L. Ed. 2d 683 (1976)).
Our Supreme Court has established a non-exhaustive list of factors for use in determining the existence of presumed prejudice:
(1) evidence of extreme community hostility against defendant;
(2) prominence of either the victim or defendant within the community;
(3) the nature and extent of news coverage;
(4) the size of the community;
(5) the nature and gravity of the offense; and
(6) the temporal proximity of the news coverage to the trial.
[Nelson, supra, 173 N.J. at 476.]
When pretrial publicity does not create a presumption of prejudice, the trial court may ensure the defendant's constitutional right to an impartial jury by relying on voir dire to assess the extent to which jurors have been biased by pretrial publicity. See Koedatich, supra, 112 N.J. at 274. However, "'the jurors actually empanelled need not be ignorant of the facts of the case.'" Id. at 268 (quoting State v. Sugar, 84 N.J. 1, 23 (1980)); see also Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751, 756 (1961).
Wright's motion was filed in 2007, two years after the homicide. Although the trial judge did not specifically follow the analysis outlined above, he determined that Wright had "not established by clear and convincing proofs that a fair and impartial trial cannot be had in this county or [with local jurors]," relying on the standard enunciated in State v. Wise, 19 N.J. 59, 73-74 (1955).
The Supreme Court may have modified the Wise standard of proof in Williams, supra, 93 N.J. at 67 n.13, in which it held that, "[i]f . . . the trial court determines in its sound discretion at time of trial that a change of venue is necessary to overcome the realistic likelihood of prejudice from pretrial publicity, a change of venue may be ordered. In this context, State v. Wise will no longer apply." However, the modification may only be applicable when weighing alternatives to closing a pretrial proceeding to the press and public, which was the "context" in which the modification was established. Id. at 66-67.
We are satisfied that Wright did not present sufficient evidence to establish that pretrial publicity was so pervasive and hostile that it should be presumed to have influenced jurors. All but five of the news articles submitted in support of the motion were published during the period immediately after the crime. The most recent article was written five months before the judge decided the motion to change venue. The articles' references to Wright did not approach the "horrendous" and hostile accounts of the defendant that justified a change of venue in State v. Timmendequas, 161 N.J. 515, 551 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In addition, the motion was brought approximately three years before the trial took place. There was no renewal of the motion prior to trial, as permitted by Timmendequas. Id. at 554.
We are satisfied that the judge did not abuse his discretion in denying the motion for a change of venue or use of a foreign jury. He appropriately determined that bias could be assessed during jury voir dire.
ii.
Wright next contends that he was denied a fair trial because the trial judge abused his discretion by denying challenges for cause during the voir dire.
"The securing and preservation of an impartial jury goes to the very essence of a fair trial." Williams, supra, 93 N.J. at 60. Jurors must be "'as nearly impartial "as the lot of humanity will admit." ' " State v. Singletary, 80 N.J. 55, 62 (1979) (quoting State v. Jackson, 43 N.J. 148, 158 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)). "[J]urors who have formed an opinion as to the guilt or innocence of the defendant must be excused" unless "it is demonstrated that 'the juror can lay aside his [or her] impression or opinion and render a verdict based upon the evidence presented in court[.]'" Williams, supra, 93 N.J. at 61 (quoting Sugar, supra, 84 N.J. at 23).
However, because appellate courts are unable "to appreciate fully the dynamics of a trial proceeding," trial judges are afforded "considerable discretion in determining the qualifications of prospective jurors." State v. DiFrisco, 137 N.J. 434, 459 (1994). Even in cases in which a trial judge errs in the exercise of that discretion, a conviction will not be reversed based upon that error alone. To prove reversible error,
a defendant must show (1) that the trial court erred by failing to remove a juror for cause; (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges; and (3) that at least one of the remaining jurors that sat on the jury was a partial juror.
[Id. at 471.]
In this case, we need not review the trial judge's decisions not to excuse jurors for cause because Wright cannot satisfy the second and third elements necessary to a finding of reversible error.
iii.
Wright argues that he was denied a fair trial because the judge refused to dismiss the jury's foreperson, who informed the judge during the trial that she recognized several spectators at the trial.
The United States and New Jersey Constitutions entitle a defendant to a trial by an impartial jury; such a jury may only consider the evidence before it. State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div.) (citing Williams, supra, 93 N.J. at 60), certif. denied, 151 N.J. 466 (1997). External influences which have the capacity to affect the jury's decision warrant reversal. Ibid. (citing Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)). Where the record suggests the existence of such influences, but is silent in regard to their effect, prejudice is presumed. See id. at 486-87 (citing State v. Grant, 254 N.J. Super. 571, 584 (App. Div. 1992)). Influences which are categorically presumed prejudicial include "'any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury.'" Id. at 487 (quoting Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654, 656 (1954)). The State bears the burden to show that any such influence was harmless. Ibid.
