State v. BassState v. Bass
Defendants moved to dismiss this indictment, charging a capital offense, by asserting that N.J.S.A. 2C:11-3 is unconstitutional. They also attack the constitutionality of N.J.S.A. 2C:11-3(c)(4)(c) which the State claims to be the aggravating factor justifying imposition of the death penalty in this case. Notice that the State would endeavor to prove that factor was given at the arraignment. See R. 3:13-4. As a result the court granted defendants’ request for a bill of particulars in preparation for trial and in anticipation of a challenge to the application of N.J.S.A. 2C:11-3(c)(4)(c).1 However, the court has reserved
At argument on the motions, defendants tacitly agreed that an unconstitutional provision relating to the penalty or aggravating factor involved in this case could undoubtedly be severed, see State v. Funicello, 60 N.J. 60, 67 (1972);
To be successful on this motion, based on federal grounds, defendants must convince this court that the plurality in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), was in error when it said that “In Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct. 2909, [(1976),] the Court held that this statutory aggravating circumstance (§ (b)(7)) is not unconstitutional on its face.” 446 U.S., at 422, 100 S.Ct., at 1762 (emphasis added). See Gregg v. Georgia, supra, 428 U.S., at 199-204, 96 S.Ct., at 2937-2939 (opinion of Justices Stewart, Powell and Stevens), and concurring opinions.
“It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.” 428 U.S., at 201, 96 S.Ct., at 2938.
Four years later, in Godfrey, the issue was whether the Georgia Supreme Court “had adopted such a broad and vague construction of the § (b)(7) aggravating circumstance as to violate the Eighth and Fourteenth Amendments ...” 446 U.S., at 423, 100 S.Ct., at 1762. In holding that the Georgia Supreme Court did not apply a constitutional construction of the aggravating factor, 446 U.S., at 432, 100 S.Ct., at 1766, the plurality made clear that the statute could have been interpreted to permit non-arbitrary application “based on reason rather than caprice or emotion“, 446 U.S., at 433, 100 S.Ct., at 1767. In Godfrey, the Georgia Supreme Court did not construe or limit section (b)(7) as it had in prior cases. But Godfrey is more than a disproportionality opinion. The United States Supreme Court addressed more than arbitrariness. The court seemingly approved section (b)(7) as previously construed by the state courts which subsequently
Godfrey therefore makes clear that the three prong test, previously adopted in Georgia under section (b)(7), is constitutional. The test requires (1) evidence of torture, depravity of mind or an aggravated battery to the victim; (2) depravity of mind is the mental state which leads to torture or aggravated battery before the victim is killed, and (3) “torture and aggravated battery must be construed together, imposing a requirement for evidence that the victim was seriously physically abused prior to death.” See 446 U.S., at 431, 100 S.Ct., at 1766; “Note, Criminal Procedure: Godfrey v. Georgia and the `Especially Heinous, Atrocious or Cruel Murder‘“, 34 Okla.Law Rev. 337, 341 (1981). So construed,
Defendants also claim that even if Godfrey upheld Georgia (b)(7) on Eighth Amendment grounds, it did not address Fourteenth Amendment due process concerns based on “overbreadth” or “vagueness“.4 They contend that the general public is not given adequate “notice” of the aggravating factor. The factor, of course, is not an element of the offense. It applies only upon a verdict or guilty plea to the underlying knowing or purposeful murder.5 Independently, assuming that defendants can assert a Fourteenth Amendment challenge, I find that the aggravating factor provides notice to a reasonably intelligent person and that defendants’ vagueness challenge must fail. See, Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); State v. Profaci 56 N.J. 346, 349 (1970); Town Tobacconist v. Kimmelman, 186 N.J. Super. 449 (App.Div. 1982). See also Lockett v. Ohio, 438 U.S. 586, 597, 98 S.Ct. 2954, 2961, 57 L.Ed.2d 973, 984 (1978).
The motion is denied.
On Further Death Penalty Challenges
STERN, J.S.C.
Defendants move to dismiss this indictment, asserting that
This opinion disposes of the facial challenges to
An analysis of the United States Supreme Court opinions treating the death penalty reveals the following:
1. Under federal law the death penalty is not per se unconstitutional. E.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
2. The death penalty cannot be mandatorily imposed following conviction for murder. See Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (Roberts I); Woodson v. North Carolina 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).
3. Any mitigating factor must be considered. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. [586], 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977) (Roberts II); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Gregg v. Georgia, supra.
4. Aggravating factors must be specified in the statute. See Gregg v. Georgia, supra; Jurek v. Texas, supra; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).
5. A court cannot prevent a finding of a lesser included offense where it is factually justified. See Hopper v. Evans, 454 U.S. 1136, [102 S.Ct. 991, 71 L.Ed.2d 288] (1982); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Roberts v. Louisiana I, supra.
6. Aiders and abettors and cofelons in felony-murder cannot be found guilty as a principal and sentenced to death, unless they have actual intent to kill. See Enmund v. Florida, ___ U.S. ___, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Jurek v. Texas, supra.
7. There is a requirement for adequate appellate review to assure against excessiveness and disproportionality. See Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Roberts v. Louisiana (I), all supra.
A review of
Defendants assert many reasons in support of their contention that
This written opinion is designed to dispose of the principal challenges to the penalty and the procedures incorporated into
1. Defendants claim that the number and scope of the aggravating factors embodied in
2. Defendants assert that the statute is unconstitutional because it does not provide that the jury can recommend mercy or punishment other than death, despite the proofs. It is true that under the Georgia statutory complex, referred to in Gregg, “the jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court.” Gregg v. Georgia, supra, 428 U.S. at 196-199, 96 S.Ct. at 2936-2937. However, even if this was construed as a constitutional requirement, the construction could be given without statutory language to that effect. Moreover, it appears that statutes without such a provision have been upheld. See Adams v. Texas, 448 U.S. 38, 41, 100 S.Ct. 2521, 2524, 65 L.Ed.2d 581, 587 (1980) (footnote 1); Proffitt v. Florida and Jurek v. Texas, both supra.
