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State v. Fortin2/3/2004
to err in favor of removing a juror where there is evidence of potential partiality or bias, than to permit that juror to sit in judgment, leaving the fairness of a capital trial in doubt.
We, therefore, caution the trial courts that in any capital case in which a prospective juror is acquainted with the victim's loved ones, the most prudent course is to remove that juror to forestall both potential injustice and the appearance of injustice.
X. Jury Instruction on Future Dangerousness
At the penalty - phase charge conference, the trial court reviewed with counsel the instructions it intended to give the jury. Defense counsel specifically requested that the court instruct the jury on the model charge that directs the jury not to consider the defendant's future dangerousness in determining whether to impose a capital or non-capital penalty. Judges Bench Manual for Capital Causes, Appendix J-54 to -55. The court charged the jury in the very language endorsed by defense counsel:
If any of you find that the State has failed to prove beyond a reasonable doubt that the aggravating factor or factors outweigh the mitigating factor or factors, or if you cannot reach a unanimous verdict on the question of punishment, then the punishment shall be imprisonment for the defendant.... You must not speculate as to the precise sentence. This defendant might receive from me between 30 years and life. You must not speculate as to whether or not this defendant would or would not be released after 30 years. As far as you are concerned if you have not decided upon death for the defendant, you must then assume that his possible future release would not endanger society.
[(Emphasis added).]
Defendant now takes issue with the word "assume" and argues that the court should have given a more forceful instruction that future dangerousness was to be completely disregarded and given no consideration. Defendant contends that the trial court erroneously injected the concept of future dangerousness into the jury deliberations in violation of his federal due process rights and this State's capital jurisprudence. We find that this argument lacks merit.
The State may not argue to a jury that a reason to return a capital verdict is the threat defendant's future release will pose to the public if he were to be sentenced to a term of imprisonment. State v. Loftin, 146 N.J. 295, 371 (1996) (Loftin I); State v. Rose, supra, 112 N.J. at 521. A defendant's future dangerousness is not a statutory aggravating factor and must play no part in a jury's deliberations. Loftin I, supra, 146 N.J. at 371; see N.J.S.A. 2C:11-3c(4)(a)-( l ) (listing aggravating factors). The trial court's penalty-phase instructions correctly informed the jury of the possible sentences that defendant faced were it to return a verdict other than death. See Loftin I, supra, 146 N.J. at 370 (requiring that capital sentencing jury be fully informed of full range of sentencing options). While describing the minimum thirty-year period of parole ineligibility of a non-capital sentence, the court advised the jury that it "must then assume that [the defendant's] possible future release would not endanger society." Although there would have been no harm in including in the charge the additional language defendant now suggests, to the effect that the defendant's future dangerousness is not to be discussed or given any consideration in the jury's deliberations, defendant made no such request. The court properly charged the jury on the law, admonishing the jury not to take future dangerousness into account. Defense counsel approved that instruction. We do not find that the court's instruction prompted the jury t
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