Where an allegation of outside influence arises during trial, the judge must determine if the alleged influence "has the capacity to prejudice the defendant," and if so, the judge must conduct voir dire to determine whether jurors were exposed to that influence. See ibid. (citing State v. Bey, 112 N.J. 45, 84-86 (1988)). If one or more jurors were exposed, the judge must question each individually to assess the extent of exposure and to determine whether each "is capable of deciding the case impartially, based solely on the evidence presented at trial." Ibid. (citing Bey, supra, 112 N.J. at 87). The judge's inquiry must be probing, and the evaluation must be objective; it is insufficient to rely on "the jurors' subjective evaluation of their own impartiality." See id. at 487-88 (citing State v. Weiler, 211 N.J. Super. 602, 609-12 (App. Div.), certif. denied, 107 N.J. 37 (1986)).
In this case, the juror herself informed the judge that she recognized a family in the audience. The judge conducted the required voir dire to ascertain the extent of the juror's relationship with the family. The juror stated that she lived near them, that they attended her church, and that she had known them her entire life. Nevertheless, the juror told the judge that they were not really friends, and that her conversations with them did not go beyond "Hi, how are you."
Defense counsel was concerned that the juror at issue would feel compelled to reach a result satisfactory to the spectators she knew. That contention was explored in the following exchange during the voir dire:
THE COURT: Okay. Would you feel compelled in any fashion rendering a verdict in one
way or another because you recognize somebody in the audience?
[JUROR]: No.
THE COURT: Counsel, do you have any questions?
[DEFENSE COUNSEL]: Along those same lines, would you feel like you would have to render a particular verdict in order to satisfy the people that you go to --
[JUROR]: No.
[DEFENSE COUNSEL]: -- go to church with?
[JUROR]: No, no, no.
[DEFENSE COUNSEL]: Okay. Have any of them tried to contact you in any way?
[JUROR]: No.
Following that exchange, the prosecutor told the judge and defense counsel that he understood that the homicide had been discussed at the victim's church. Defense counsel expressed renewed concern. The trial judge called the juror back to side bar to ask further questions. Although the juror attended her church regularly, she stated that the man she knew in the audience only attended her church about once a month, the wife's attendance "varie[d]," and the daughter did not attend. The homicide had not been discussed during services at the juror's church, and her church was not the one attended by the victim. In addition, the juror was not aware that any members of the victim's family attended her church.
We are satisfied from our review of the record that the trial judge did not abuse his discretion in denying the application to remove the juror. The judge, who questioned her and had the opportunity to evaluate her during the voir dire, credited her assertion that she would not feel compelled to reach a particular verdict because she knew the spectators.
D.
We now turn to issues raised with respect to the conduct of the trial. Wright argues that the trial judge erred in (1) admitting an autopsy photograph showing the victim's heart and (2) denying his motion for a mistrial when one of the police witnesses mentioned that he had invoked his right to counsel. In addition, Wright argues that the trial judge "condoned" the State's efforts "to inject improper matters" into the trial. He further argues that cumulative error resulted in an unfair trial.
i.
With respect to evidential rulings, our standard of review is abuse of discretion. State v. Burns, 192 N.J. 312, 332 (2007). "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (internal quotation marks omitted).
The State sought to introduce an autopsy photograph of the victim's heart with a metal probe showing the trajectory of a bullet through the heart. Over Wright's objection, the motion judge permitted use of the photograph, but ordered that it be redacted to make it less graphic and that it not be enlarged. The judge determined that it was relevant to the issue of the cause of death. At trial, prior to summation, Wright sought to have the photograph removed from evidence, arguing that the pathologist's testimony rendered the photograph unnecessary. The judge denied the application. Wright argues that the judge abused his discretion.
The judge performed an analysis under N.J.R.E. 403 and concluded that the probative value outweighed the prejudice. While we agree that the photograph was relevant to the issue of cause of death, we note that Wright did not dispute that he shot the victim numerous times, using two handguns, and that she died as a result. In addition, the State presented medical testimony concerning the cause of death. Consequently, we question the judge's determination that the probative value was sufficient to overcome the inherent prejudice of the photograph. Nevertheless, the judge took appropriate steps to have the picture redacted to show the minimum necessary to demonstrate the trajectory of the bullet through the heart. Defense counsel and the prosecutor agreed upon the photograph as redacted.