3. Defendants insist that
The jury, or if there is no jury, the court shall return a special verdict setting forth in writing the existence or non-existence of each of the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection. If any aggravating factor is found to exist, the verdict shall also state whether it is or is not outweighed by any one or more mitigating factors.
If “any aggravating factor exists and is not outweighed by one or more mitigating factors, the court shall sentence the defendant to death.”
While the United States Supreme Court has provided that death cannot automatically be imposed as a result of a conviction for murder, see e.g., Woodson v. North Carolina and Roberts v. Louisiana (I), both supra, it has also made clear that all mitigating factors must be considered before the ultimate penalty can be imposed. See Eddings v. Oklahoma, Lockett v. Ohio, and Roberts v. Louisiana (II), all supra. But the court has not held that once a defendant has been convicted of purposeful or knowing murder and, in addition the State has proven one or more specific aggravating factors, defendant may not be required to show why he should not die.
A statutory scheme essentially similar to ours requiring the imposition of the death penalty upon a finding that the aggravating factors are not outweighed by the mitigating factors was found to be constitutional on its face. Proffitt v. Florida, supra, 428 U.S. at 249-251, 96 S.Ct. at 2965-2966. In Florida the defendant must present evidence directed to the jury‘s consideration of “whether sufficient mitigating circumstances exist ... which outweigh the aggravating circumstances found to exist....”
Under our statute a defendant is required to produce evidence of mitigating factors. Technically, there is a difference between requiring a defendant to produce evidence of mitigating factors (and perhaps even that the mitigating factors outweigh the aggravating factors) and requiring him to sustain a burden of proof in that regard. The statute does not place a “burden of proof” on a defendant. It only requires defendant to produce evidence of the mitigating factors. See also
In the penalty phase we are concerned with a defendant already convicted of purposeful or knowing murder by his own conduct or procured by him. The culpability has been established. If a requirement of culpability exists with respect to any aggravating factor, the due process requirement is satisfied because the burden remains on the State to prove beyond a reasonable doubt the existence of the aggravating factor. Moreover, the mitigating factors are not elements of the offense and do not concern the culpability of the defendant. Therefore,
In any event, our statute on its face addresses a defendant‘s burden of producing evidence and does not expressly provide for any burden of proof. Hence, any constitutional and statutory questions regarding the burden of proof with respect to the balancing process can be considered in advance of the charge and need not be addressed definitively at this time.
4. Defendants assert under New Jersey law that the scope of review of a sentence is inadequate to determine arbitrariness, excessiveness and disproportionality of punishment.
Every judgment of conviction which results in a sentence of death under this section may be appealed, pursuant to the rules of court, to the Supreme Court, which shall also determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering the crime and the defendant.” [
N.J.S.A. 2C:11-3(e) ].
Our Supreme Court undoubtedly is familiar with the United States Supreme Court opinions concerning review of the death penalty. See, e.g., Gregg v. Georgia, Proffitt v. Florida and Roberts v. Louisiana (I) all supra. It must be presumed that our Supreme Court will respect the statute and those cases relating to review of death penalty proceedings. See R. 2:2-2. See also N.J.S.A. Const. (1947) Art. VI, § V ¶ 1(c). The statute therefore cannot be challenged on this ground.
Finally, defendants attack
It must be emphasized that our Supreme Court upheld the death penalty in New Jersey as recently as 1968, State v. Forcella, 52 N.J. 263 (1968) rev. sub nom., Funicello v. New Jersey, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971), and struck the penalty only because of federal constitutional requirements, State v. Funicello, supra. Our Supreme Court has therefore upheld the constitutionality of the death penalty in this State and has never expressly or by implication deemed it per se unconstitutional or “cruel and unusual punishment.” Its decision in Funicello was on Fifth or Sixth Amendment federal grounds, compelled by the United States Supreme Court. See 60 N.J. at 67.
Of course, the particular statute under attack must be reviewed, but to the extent the defendants claim that the death penalty must be considered per se unconstitutional or “excessive” or “cruel and unusual” the argument must be rejected under our State Constitution. Cf., State v. Funicello and State v. Forcella, both supra.
Nothing is suggested to persuade this court that the organic holdings of our Supreme Court related to the penalty itself do not control this case. To the contrary, even if contemporary considerations of fundamental justice and fairness may be considered, it appears that the public will is evidenced by the recent legislative action restoring the death penalty. Cf. State v. Des Marets, 92 N.J. 62 (1983). Insofar as the substantive and procedural aspects of this statutory complex are concerned, there is no real justification offered to interpret N.J. Const. (1947) Art. I, par. 12 differently from the Eighth Amendment to the federal constitution. A review of State v. Forcella, supra, indicates the historical basis and public policy of this State as of 1968. The public policy has been updated in chapter 111 of the
As to the question whether the death penalty serves a useful end, and its morality and fairness, these are matters which rest solely with the legislative branch of government. [52 N.J., at 293].
Even assuming the jurisdiction to reject this thesis, there is no sound reason to do so. There is no policy reason justifying divergent interpretations of state and federal law concerning capital punishment. This is particularly true as our Supreme Court has consistently upheld it against various constitutional challenges, including Eighth Amendment claims of “cruel and unusual punishment“. State v. Doss, 60 N.J. 32, 35 (1972); State v. Forcella, supra.
The motions are denied.