State v. Zola

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: O'HERN; HANDLER
• Citation: 548 A.2d 1022,112 N.J. 384
• Decision Date: 07 October 1988
• Parties: , 57 USLW 2162 STATE of New Jersey, Plaintiff-Respondent, v. James E. ZOLA, Defendant-Appellant.

Page 384

112 N.J. 384 548 A.2d 1022, 57 USLW 2162 STATE of New Jersey, Plaintiff-Respondent,
v.
James E. ZOLA, Defendant-Appellant. Supreme Court of New Jersey. Argued Feb. 16, 1988.
Decided Aug. 16, 1988.
As Amended Oct. 7, 1988.

[548 A.2d 1025]

Page 390

Claudia Van Wyk and Paul M. Klein, Asst. Deputy Public Defenders, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney).

Mildred Vallerini Spiller, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Atty. Gen. of New Jersey, attorney).

The opinion of the Court was delivered by

O'HERN, J.

This is a pre-Ramseur/Biegenwald capital case in which the defendant was sentenced to death. In State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), appeal after remand, 110 N.J. 521, 542 A.2d 442 (1988), and State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), we determined the constitutionality of New Jersey's capital punishment act, N.J.S.A. 2C:11-3, and established standards for its application. In this case, tried before those decisions, the jury charge failed to comply with the Biegenwald requirement that to impose the death penalty the jury must be convinced beyond a reasonable doubt that the statutory aggravating factors of N.J.S.A.

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2C:11-3 outweigh the mitigating factors. The charge here would have permitted imposition of capital punishment on a finding that the aggravating and mitigating factors balanced. Therefore, the State agrees that a retrial of the penalty phase is required.

Our review, then, is limited to the guilt phase errors claimed by defendant. We find none that tainted the trial; we thus affirm the conviction of murder. We also affirm the related charges.

I

This case arises from the particularly abhorrent killing of a frail 75-year-old widow who lived in a garden apartment complex where the defendant had been a caretaker. A neighbor saw the victim, Barbara Berrisford, return to her apartment from a hairdresser appointment on the morning of Thursday, January 13, 1983. Mrs. Berrisford's last known telephone conversation took place with her sister at 6:30 that evening; her sister later noted that Mrs. Berrisford had not sounded like herself and that her telephone had been hung up abruptly. Mrs. Berrisford did not attend her regular social meetings that Thursday afternoon and that Friday. The newspapers from January 14 to 17 piled up outside the [548 A.2d 1026] apartment door; Mrs. Berrisford did not answer the door to pay the carrier.

On the morning of Monday, January 17, 1983, a worried neighbor had the superintendent of the complex enter the apartment. Mrs. Berrisford's body was found spread-eagled on her bed, clothed only in a girdle and wrapped in a sheet. Leather thongs had been tied to the victim's left wrist and right ankle; her right arm and left leg were found close to thongs attached to the corresponding corners of the bed. She had been wounded in the throat, in the left temple, and in the nose; her face had bled profusely; her throat and neck had been bruised.

Sixty percent of the victim's body was missing skin and showed signs of scalding; several pieces of the victim's skin

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were found in the room. No sign of trauma to the victim's sexual organs was detected, nor was semen found in the victim's body. The County Medical Examiner ascribed her death to asphyxiation, which was later identified as the result of manual strangulation; the time of death was estimated to be late on Thursday, January 13. The victim's purse was missing and was never recovered.

An anonymous tip and a check of fingerprints and palm prints recovered at the crime scene led police to James Zola, a former maintenance man in the apartment complex. While employed by the complex, Zola's poor attempt to install Mrs. Berrisford's kitchen sink had led her to complain to his superior; Zola had later been fired, perhaps in part because of this complaint, along with other deficiencies in work habits.

The police arrested Zola at his mother's house on January 24, 1983. Pursuant to a search warrant, they found underwear and cigarettes that matched those recovered at the crime scene. They also found a pair of blue jeans that bore cat hairs comparable to those recovered from the underwear at the crime scene; these hairs were later found to match hair samples taken from the cat owned by defendant's female companion. The State's case was reinforced by evidence that Zola's own hairs matched those found at the crime scene on a bath mat, on a woman's blazer, on the thongs, and on the underwear. A neighbor of the victim recalled that on the morning of January 13 he had seen defendant peering from behind the door of an apartment near the victim's. The young woman who was living with defendant testified that he had been absent on the afternoon and evening of Thursday, January 13th, but that he had called her, and subsequently had returned home, in the early morning of Friday the 14th.

