State v. Josephs

• Decision Date: 15 July 2002
• Citation: 174 N.J. 44,803 A.2d 1074
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Daron JOSEPHS, Defendant-Appellant.
• Court: New Jersey Supreme Court

803 A.2d 1074

174 N.J. 44

STATE of New Jersey, Plaintiff-Respondent, v. Daron JOSEPHS, Defendant-Appellant.

Supreme Court of New Jersey.

Argued October 23, 2001.

Decided July 15, 2002.

Robert L. Sloan and Susan C. Green, Assistant Deputy Public Defenders, argued the cause for appellant (Peter A. Garcia, Acting Public Defender, attorney; Mr. Sloan, Ms. Green, Claudia Van Wyk, Deputy Public Defender II, Bernadette N. DeCastro and Mordecai D. Garelick, Assistant Deputy Public Defenders, of counsel and on the briefs).

Daniel I. Bornstein, Deputy Attorney General, argued the cause for respondent (John J. Farmer, Jr., Attorney General of New Jersey, attorney).

John J. Gibbons, argued the cause for amici curiae, Association of Criminal Defense Lawyers of New Jersey, American Civil Liberties Union of New Jersey and New Jerseyans for a Death Penalty Moratorium (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Mr. Gibbons, Lawrence S. Lustberg and Jessica A. Roth, on the brief). The opinion of the Court was delivered by

LaVECCHIA, J.

Table of Contents Introduction .............................................................. 1085 I. Facts and Procedural History ........................................... 1086 II. Asserted Guilt-Phase Errors ........................................... 1093 A. Failure to Prove Own-Conduct Murder ................................. 1093 B. Sequential Instruction to Jury on Own-Conduct Murder and Accomplice Liability ........................................................... 1098 C. Other Alleged Guilt-Phase Instruction Errors ........................ 1105 1. Instruction on Serious-Bodily-Injury Murder ...................... 1105 2. Additional Asserted Instruction Errors ........................... 1108 a. Self-Defense/Defense of Others ................................ 1108 b. Passion/Provocation ........................................... 1109 D. Guilt-Phase Voir Dire Inadequacy ................................... 1109 III. Penalty-Phase Errors................................................... 1110 A. Penalty-Phase Jury Selection ......................................... 1110 1. Reference to Appellate Process .................................... 1110 2. Excusal of Juror Based on Views on Death Penalty .................. 1112 B. Conduct of Penalty-Phase Trial ....................................... 1113 1. Failure to Prove Aggravating Factor 4(g) .......................... 1113 2. Exclusion of Testimony Criticizing State's Evidence ............... 1116 3. Improper Introduction of Evidence of Similarity of Prior Murder.... 1117 4. Introduction of Inflammatory Victim-Impact Evidence................ 1121 5. Prosecutor's Remarks During Summation ............................ 1122 a. Remarks About Duty to Society ................................. 1122 b. Remarks About Experience as a Prosecutor ...................... 1122 c. Remarks About Failure to Testify .............................. 1123 d. Remarks about Inadequacies of Defense Expert .................. 1123 e. Remarks About Defendant's Relationship with Son ............... 1124 C. Alleged Error in Jury Charge During Penalty Phase ................... 1124 D. Penalty-Phase Jury's Alleged Failure to Vote Individually on Aggravating Factors ............................................................. 1126 IV. Additional Issues .................................................... 1128 A. Standard of Proof of Circumstantial Evidence for By-Own Conduct Murder ............................................................. 1128 B. Constitutionality of New Jersey Death Penalty Statute ............... 1130 V. Conclusion ............................................................ 1132

A Camden jury convicted defendant Daron Josephs of purposeful or knowing murder by his own conduct of Leon Mitchell and Barrington McLean, conspiracy to murder Mitchell, McLean, Christine Williams, and Emil Josephs, and related weapon-possession offenses. A separate jury sentenced defendant to death for the murder of Mitchell and McLean. In this appeal, defendant claims error in both the guilt and penalty phases of his trial. He also asserts that his capital sentence is disproportionate and should be vacated.