Although we conclude that the picture should not have been used at trial, we are satisfied that any error was harmless. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2. The harmless error standard requires that there be "some degree of possibility that [the error] led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973) (citing State v. Macon, 57 N.J. 325, 335-36 (1971)).
The single picture shown to the jury had no bearing on Wright's insanity defense. This is not a case, such as State v. Lockett, 249 N.J. Super. 428, 432 (App. Div.), certif. denied, 127 N.J. 553 (1991), in which graphic autopsy pictures compromised the jury's opportunity to weigh "objectively and dispassionately" whether defendant committed a lesser or greater offense. We find no basis to conclude that the use of the picture at issue "led the jury to a result it otherwise might not have reached," Bankston, supra, 63 N.J. at 273, with respect to the issue of the insanity defense.
ii.
Wright argues that the trial judge erred in refusing to grant a mistrial after Cavagnaro testified that Wright said he would provide a taped or written statement, but "wanted to speak to an attorney first."
There is no question that the testimony was improper. Indeed, the prosecutor informed the judge at the time that the witness had been instructed not to mention the request for counsel. Wright moved for a mistrial, arguing that a curative instruction would be insufficient because the jury could interpret the request for an attorney as undercutting his insanity defense. After allowing time for legal research and further argument, the judge reiterated his initial ruling that he would deny the mistrial application, but would instruct the jury that the testimony had been stricken and must be disregarded. The judge also instructed the jury that Wright had a constitutional right to request the assistance of counsel.
It was suggested at oral argument of the appeal that the same detective has disregarded such instructions on several other occasions. However, that assertion is not supported in the record before us. If there is substance to that allegation, we would expect the prosecutor to investigate and take any action warranted by the results of that investigation.
A mistrial is an extraordinary remedy that should be used only to prevent a manifest injustice. State v. Winter, 96 N.J. 640, 647-48 (1984). The decision to grant or deny a motion for a mistrial is within the discretion of the trial judge. State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Our scope of review of such a decision is limited to whether the trial court abused its discretion. Ibid.
Wright admitted the killing, but presented an insanity defense. The essence of the defense was that, although Wright knew he was committing a crime, he did not know that what he was doing was wrong. Consequently, there was no direct inconsistency between the insanity defense as presented and Wright's willingness to make a further statement only after he consulted with counsel. Additionally, in contrast to the cases on which Wright relies (Wainwright v. Greenfield, 474 U.S. 284, 295, 106 S. Ct. 634, 640-41, 88 L. Ed. 2d 623, 632 (1986); Oglesby, supra, 122 N.J. at 534-35; State v. Hyde, 292 N.J. Super. 159, 164 (App. Div. 1996)), the State did not refer to his request for counsel again and did not argue that the request undercut the defense. In that context, we see no abuse of the judge's discretion in giving a curative instruction rather than granting a mistrial.
iii.
Wright makes two generalized arguments that his right to a fair trial was compromised by the judge's condoning of "the State's continued efforts to inject improper matters into the trial" and by cumulative error. Having reviewed those arguments in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).
E.
Finally, we address the issues raised with respect to Wright's sentence. He first argues that his sentence constituted an ex post facto application of N.J.S.A. 2C:11-3(b)(4), which establishes life imprisonment without eligibility for parole, to be served in a maximum security prison, as the penalty for purposeful or knowing murder. That sentence, however, can only be imposed if a jury finds beyond a reasonable doubt that any one of the enumerated aggravating factors exists. He further argues that, even if he is subject to N.J.S.A. 2C:11-3(b)(4), the trial judge erred in refusing to grant his post-trial motion to set aside that aspect of the jury verdict.
i.
We find no merit to Wright's first argument as it concerns his exposure to life in prison without parole. State v. Baylor, 423 N.J. Super. 578, 598-600 (App. Div. 2011), certif. denied, 210 N.J. 263 (2012). Like the defendant in Baylor, Wright committed the crime in 2005, at which time the possibility of life in prison without parole on a finding of one aggravating factor was included in N.J.S.A. 2C:11-3(b)(4) as an alternative to the death penalty.
The issue of whether application of the place of confinement provision violates the ex post facto clauses of the United States and New Jersey Constitutions appears to be moot. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art IV, § 7, ¶ 3. At oral argument, the State represented that Wright is incarcerated in a maximum security prison pursuant to the Commissioner of Correction's exercise of discretion under N.J.S.A. 30:4-91.2, which authorizes the Commissioner to "designate as a place of confinement any available, suitable, and appropriate institution or facility" and "at any time [to] transfer a person from one place of confinement to another." We understand that representation to mean that the Commissioner would have the authority to house Wright in a less secure facility in the exercise of the same discretion. In any event, the provision calling for mandatory confinement in a maximum security prison was not added until 2007, after the crime had been committed. It is clear that a law enhancing the punishment for an offense cannot apply to an offense committed prior to the enactment of that law. State v. Fortin, 198 N.J. 619, 626-27 (2009).
ii.
