State v. Pennington

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtPOLLOCK; HANDLER; STEIN; Garibaldi
Citation575 A.2d 816,119 N.J. 547
Decision Date21 June 1990
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Frank PENNINGTON, Defendant-Appellant.

Page 547

119 N.J. 547
575 A.2d 816
STATE of New Jersey, Plaintiff-Respondent,
v.
Frank PENNINGTON, Defendant-Appellant.
Supreme Court of New Jersey.
Argued Nov. 6, 1989.
Decided June 21, 1990.

[575 A.2d 820]

Page 556

Lois De Julio, First Asst. Deputy Public Defender, and James L. Jukes, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney).

Nancy A. Hulett, Deputy Atty. Gen., for plaintiff-respondent (Peter N. Perretti, Jr., Atty. Gen. of New Jersey, attorney).

The opinion of the Court was delivered by

POLLOCK, J.

A jury found defendant, Frank Pennington, guilty of capital murder, felony murder, and possession of a firearm with the intent to use it unlawfully. He appealed the capital conviction as of right. R. 2:2-1(a)(3). As the State concedes, the trial court failed to instruct the jury that defendant was not guilty of capital murder if he knowingly or purposely caused serious bodily injury that resulted in death, as distinguished from knowingly or purposely causing the death of the victim. That failure contravenes our subsequent decision in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), and requires reversal of defendant's conviction for capital murder.

Page 557

-I-

The tragic events underlying this appeal occurred shortly after 1:00 a.m. on September 2, 1986, in "Sarge's," a neighborhood bar in East Rutherford. Defendant arrived about 11:30 p.m. A half hour later, the victim, Arlene Connors, came to help her daughter, Pam, close the bar. At about 1:00 a.m., Arlene announced that she was closing for the night. Defendant, who had drunk three beers at Sarge's, asked for a fourth, which Arlene poured while he went to the men's room. The other customers left, and defendant returned to his seat at the bar. While Pam started to sweep the floor, Arlene washed glasses in the sink opposite defendant.

The ensuing events, critical to this appeal, are subject to various interpretations. The parties agree on few material facts, except that defendant fired a single shot, which struck the victim in the heart, killing her. In a statement given to the police the night of the shooting, Pam stated that while facing away from the bar, she heard her mother curse at defendant. When she turned around, she saw her mother throw a glass at defendant. She then noticed a smoking gun in defendant's hand and heard her mother yell, "He shot me."

At trial, however, Pam denied that she saw her mother throw a glass at defendant. There, she testified that while she was turned away from the bar, she heard her mother say to defendant, "I hate to tell you this, but it's the bewitching hour." Defendant responded, "Bewitch this." Almost simultaneously, Pam heard "a lot of commotion," including the sound of breaking glass. Her mother said, "You son of a bitch." Turning around, Pam saw her mother leaning on the bar with the bottom of a broken glass in her right hand. Pam's trial testimony was corroborated to some extent by broken glass at the scene, which was located almost exclusively on the bartender's side, but not on the customer's side, of the bar.

In a sworn statement given to the police, defendant described a sequence of events similar to those included in Pam's statement,

Page 558

but different from her trial testimony. Defendant related that after the other customers had left, he pulled from his waistband a gun, which had three safeties. He told the victim, "I don't want to [575 A.2d 821] hurt nobody, I just want the money at the register." He then turned to Pam and told her to join her mother behind the bar. When he turned back to face Arlene, she cursed and threw a glass, which hit him in the chest. Defendant ducked to avoid the glass, and as he straightened up, he pulled the trigger of his gun. Defendant did not recall when he removed the three safeties on the gun, but speculated that he may have done so when he announced the robbery or after he ducked to avoid the thrown glass.

