State v. Marshall
| Decision Date | 24 January 1991 |
| Citation | 123 N.J. 1,586 A.2d 85 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Robert O. MARSHALL, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Bernadette DeCastro, Asst. Deputy Public Defender, and Judith L. Borman, First Asst. Deputy Public Defender, for defendant-appellant (Thomas S. Smith, Jr., Acting Public Defender, attorney, Bernadette DeCastro and Judith L. Borman, of counsel; Bernadette DeCastro, Judith L. Borman, James K. Smith, Jr., Deputy Public Defender, Daniel A. Warshawsky, Claudia Van Wyk, Mark H. Friedman, Robert Seelenfreund, Asst. Deputy Public Defenders, and Lucy M. Rosano, Designated Counsel, on the briefs).
Janet Flanagan, Deputy Atty. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen. of New Jersey, attorney).
TABLE OF CONTENTS
Page
Introduction ....................................................... 97
I. Facts .............................................................. 97
II. Pretrial Motions .................................................. 114
A. Letters Seized in Best Western Mailbox ...................... 114
B. Venue ....................................................... 120
III. Jury"Selection Issues ............................................. 123
A. Three Prospective Jurors Not Excused for Cause .............. 123
B. Qualification of Juror Neil Marzano ......................... 128
C. Death Qualification ......................................... 129
D. Constitutionality of Atlantic County Jury"Selection
Procedures ................................................ 134
IV. Guilt"Phase Issues ................................................ 134
A. Photographs ................................................. 134
B. Admissibility of Hearsay Statements of Robert Cumber ........ 135
C. Cross"Examination of McKinnon ............................... 138
D. Expert's Examination of Tire ................................ 138
E. Admissibility of Victim's Hearsay Statements ................ 141
F. Alleged Infringements on Defendant's Privilege Against
Self"Incrimination ........................................ 142
G. Prosecutorial Questioning Concerning Defendant's Retention
of Counsel ................................................ 147
H. Questioning and Argument Challenging Defendant's Professed
Love For His Deceased Wife ................................ 149
I. Exclusion of Testimony by Henry Tamburin .................... 151
J. Preclusion of Portion of Testimony of Defendant's Son John
Marshall .................................................. 152
K. Admissibility of Testimony Discrediting Defense Witness
Rakoczy ................................................... 152
L. Denial of Defendant's Motion for Mistrial Based on State's
Discovery Violations ...................................... 153
M. Dilution of State's Burden of Proof ......................... 154
N. Sufficiency of the Evidence ................................. 155
V. Sentencing"Phase Issues ........................................... 155
A. Aggravating Factor Duplicating Element of Crime ............. 155
B. Instructions on Aggravating Factor .......................... 156
C. Absence of Mitigating Evidence .............................. 157
D. Adequacy of Sentencing"Phase Instructions ................... 157
E. Presumption Against Imposition of Death Penalty ............. 164
VI. Other Issues ...................................................... 164
A. Prosecutorial Misconduct .................................... 164
B. Ineffective Assistance of Counsel ........................... 171
C. Constitutionality of Capital Punishment Act ................. 174
D. Cumulative Error ............................................ 174
E. Proportionality Review ...................................... 174
VII. Remand Hearing to Consider Alleged Brady Violation ................ 175
Introduction ...................................................... 175
A. Disqualification of Prosecutor's Office from Hearing ........ 178
B. Limitation of Discovery ..................................... 179
C. Limitation of Cross"Examination Regarding Willfulness ....... 184
D. Finding of Nonwillfulness ................................... 188
E. Materiality of Nondisclosure ................................ 191
F. The McKinnon Letters ........................................ 195
Conclusion ................................................................ 196
The opinion of the Court was delivered by
Defendant, Robert Marshall, was tried and convicted of conspiracy to commit the murder of Maria Marshall, N.J.S.A. 2C:5-2 and 2C:11-3a(1) or (2), and of the murder of Maria Marshall as an accomplice who procured the commission of the murder by payment or promise of payment of money, N.J.S.A. 2C:2-6 and 2C:11-3a(1) or (2). After a separate sentencing proceeding on the murder conviction, see N.J.S.A. 2C:11-3c(1), the court sentenced defendant to death, as required by the jury's verdict. It merged the conspiracy conviction with the conviction for capital murder. Defendant appeals as of right to this Court. N.J.S.A. 2C:11-3e. We affirm defendant's convictions and the sentence of death.