We find more substance in Wright's argument that the State, having argued forcefully during the guilt phase of the trial that Wright killed the victim because he was envious and angry with her, should not have been permitted to argue during the penalty phase that he acted without a purpose.
Although we have already outlined the parameters of the depravity-of-mind aggravating factor, we repeat some of the discussion to provide the context for our discussion here. N.J.S.A. 2C:11-3(c)(4)(c) (renumbered as (b)(4)(c) in 2007) established the following aggravating factor: "The murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim." In Ramseur, supra, 106 N.J. at 197-200, 206 n.33, 211, the Supreme Court narrowed the language of that aggravating factor so that a sentencing court or jury may only consider whether the murder "involved torture, depravity of mind, or an aggravated [assault] to the victim." In this case, the State argued that the murder involved "depravity of mind."
"Depravity of mind" characterizes a defendant who murders "without purpose or meaning." Id. at 209. It is evinced by the person who kills for "pleasure" or to "feel better, who kills bystanders without reason, who kills children and others whose helplessness would indicate that there was no reason to murder." Id. at 209, 211 (footnote omitted). If the defendant murdered for a purpose, no matter how unjustified, such depravity may not be found. See ibid.; see also Gerald, supra, 113 N.J. at 66. Purposes under this analysis may include "greed, envy, revenge, or another of those emotions ordinarily associated with murder." Ramseur, supra, 106 N.J. at 211; see also Matulewicz, supra, 115 N.J. at 198 (suggesting that depravity of mind factor may be considered where killing was done for "thrill" or was "bereft of anger or frustration or a recognizable human emotion"). Defendant's state of mind lies at the core of the analysis. See Oglesby, supra, 122 N.J. at 533.
In his summation during the guilt phase, the prosecutor repeatedly emphasized that Wright was sad and angry, and argued that anger "was one of the motivations for everything that occurred leading up to and happening [the day he killed the victim]." The prosecutor then quoted from Wright's journal entries:
"I felt justified in acting as I did. I envied her life. Her being a professional. I wanted to be in her life. I was jealous that she was married. . . . [S]ince I couldn't get her into my life, I decided to kill her by shooting her. . . . I was attracted to her. She had a great life. Why should she have such a good life? Why not me?"
Despite Wright's belief, the victim was not married.
The prosecutor went on to argue that Wright killed the victim because he was envious, and because he was angered when the victim rejected one of his advances:
He talked about how angry he was. He talked about his emotions. Objectively speaking, should he have been envious or jealous?
Well, [the victim], . . . this professional, took the chocolates and then said no. But subjectively[,] [h]e thought to himself, "Wow, now I have a reason to kill her. She has all the things essentially that I should have. She has a good job. She's a professional. I'm a professional but I don't have a good job. Why don't I do this? Why don't I kill her?"
However, after the jury returned its verdict of guilty, the prosecutor abandoned his earlier assertions and presented a contradictory argument in his penalty-phase summation. His second summation was as follows:
There is one further consideration for you the 12 jurors that sat and deliberated earlier today. And it is once again a very, very narrow issue and deals with whether or not the murder that was committed was done with depravity of mind. But it has a very specific meaning under the Criminal Code.
It refers to the murder that we've already talked about, specifically that that murder had no meaning, it was without purpose and it was without any sort of meaning.
An example would be someone who commits a murder simply because it makes him or her feel better.
There's a discussion, and you'll hear a discussion as part of the instruction from the Judge which talks about the senselessness of the offense, the senselessness of the murder. And what the focus is with respect to that is what -- and I'll read from the charge itself and you'll hear this -- what society is concerned with here is the complete absence from society's point of view of recognizable emotions or motivations that ordinarily explain murder. . . .
There are some motivations that are ordinarily recognized, not justified but recognized in certain situations.
Depravity deals with those situations where it's senseless, where those don't exist.
For instance, greed, anger, revenge, jealousy, that sort of stuff, is a recognized motivation but not in the sense of depravity that we're talking about here, depravity meaning total senselessness.
If you find that, that one of these other emotions or motivations for murder do not exist and that you find that this was, in fact, a senseless murder, as defined by the statute, then the State has made out its case for that term, that aggravating factor, depravity of mind.