While giving his statement to the police, defendant physically demonstrated the events surrounding the shooting. At trial, Sergeant John Scioli of the Bergen County Prosecutor's Office reenacted defendant's movements. According to Sergeant Scioli, defendant stood facing Arlene with the gun in his right hand and his arm extended perpendicularly from his body. When Arlene threw the glass, defendant bent down to the left, bringing his right arm across the front of his body. Then he straightened up, and with his right hand at waist height pulled the trigger. The sergeant related defendant's description: "I just sort of ducked, and as I came back up, you know, like I don't feel like I really meant to shoot her, I just pointed the gun, and it just went off. I don't even remember taking the safety off the gun." Sergeant Scioli also related that defendant said that the victim's actions made him shoot. Believing that he had shot her in the shoulder, defendant did not realize that she was seriously injured. Showing the sergeant a scratch on his chest, defendant indicated it might have been inflicted when Arlene threw the glass at him.

At trial, the State challenged defendant's contention that a thrown glass could have caused the scratches on his chest. The State presented photographs that had been taken the day after defendant gave his statement to the police. According to the State, other injuries on defendant's body demonstrated that the

Page 559

chest scratches were too old to have been inflicted on the night of the shooting. Defendant countered with expert testimony that the wound on his chest could have been caused by impact of a blunt object such as a thrown glass, even if the glass did not break.

Defendant's wife, who had waited for him in their car outside the bar during the robbery, corroborated his version of the shooting. She testified that when defendant returned to the car, his hair and shirt were wet, and he smelled like beer. In addition, as defendant entered the car, he told his wife, "I just shot a woman. I didn't mean to do it. I didn't want to do it. I just shot a woman."

Medical experts disagreed whether the angle of the path of the bullet confirmed the State's or defendant's version of the shooting. The bullet had entered the victim's body on the outside of the left breast and had traveled in a downward path. From this and other evidence, the State's expert concluded that the shooting could not have occurred as described by defendant. Defendant's forensic pathologist concluded, however, that defendant must have returned to an upright position after ducking to avoid the glass. According to defendant's expert, if defendant had been standing upright and the victim had ducked, the bullet would have caused a wound consistent with that actually inflicted.

In October 1986, a Bergen County grand jury charged defendant with purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) and -3a(2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); and possession of a firearm with the purpose to use it unlawfully, contrary to N.J.S.A. 2C:39-4a. Pursuant to Rule 3:13-4(a), the prosecutor served defendant with a notice of aggravating factors that the State would seek to prove in support of a death sentence. See also N.J.S.A. 2C:11-3c(2)(e) (requiring the prosecutor in a capital case to give the defendant notice of any aggravating factors prior to the sentencing proceeding). In that notice, the State alleged that

Page 560

defendant had previously been convicted of murder and that the subject murder was committed while defendant was engaged in a robbery. N.J.S.A. 2C:11-3c(4)(a) and -3c(4)(g).

[575 A.2d 822] Because the evidence regarding defendant's intent in shooting the victim was ambiguous, the trial court instructed the jury not only on the three crimes charged in the indictment, but also on aggravated manslaughter and reckless manslaughter. N.J.S.A. 2C:11-4a and -4b(1). The jury, however, found defendant guilty of the three indicted offenses: purposeful or knowing murder, felony murder, and possession of a firearm with the intent to use it unlawfully.

-II-

Defendant argues that his conviction for capital murder must be set aside in light of our decision in State v. Gerald, supra, 113 N.J. 40, 549 A.2d 792. We agree. The offense for which defendant was convicted, purposeful or knowing murder, includes both the intent to cause death or the intent to cause serious bodily injury. Id. at 83, 549 A.2d 792. In Gerald, we held that "a defendant who is convicted of purposely or knowingly causing 'serious bodily injury resulting in death' under N.J.S.A. 2C:11-3a(1) and (2), or either of them--as opposed to one who is convicted of purposely or knowingly causing death under those same provisions--may not be subjected to the death penalty." Id. at 69, 549 A.2d 792. Because the instructions in this case did not satisfy Gerald, we cannot determine whether the jury convicted defendant of purposely or knowingly causing death or purposely or knowingly causing serious bodily injury that resulted in death. Without that determination, defendant may not be convicted of capital murder.