We affirm defendant's non-capital convictions. Also, defendant's convictions of purposeful or knowing murder of McLean and Mitchell are sustained. Because of error affecting the by own-conduct determinations, we hold that defendant's death eligibility cannot be sustained. Although error in the own-conduct instruction requires reversal of the death sentences, that does not affect defendant's conviction of the murders provided the State is willing to accept non-capital sentences. However, if the State intends on remand to seek again capital sentences for the murders, then defendant's guilt by his own conduct will have to be proven beyond a reasonable doubt in a second guilt-phase trial. As a consequence of our disposition, we need not and do not engage in proportionality review. We also reaffirm our case law upholding the constitutionality of New Jersey's death penalty statute.

I. Facts and Procedural History

The shootings that caused the deaths of Mitchell, McLean, and Williams on January 22, 1995, resulted from a dispute among brothers and friends involved in a marijuana distribution operation led by Emil Josephs. Emil lived in Camden in an apartment located at 3212 Federal Street. Residing with him at the time were his brother, Turan Josephs (TJ), and his friend Barrington McLean. The apartment occupied the second floor and attic of a house. On the second floor were two bedrooms, a kitchen, and one bathroom. McLean and TJ slept in the second floor bedroom located at the front of the house. Emil used the attic as his bedroom.

Although drugs were not distributed from the apartment, Emil kept a quantity of marijuana in a compartment under the stairs leading to the attic. Significant amounts of cash also were kept in the house at times. The drug-dealing business had become very busy around the end-of-year holidays in 1994, taking in approximately $15,000 per week at the time of the shootings. Emil shared the profits with McLean and TJ, allowing them a one-third share to split between themselves.

Sometime during December 1994, defendant (whose nickname is Dee) and Hugh Josephs Jr. (nicknamed Junior), Emil's half-brothers, moved into the apartment because they had agreed to install carpeting for Emil. It is noteworthy that defendant and Junior arrived in a red Honda Civic that they used while they remained at the apartment on Federal Street. In terms of familial relations, we also note that Emil, TJ, defendant, and Junior share the same father, Hugh Josephs Sr.; however, Emil and TJ have a different mother from defendant and Junior.

Junior was promised $2500, and defendant $1500, to lay the carpeting. Lacking sufficient cash to pay them in full, Emil compensated Junior and defendant with marijuana to sell. The profits from those sales were sufficient to serve as payment for the carpet work. Junior and defendant then stayed on at the apartment, joining Emil's marijuana distribution business by selling for him at a designated location. Emil also enlisted Leon Mitchell and Christine Williams to become involved in the business. They too stayed at the apartment on Federal Street.

Emil was the only person present in the apartment on the evening of Saturday, January 21, 1995, who testified at defendant's trial. Other than defendant, and Junior, whose whereabouts are unknown, all of the others present were killed. According to Emil's testimony, on that Saturday he learned from his friend, "Bloody" (a business associate in the marijuana business), that defendant and Junior were selling marijuana purchased from another source, and that they were selling the other drugs at Emil's sales location. Apparently, the two were pocketing the money from those sales. Selling marijuana purchased from another distributor was contrary to Emil's direct orders to defendant and Junior when he allowed them to deal drugs for him.

Emil returned to the apartment that evening to find McLean, Mitchell, defendant, and Junior sitting in the kitchen. He had directed defendant and Junior to leave their designated sales post and to meet him back at the apartment. Emil described himself as enraged because defendant and Junior had not followed his orders. He told them they were "out of the business." The heated verbal confrontation escalated as Junior and Emil began to scuffle. Brandishing a kitchen knife, defendant approached Emil from behind, but he was disarmed by McLean. Emil ordered Junior and defendant to leave his house, and then proceeded into their bedroom where he took a nine millimeter and.45 caliber gun from their bags and began to pack their clothes. Mitchell interceded and persuaded Emil to let defendant and Junior stay for the remainder of the night because it was past midnight. Nonetheless, Emil took the two guns with him to the attic where he had a third gun, a .357. Normally, a gun would be kept under the kitchen sink for "emergencies."

Emil left his attic bedroom several times that night. The first time he took all three guns with him while he showered before retiring. Again, at approximately one in the morning he went downstairs to use the bathroom, that time taking only the nine millimeter. As he passed by, he saw defendant and Junior awake and sitting on the floor in the bedroom they were using. Emil then encountered McLean in the kitchen, awake and upset over the evening's events. Emil left the nine millimeter with McLean as a show of "respect." Emil did not want McLean to think that he intended to disarm him when all of the guns were moved to Emil's attic room.

Sometime between five and six o'clock in the morning, Emil, dressed only in a tee shirt, underwear, and slippers, went downstairs. He saw defendant and Junior...