Defendant did not testify at trial, but through the testimony of a psychiatrist and a psychologist introduced his account of the killing: according to defendant, he had paranoically imagined, while under the influence of alcohol and drugs, that he was being pursued by police and police dogs. After taking

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refuge in the basement of the apartment complex, defendant had broken into Mrs. Berrisford's empty apartment. His version was that when she returned he had grabbed her and asked her where the police were. To prevent Mrs. Berrisford from signaling the police, defendant tied her up and hit her head. Fearing that he had inflicted a fatal wound, defendant said that he had unsuccessfully attempted to revive Mrs. Berrisford, first by trying to give her food and drink, then by taking her clothes off and putting her in the shower. He said he went to check the door, leaving his victim in the bathtub with scalding water running; panicked by Mrs. Berrisford's condition when he lifted her out of the bathtub, he had put her on the bed to cover her up, and then had walked home in a daze and gone to sleep.

The jury found James Zola guilty of all counts charged: knowing and purposeful murder, burglary, aggravated sexual assault, kidnapping, and robbery. At the penalty phase, the State introduced certain photographs of the crime scene and relied on the other trial proofs to establish two aggravating factors: c(4)(g), that the murder was committed during a felony; and c(4)(c), that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, [548 A.2d 1027] or an aggravated assault to the victim. The defense sought to establish four mitigating factors: c(5)(a), that the defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution; c(5)(c), that the defendant was young (twenty-four years old) at the time of the murder; c(5)(d), that the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired as a result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to the prosecution; and c(5)(h), general factors relevant to the defendant's character or record or to the circumstances of the offense.

Defendant relied on the guilt phase testimony of defense experts who had described his broken home and troubled past:

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as a youth defendant had been emotionally disturbed and addicted to drugs, and had been sexually abused several times. Defendant's son had died in 1981, possibly because of the drug addiction of defendant's then-wife. A psychiatric social worker whose testimony had been excluded as inexpert during the guilt phase corroborated this account from her own interviews with defendant and from her review of his state records. Defendant's father testified on his behalf, but defendant's mother became upset and left the courtroom. In addition, two clergymen who had visited defendant regularly since his arrest agreed that his turning to religion while incarcerated indicated his good potential for rehabilitation.

The trial court instructed the jury that in order to weigh a mitigating factor it must agree unanimously that the mitigating factor existed; the jury was also informed that a death sentence would result unless it determined that any mitigating factors it found outweighed aggravating factors. The jury found the emotional disturbance and catch-all mitigating factors and the two aggravating factors charged. It determined that the former did not outweigh the latter. Defendant was sentenced to death. He appeals to us under Rule 2:2-1(a)(3).

Defendant has raised various constitutional challenges to his conviction. Issues similar to those raised in Ramseur and Biegenwald will not be discussed extensively here, but will be noted for completeness of the record and preserved by discussion, infra at 1050. We here discuss the challenges specific to his trial.

II

Pretrial errors claimed.

A.

Did the refusal to permit attorney-conducted voir dire violate defendant's constitutional right to a fair trial or otherwise restrict his opportunity to exercise challenges for cause or peremptorily?

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Voir dire is a shorthand expression for the questioning of a pool of potential jury members to select impartial jurors to hear a case. The first aspect of defendant's challenge to this process was resolved by our decision in State v. Biegenwald, supra, 106 N.J. at 26-30, 524 A.2d 130. We there held applicable to capital cases the rule of State v. Manley, 54 N.J. 259, 255 A.2d 193 (1969), as well as Rule 1:8-3(a), which states that for the purpose of determining whether challenge should be interposed, "the court shall interrogate" the prospective jurors. See also State v. Howard, 192 N.J.Super. 571, 471 A.2d 796 (App.Div.1983) (attorney-conducted voir dire is not in itself part of the constitutional...