Defendant was tried together with co-defendant Larry Thompson, who was also charged with conspiracy to commit the murder of Maria Marshall, N.J.S.A. 2C:5-2 and 2C:11-3a(1) or (2), and with the purposeful or knowing murder of Maria Marshall by his own conduct. N.J.S.A. 2C:11-3a(1) or (2); 2C:11-3c. The jury acquitted Thompson of both charges.
Co-defendant Robert Cumber, charged with conspiracy to murder Maria Marshall, N.J.S.A. 2C:5-2 and 2C:11-3a(1) or (2), and with purposely or knowingly causing the death of Maria Marshall as an accomplice, N.J.S.A. 2C:2-6 and 2C:11-3a(1) or (2), was tried separately, convicted on both counts, and sentenced to thirty-years imprisonment without eligibility for parole.
Pursuant to a plea agreement, co-defendant Billy Wayne McKinnon, indicted for the same offenses as Cumber, pled guilty only to conspiracy to commit murder, and was sentenced to five-years imprisonment. The details of McKinnon's plea agreement are described elsewhere in this opinion. Infra at 41-42, 586 A.2d at 104.
Before summarizing the proofs presented at trial by the State and co-defendants Marshall and Thompson, we provide an overview of the evidence as a context for the discussion that follows. The State's case against defendant was weighty and compelling. Many of the State's proofs were indisputable, although their significance was sharply contested. Thus, the State proved and Marshall acknowledged his long-standing extramarital relationship with Sarann Kraushaar, which had developed to the extent that both contemplated leaving their respective spouses and living together. Marshall had taken preliminary steps toward renting a house in Beach Haven West for that purpose. It was also uncontested that Marshall had substantial debt, including a $128,000 home-equity loan and short-term bank debt in excess of $40,000. The State's proofs suggested a connection between Marshall's indebtedness and the large amount of life insurance he concededly maintained on the decedent, in excess of one-million dollars at the time of her death. Several of the policies had been acquired within months of the homicide, and Marshall and decedent were examined for an additional policy on the morning preceding Maria's death. Marshall testified that the amount of insurance maintained on himself and decedent was commensurate with sound insurance practice and realistically reflected the needs of the survivor in the event of the death of either.
The testimony of co-defendant Billy Wayne McKinnon was the most incriminating evidence against Marshall. McKinnon was a former sheriff's officer from Louisiana who was referred to Marshall by co-defendant Cumber, whom Marshall had met at a party in New Jersey in May 1984. Marshall conceded that he had hired McKinnon to investigate his wife, in order to determine whether she knew of his relationship with Kraushaar and to attempt to account for several thousand dollars in casino winnings Marshall had given Maria. Marshall admitted that he had met with McKinnon at least twice in Atlantic City, the last
meeting occurring at Harrah's casino on the night of the murder. Marshall also acknowledged that he paid McKinnon $6,300 for his investigative services, without receiving any work product, and that the last payment of $800 was made in cash at Harrah's on the night of the homicide.
McKinnon testified that Marshall hired him not to investigate his wife but to kill her. He testified that Marshall had paid him $20,000 or $22,000 prior to the murder, that an additional $15,000 was supposed to have been available for him in Marshall's pockets at the scene of the homicide, and that $50,000 more was to be paid to him out of the insurance proceeds.
McKinnon testified that the Oyster Creek Picnic Area had been selected with Marshall's concurrence as the crime scene. By prearrangement, Marshall was to feign car trouble on the way home from Atlantic City and pull into the picnic area on the pretext of checking to see what was wrong with his car. According to McKinnon, he had dropped off co-defendant Thompson at the picnic area before the Marshalls arrived and then had driven...
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