Although this trial preceded Gerald, the court, to its credit, considered the constitutionality of imposing the death penalty on one who intended to cause only serious bodily injury. Specifically, the court noted our statement in State v. Ramseur, 106 N.J. 123, 194, 524 A.2d 188 (1987), that "while intent to do

Page 561

only serious bodily harm could not formerly support a first-degree murder charge, it may similarly be insufficient to support a capital sentence today because of the consitutionally required culpability standards regarding a capital defendant's intent to kill." Relying on the United States Supreme Court decision in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), however, the trial court concluded that it would be constitutional to impose the death penalty for purposeful...

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64 practice notes
  • State v. Purnell
    • United States
    • United States State Supreme Court (New Jersey)
    • January 15, 1992
    ...(1991); State v. McDougald, 120 N.J. 523, 577 A.2d 419 (1990); State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990); State v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990); State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988); State v. Bey Page 557 II, 112 N.J. 123, 548 A.2d 887 (1988); State ......
  • State v. Harvey
    • United States
    • New Jersey Supreme Court
    • July 30, 1997
    ...a reasonable doubt that the defendant intended to cause death." Mejia, supra, 141 N.J. at 489, 662 A.2d 308; see also State v. Pennington, 119 N.J. 547, 561, 575 A.2d 816 (1990) (characterizing rational-basis standard as a "low threshold"); State v. Pitts, 116 N.J. 580, 615, 562 A.2d 1320 (......
  • State v. Feaster
    • United States
    • United States State Supreme Court (New Jersey)
    • July 30, 1998
    ...summations and the penalty-phase opening argument, necessitates reversal of defendant's death sentence. See State v. Pennington, 119 N.J. 547, 611, 575 A.2d 816 (1990) (Handler, J., concurring and dissenting) (concluding assertions of future dangerousness, among other prosecutorial miscondu......
  • State v. Bey
    • United States
    • United States State Supreme Court (New Jersey)
    • July 28, 1992
    ...--- U.S. ----, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); State v. Clausell, 121 N.J. 298, 313-16, 580 A.2d 221 (1990); State v. Pennington, 119 N.J. 547, 560-65, 575 A.2d 816 (1990); State v. Long, 119 N.J. 439, 460-65, 575 A.2d 435 (1990); State v. Coyle, 119 N.J. 194, 208-12, 574 A.2d 951 (......
  • Request a trial to view additional results
64 cases
  • State v. Purnell
    • United States
    • United States State Supreme Court (New Jersey)
    • January 15, 1992
    ...(1991); State v. McDougald, 120 N.J. 523, 577 A.2d 419 (1990); State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990); State v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990); State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988); State v. Bey Page 557 II, 112 N.J. 123, 548 A.2d 887 (1988); State ......
  • State v. Harvey
    • United States
    • New Jersey Supreme Court
    • July 30, 1997
    ...a reasonable doubt that the defendant intended to cause death." Mejia, supra, 141 N.J. at 489, 662 A.2d 308; see also State v. Pennington, 119 N.J. 547, 561, 575 A.2d 816 (1990) (characterizing rational-basis standard as a "low threshold"); State v. Pitts, 116 N.J. 580, 615, 562 A.2d 1320 (......
  • State v. Feaster
    • United States
    • United States State Supreme Court (New Jersey)
    • July 30, 1998
    ...summations and the penalty-phase opening argument, necessitates reversal of defendant's death sentence. See State v. Pennington, 119 N.J. 547, 611, 575 A.2d 816 (1990) (Handler, J., concurring and dissenting) (concluding assertions of future dangerousness, among other prosecutorial miscondu......
  • State v. Bey
    • United States
    • United States State Supreme Court (New Jersey)
    • July 28, 1992
    ...--- U.S. ----, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); State v. Clausell, 121 N.J. 298, 313-16, 580 A.2d 221 (1990); State v. Pennington, 119 N.J. 547, 560-65, 575 A.2d 816 (1990); State v. Long, 119 N.J. 439, 460-65, 575 A.2d 435 (1990); State v. Coyle, 119 N.J. 194, 208-12, 574 A.2d 951 (......
  • Request a trial to view additional results

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