Now, in the argument that I made to you late this morning, early afternoon, and you can consider all the evidence, you must consider it anew in your deliberations, such things as the fact that Mr. Wright really had no relationship with Carol Ann Bradford in this particular matter. The only contact he had, and certainly that wouldn't serve as any sort of motivation for killing her was that she was simply his pharmacist, she was the pharmacist for Mr. Wright.
They didn't know each other. They didn't have any sort of relationship. They didn't speak together on the phone. They weren't boyfriend/girlfriend. Nothing. There was no relationship other than this business or patient, so to speak, relationship between the two of them.
Now, so when you consider that, and you consider the fact that they had no relationship and you consider the fact of what happened here, because it was Steven Wright that committed this murder, and the way he committed it, you can consider it as well in that he shot her 10 times. All of that goes towards the depravity, the senselessness of this particular case.
Now, this morning I did mention to you that Steven Wright, and I believe I phrased it in such a way as had an objective/subjective standard of anger. That Mr. Wright was an angry man, sad man and angry man.
But what the principal focus here is, that the statute is on, [is from] society's standpoint. In other words, objectively speaking I'll phrase it that way. Objectively, society's standpoint recognizes anger as although not a proper one, but a motivational reason why some people commit murder. But that's societal standpoint. Not the subjective standpoint of this particular individual.
Meaning the fact that he's an angry man but it wasn't Carol Ann Bradford through anything that she did or the way that she acted or incited him to be angry, that this in fact comes under a senseless standard.
And when it comes under a senseless standard, and there is no purpose for the murder that happened, it therefore comes within the definition of depravity of mind. Someone who does it because it makes him feel better.
And that's really what's going on here. That was done ultimately because it made Mr. Wright feel better. Without a reason, no reason, senseless, that's what he chose to do.
The State's new argument was not only inconsistent with the position it had just taken during the guilt phase, "that [anger] was one of the motivations for everything that occurred leading up to and happening [the day Wright killed the victim]," it is also inconsistent with the Supreme Court's holding in Ramseur that "[t]he words ['depravity of mind'] mark society's concern to punish severely those who murder without purpose or meaning as distinguished from those who murder for a purpose (albeit a completely unjustified purpose)." Ramseur, supra, 106 N.J. at 209.
The essence of the State's argument was that, because Wright's anger at the victim was unjustified, the murder was senseless. That, however, is not the law as established by Ramseur. As the Court held in Gerald, supra, 113 N.J. at 66, where "greed, anger, revenge, or other similar motive is present, the depravity aspect of Section (c)(4)(c) should not be submitted to the jury." See also State v. Perry, 124 N.J. 128, 174 (1991) ("The so-called 'purposeless murder,' then, is the killing that involves none of the emotions or motives normally associated with murder, but rather is done at the murderer's whim or for . . . pleasure.") (citing Matulewicz, supra, 115 N.J. at 198 (crime "bereft of . . . a recognizable human emotion")).
Prosecutors have a duty to refrain from employing "'improper methods calculated to produce a wrongful conviction.'" State v. Wakefield, 190 N.J. 397, 436 (2007) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Thus, prosecutors must "'refrain from any conduct lacking in the essentials of fair play, and where . . . conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered.'" Id. at 437 (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)). "'[T]o justify reversal, the prosecutor's conduct must have been "clearly and unmistakably improper," and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" Id. at 438 (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
The State's initial argument that Wright was motivated by anger and envy was supported by very strong evidence before the jury, especially Wright's journal entries, some of which were read during the State's first summation as quoted above. Wright's detailed planning also supports the existence of a motive. There was little evidence that Wright's actions had no purpose whatsoever. They may have been senseless in an existential sense, but the prosecutor argued forcefully in the guilt phase that they had a purpose. Consequently, it was not senseless in the legal context of the depravity-of-mind aggravating factor, because there was a purpose, albeit a completely unjustified one.
The prosecutor sought to defeat Wright's insanity defense during the guilt phase of trial by emphasizing that Wright acted with a purpose, then pirouetted in the penalty phase to argue that Wright had no purpose and so acted with depravity of mind. In light of that about-face, and because the prosecutor also misstated the relevant law, we conclude that Wright's post-trial motion to set aside the jury's finding, reached after only fifteen minutes of deliberation, that Wright acted with a depraved mind should have been granted. We are satisfied that the denial of the motion resulted in "a manifest injustice" under the particular circumstances outlined above. See State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).
We also note our concern that the picture of the heart may have inflamed the jury and influenced its verdict in the penalty phase, although we have reached the opposite conclusion with respect to the guilt phase.
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Consequently, we vacate the sentence of life in prison without the possibility of parole and remand for resentencing consistent with this opinion.
Affirmed in part, vacated and remanded in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION