State v. Bey

responsive imperative error that is to the present fairness appeals. should, all murder urge, It I rigorous be a recognize standard that will exacting protection need for against protection errors and the utmost against constitutional error because a life is in the balance.

For expressed, join the reasons I in the determination of the Court to reverse defendant’s conviction and sentence.

For reversal and WILENTZ, remandment —Chief Justice CLIFFORD, HANDLER, and Justices POLLOCK, O’HERN, GIRIBALDI and STEIN—7.

For affirmance —None. JERSEY, PLAINTIFF-RESPONDENT,

STATE OF NEW (II), BEY MARKO DEFENDANT-APPELLANT.

Argued May August 2, 1987 Decided 1988. Borman, Defender, Judith L. Deputy Assistant Public Jr., Smith, Deputy Defender, argued James K. Public appellant (.Alfred Slocum, Defender, cause for A. Public attor- Borman, ney, Smith, Jr., DeJulio, Judith L. James K. Lois A. Defender, Deputy Astore, First Assistant Public Matthew Defenders, Wyk, Deputy Claudia Van Assistant Public on the brief). Prosecutor, Kenney, argued

Alton D. Assistant the cause for respondent Kaye, Prosecutor, County A. Monmouth {John at- torney, Kennedy, James W. and Mark P. Stalford, Assistant Prosecutors, counsel). of Pasternak, General,

Steven Deputy Attorney argued the curiae, Attorney cause for amicus Jersey (W. General of New Edwards, Cary General, Attorney attorney, Hindman, Jay General, Deputy Attorney counsel, Pasternak, Jay Steven Moczula, Hindman, General, and Deputy Attorney Boris on briefs). the opinion

The the Court was delivered POLLOCK, J. capital

Defendant was convicted of murder and sentenced appealed right, 2:2-1(a)(3), death. He challenging R. both guilt sentencing proceedings. and We find no reversible proceedings leading error in the to the verdict that defendant light committed murder and related offenses. of recent decision of the United in Supreme States Court v.Mills — -, Maryland, US. S.Ct. 100 L.Ed.2d 384 (1988),however, find charge we that the trial court erred in its penalty phase by at the requiring that the be unanimous in reasons, we For this other finding mitigating factors. and death and remand imposition reverse sentencing proceeding. a new to the Law Division for matter I 26, 1983, left p.m., 9:20 Carol Peniston April On around School, computer High she attended a where had Neptune Peniston, course, away in Ford Ms. her Granada. drove alone, her returned to living neither who was divorced day. apartment reported nor to work the next husband, in later, a lieutenant May on her former A week a letter from the Department, received Neptune Police to “Mr. Carol Peniston.” Department Police addressed Newark Ms. had been involved letter advised that Peniston’s car The and that the car had been preceding an week accident Police Neptune informed the impounded. Lieutenant Peniston turn, which, Asbury Park Police notified the Department, car investigation Subsequent revealed.that Department. 1:46 a.m. collision in Newark at involved in a one-car had been 26, 1983, Peniston four hours after Ms. April approximately on fingerprints were Neptune High School. defendant’s left on rear mirror. view May 3, Asbury police p.m. on Park approximately 3:30

At Robot, pock- Ms. Peniston’s had found Attilio who interviewed Shortly building Asbury Park. near an old industrial etbook the thereafter, body her in a shed near police the discovered 4,May following day, performed the building. autopsy An days. had been dead several that Ms. Peniston disclosed beaten, sexual- she had been autopsy disclosed that The further on her assaulted, strangled. imprint a ly From sneaker and hemorrhaging of and from fractured ribs chest and evidence heart, column, lung, right and atrium of the the vertebral examiner, Becker, County medical Stanley the Monmouth Dr. her stomped on assailant had that Ms. Peniston’s concluded death, cause of ultimate Dr. Becker determined chest. however, ligature strangulation. Subsequent police was inves- tigation spermatozoa revealed that characteristics of on found coat were with victim’s consistent those defendant’s saliva, imprint and that defendant’s sneakers made an that was impression to the on similar the victim’s chest. 6,May Asbury

On Detective Musiello of the Park Police Department signed complaint against charging defendant him receiving property, stolen with Ms. Peniston’s Ford Granada. day, p.m., Later that at approximately 5:15 five law enforce- Park, Neptune, Asbury ment from officials and the Monmouth County Prosecutor’s Office arrested defendant at his home Neptune. They handcuffed defendant him and took to the Asbury police headquarters, Park approximately and at 5:35 placed him in p.m. custody of Detective and Musiello Investigator George County Monmouth Prosecutor’s Office. placed police was in an headquarters

Defendant office at complaint. given copy Detective Musiello read to card, warning defendant a signed Miranda and defendant an acknowledgment on indicating the reverse side he had been rights. advised of those When if asked he wished to see anyone, interrogated defendant declined. He then concern- ing automobile, possession during of the victim’s which interrogation gave conflicting he accounts of his The activities. asserts, denies, but defendant that he was asked at 6:00 p.m. whether he something go wanted to drink p.m., request, bathroom. About 6:30 at his defendant was soda, given drinking a soda. While he was defendant say going stated: “No matter I charged what I’m with offense,” referred, State, according this a statement that to the charge. interrogation automobile theft The continued p.m., given until 7:15 when dinner. defendant was to eat time questioning twenty p.m., resumed minutes later at 7:35 p.m., lasted until 8:20 when defendant went to the bathroom cigarettes given and was and a soda. On defendant’s return to room, interrogation Investigator George, defendant and officer, for five minutes. Defend- interrogating sat silence crying. during may time he have been ant this asserts later, p.m., at 8:30 court found that five minutes trial think lie down so that he could said he wanted to defendant happened. expressly did not state that Defendant about what Although support questioning end. the brief in should suppress request his to lie stated that defendant’s motion silent, of his to remain down an invocation constituted hearing. urge point at the Miranda In did not defendant police it hearing defendant testified that was fact at that lie who whether defendant wanted to down. asked event, placed Asbury in the Park In was any defendant he returned to the jail for about one hour. When municipal given approximately p.m., 9:30 he was not a bureau at detective if warnings, but was asked he wished to new set of Miranda Questioning communicate resumed anyone. with He declined. p.m., when defendant confessed and continued until about 10:05 later, Approximately fifty minutes defendant to the crime. gave rights, He then again which he waived. read Miranda statement, in that he accosted Ms. which he admitted written building demanded apartment her and Peniston front of that when he heard money from her. The statement continued her to shed. coming, grabbed he her and led someone Peniston, events, sexually repeatedly struck Ms. ensuing he her, eight keys as car dollars as well assaulted and took car, Newark in her way While on his pocketbook. from her graveyard, and alongside an iron fence he collided with abandoned car.

II GUILT PHASE murder, contrary was indicted for July On defendant murder, 2C:11-3a(1) (2); felony contrary to N.J. N.J.S.A. 2C:13-1b(1) 2C:11-3a(3); contrary kidnapping, to N.J.S.A. S.A. 1b(1); assault, (2); contrary aggravated to N.J.S.A. 2C:12 — assault, aggravated 2C:14-2a(3) contrary sexual to N.J.S.A. and (6); 2C:15-1a(1), (2) robbery, contrary (3); to N.J.S.A. and and theft, contrary to N.J.S.A. 2C:20-3a. response, motions,

In pre-trial defendant made numerous including suppress an unsuccessful one to his oral and written during interrogation statements obtained the custodial on the night of the arrest. He the contends that confessions are knowingly inadmissible he did intelligently because not and rights, waive his Miranda that the confessions were not volun- police tary, and that failed scrupulously the to honor his interrogation. to end the disagree. We A. Defendant’s Confession suppression

As a result of the the hearing, trial court found properly defendant was advised and understood his “Mi- rights,” voluntarily randa that defendant rights, waived those court, the signed however, that he waiver card. The did expressly request whether find defendant’s to lie down constituted request questioning. a terminate At the conclu- hearing, sion of the the court ruled that oral and written agree. confessions were admissible. We valid, To “voluntarily, a must knowingly, waiver be made and intelligently.” Arizona, 436, 444, 384 Miranda v. U.S. 86 1602, 1612, 694, (1966). S.Ct. 16 L.Ed.2d 707 The state bears 475, 1628, proof. burden of Id. at 86 S.Ct. 16 L.Ed.2d at 724. Although United Supreme States Court has held that the state prove admissibility must confession only a a preponderance evidence, v. Connelly, Colorado 479 U.S. 157, 168, 515, 523, 473, (1986), S.Ct. L.Ed.2d this Court has held prove admissibility beyond State must doubt, Miller, (1978). reasonable v. 76 N.J. 404-05 Here, persuaded beyond we are a reasonable doubt that the State has met its burden. determining

In confession, voluntariness of courts accused, consider the characteristics of the as well as the Bustamante, interrogation. details Schneckloth 2041, 2047, (1973). 36 L.Ed.2d 93 S.Ct. US. education, age, include the defendant’s intelli- Relevant factors concerning rights, length of his constitutional gence, advice detention, questioning specifically, the nature of the — prolonged and questioning repeated and whether physical punishment it or mental exhaustion. involved whether Miller, Id.; supra, at 402. 76 N.J. State v. case, age present defendant attained interrogation. Although young, before the

eighteen two weeks delinquency, which included he had an extensive record of assault, robbery, the and sexual contact. On convictions for arrest, custody police at his he was in station for night of interrogated he Altogether nine hours. was approximately During hours five minutes he confessed. that three and before food, time, cigarettes, beverages, oppor he and was offered any physical no of tunity to rest. The record reveals evidence rights his mental Defendant was advised of twice coercion. interrogation, of the declined to avail during course and attorney or anyone to with himself of the offer communicate an circumstances, trial we conclude that the else. Under these voluntarily gave oral his correctly court found defendant and written statements. “scrupulously argues police to that the failed

Defendant also right questioning, in his of the to terminate honor” invocation 96, 103-04, 423 96 Ct. Michigan Mosley, v. U.S. S. violation 313, (1975), 321, 326, Hartley, and 103 46 321 v. L.Ed.2d State lie and (1986). request that his down 252 He claims right his happened” an “think was invocation about what “scrupulously questioning, police and that the failed to cut off interrogation reissuing resuming without right by honor” his Although warning of rest. after his one hour the Miranda support his this in the brief in defendant issue alluded point press at the suppress, his counsel did motion Instead, hearing hearing. at defendant claimed Miranda confession, youth fatigue, because was involuntarily. extracted He testified that he did not ask for anything during interrogation police headquarters at question that “the he wanted to lie asked was [whether down] request me.” We find that the did not constitute an invocation and, therefore, right police to remain silent that the did right. not violate that Miranda, Supreme the United States Court held that

interrogation must cease if the defendant indicates that he 473-74, 1627, wishes to remain silent. 384 U.S. at at S.Ct. open 16 L.Ed.2d at 723. The Court left the issue “under what circumstances, if any, may interroga- the authorities resume tion” after the defendant asserts the to remain silent. Hartley, supra, v. Subsequently, N.J. at 263. Michigan Mosley, supra, 423 U.S. at at S. Ct. L.Ed.2d at admissibility Court held that “the of state- person ments obtained after the in custody has decided to * * * depends remain silent ‘right on whether his to cut off ” questioning’ ‘scrupulously regard, honored.’ In this warnings given Miranda Court held that have been “[o]nce * * * * * * any the individual indicates in manner that he [i]f silent, wishes to remain interrogation must cease.” 384 473-74, U.S. at Similarly, S.Ct. 16 L.Ed.2d at 723. we have stated: arguably makes a statement which amounts to an assertion of [W]here suspect rights his Miranda interrogating agent recognizes and the the statement questioning regard is of that his construction, with to the crime he susceptible investigating should cease and he should then of the immediately inquire Wright, as to the correct v. suspect statement. 97 interpretation State (1984) (quoting Riggs, United States v. 537 F.2A 120 n. 4 113, 1222 1219, (4th Cir.1976)).]

Any reasonably appear words or conduct that to be inconsist- ent willingness with defendant’s to discuss his case with the police are tantamount to an privilege against invocation of the officials, however, self-incrimination. Law enforcement are not obliged accept conduct, to any words or no ambigu- matter how ous, suspect as a conclusive indication that a desires to termi-

137 112, 222 LaChappell, Neb. 382 questioning. nate State v. 343, (1986) (statement polygraph] test 348 N .W.2d “[the “ambiguous,” and trial court resolved over” at best was was defendant); State, ambiguity against see also Nashoalook v. 975, (Alaska (“ambiguous equivocal App.1983) 978 663 P.2d warnings responses following do not suffice to consti Miranda right accused of his constitutional tute an assertion Hicks, 64, 267, (1982) silence”); 649 277 v. 133 Ariz. P.2d State (defendant’s response rambling statement to detective’s interrogation willing he was to end showed that statement that right questioning); not exercised his to terminate defendant had 864, (when State, (Tex.App.1986) 873 v. 715 S. W.2d Watson remaining silent when made oral statement after defendant times, prior warnings administered four his were Miranda rights). of his sufficiently indicate an invocation silence did or conduct do not indicate When the defendant’s statement silence, right that statement or conduct invoking he is See, right. e.g., Taylor an invocation of the does not constitute 133, Cir.1977) (4th (sustaining court Riddle, trial 563 F.2d v. 137 statement, “[y]ou’ve done asked me finding that defendant’s answer,” right invocation of the question I can’t was not an 1020, 744, denied, 54 silent), 98 cert. 434 U.S. S.Ct. remain (1978); LaChappell, supra, 382 N. W.2d v. L.Ed.2d statement, (trial that the defendant’s properly court found over,” right to cut not an invocation of the “the test was 465, Robbins, 319 N.C. S.E.2d questioning); off State v. statement, I (1987)(defendant’s you everything “I told questioning know,” of his desire that all was not an indication (1983) Fincher, cease); 309 N.C. S.E.2d State v. when remain silent (defendant have invoked held not to after his statement until give a second written he refused to truth, after an agreed to answer but co-defendant told question.”). But see ask “another asked if he could officer (5th n. 9 Hernandez, 1368 & 574 F. 2d United States van, arrested, police in a Cir.1978) (defendant placed who was in the by two officers interrogated or four times three 138 other,

presence right of each to remain invoked silent when repeatedly cooperate he refused attempts with to elicit statements); incriminating Nicholas, People v. 112 Cal.App.3d 249, 268, 497, (1980)(when 169 Cal.Rptr. defendant said he did not want to discuss matter but three officers repeatedly questioned will,” him to request “wear down his defendant’s tape turn off recorder for privacy assurances of constituted an rights); Williams, invocation of People 40, 62, 93 Cal.App.3d 414, (1979) (defendant’s Cal.Rptr. statement that he was confused and did not say know what to do or was an right silent); invocation of the to remain State, 21 Law v. Md.App. (1974) (wounded 318 A.2d defendant’s statement while handcuffed to being a bed and treated at hospital that any he did not want to talk more until he was further treated constituted an invocation of right to cut off questioning); State, Phillips v. (Tex.Crim.App. S.W.2d 875 1985), denied, 909, 106 cert. 477 U.S. S.Ct. 91 L.Ed.2d 574 (1986) (in affirming murder, conviction for court found defend ant’s statement that he “wanted a little time to think about the matter” to be an right silent, invocation of the to remain but that the State had scrupulously right); honored that State v. Rissler, (1980) (statement W.Va. 270 S.E . 2d 778 give you now, “if I shot,” statement I won’t have no which interrogating officer understood to be a statement that defend probably ant did not statement, want to make a was an invoca rights). case, tion of present question thus becomes whether request defendant’s to lie down and think about what happened constituted an invocation of his to terminate questioning.

Defendant merely spend communicated his desire to some thinking time about the events subject that were the interrogation. He did attorney not ask for an sign or refuse to rights. a waiver of his Similarly, he did not refuse to continue the questioning, did any not indicate in manner that he interrogation. wanted to end the every Not question- break in ing compels renewed administration of warnings. the Miranda Otherwise, police obliged would be to administer those warn- ings each time a defendant requested or something was offered drink, facilities, to eat or the use of toilet opportunity to stretch, or, here, stand and as time to lie down. position

Consistent with his suppression at the hearing, de- fendant testified: go About 8:30 did to Q. you down and think request about what had lay happened? Right. saying nothing,

A. I wasn’t and the was asked and I said question me, go I was taken to a but cell, was I yeah. asked me. did down. question lay thing But the was asked me. The I question asked for when I was in there only cigarettes. nothing nothing was the call and I didn’t ask phone for else, eat nothing. or no soda or legal posture Defendant’s factual and suppression at the hearing affects testimony both the of Detective Musiello and court, finding of the trial on which defendant now relief. Detective Musiello testified: Directing evening, attention to Q. about 8:30 or so that your can describe you

the circumstances of what happened? A. Yes. At the of Mr. he asked if he would be able to think request Bey, about it and down. We him told that we would him in the cell lay and come put bring back in an hour to him and him back in say an which we did. pick up hour, That was Mr. Q. down and think about it? Bey’s request, lay A. Yes. p.m. The court found that requested 8:30 the defendant “[a]t permission lay down happened. and to think about what He placed p.m. police a cell. At about 9:30 returned to the cell and the again defendant was asked if he wanted to anyone, replied contact and he negative.” Perhaps in the because defendant did not suppression hearing assert at the request right constituted an invocation of his to remain silent, specifically the trial court did not address that issue. Arguably, the trial court’s decision could be construed as find- ing right that defendant had not invoked the remain silent. requested The court found both that defendant had to lie down and that defendant’s voluntary. Implicit statement was findings those sought is the conclusion that defendant had not record, questioning. reading cessation of Our how-

ever, closer truth leads to believe we come to the us recognizing the trial court did not decide the issue because hearing. did not raise it at the the defendant establishing Although the State bears the burden of confession, beyond a doubt voluntariness of the reasonable (1967), at least Yough, v. 49 N.J. defendant must State court to claim that he invoked of silence the trial Johnson, adjudicate N.J.Super. claim. See granted 303-06 cert. (App.Div.), remanded summari (1987); ly, 108 N.J. 674 Wharton’s Criminal Procedure § (1975). Here, hearing did at the on the defendant not assert suppress his confession to the of Carol motion murder Peniston, conjunction held in motion to which was with a suppress Cheryl his confession the murder of Alston at the (I), (1988), trial of Bey outset State v. that right now forms basis for the attack on his confession. explains why explicit Defendant’s silence the trial court did not ly address If we had in the issue. believed defendant voked, silent, ambiguously right no how his matter to remain grant request we would hesitate to or to remand the not matter to the trial court. Defendant’s failure to assert his not, hearing dissenting suggests, opinion claim at the has as the failure, reviewing appeal. prevented us from that claim on His however, explains express finding by the absence of an the trial Notwithstanding court. to address issue at the failure level, trial defendant has raised the claim before us. After claim, reviewing wanting. we find it grown We record that cold are confronted with a has passage years. purpose served with Little would be date, obliged remand at this late and we are to decide the original jurisdiction. in matter the exercise of our R. 2:10-5. is, circumstances, record, Looking at as it all the cold supports beyond peradventure the conclusion that this defend cut off At questioning ant did intend to remain silent. station, questions police defendant did not refuse answer posture about the Peniston murder. His in regard stands sharp contrast to his later refusal to discuss the murder of Cheryl Investigator Alston. As George sup- testified at the pression hearing on defendant’s confession to the Alston mur- der, outset, at the defendant “indicated he did not want to talk I, to us Bey supra, (1988). about it.” 112 N.J. at 53 Defend- subsequent ant’s assertion of his right constitutional termi- questioning nate about another murder does not invalidate voluntary his earlier confession to the murder of Carol Peni- ston. respect murder,

With to the Peniston a remand at this late date would not illuminate the record any or serve other useful purpose. We are scrutinizing remitted to the record and re viewing light defendant’s statement surrounding cir scrutiny cumstances. That leads us to only conclude that some apart case, abstract sense from the facts of the see W. Israel, 6.9, LeFave & J. (1984), Criminal Procedure at 531 § could defendant’s statement be construed as an assertion of the right to police remain silent. The did not construe defendant’s request to lie down as silent, an assertion of his to remain perceive any we do not how police reasonable officer could have so request. construed that hearing Defendant’s Miranda place took years several after the Supreme United States Court ruled interrogating police that scrupulously officers should honor a right defendant’s assertion of his to silence. See Michigan 103-04, v. Mosley, supra, atU.S. at S. Ct. indicated, however, 45 L.Ed.2d at 321. As previously defendant hearing did not contend at his challenged that the statement right was a Instead, violation of his to remain silent. defendant seeking down, permission denied to lie and asserted instead that police it was the who asked him if he wished to “lie down and Ironically, think about it.” defendant’s testimony repudi own argument ates context, he now asserts before us. In this finding the trial court’s that the lay defendant asked “to down and think about it” was not so much the resolution of a materially disputed issue as it was a comment leading to the voluntary. Only was mis-

conclusion that confession reading colleagues that dissenting record can our conclude right asserting his to remain the defendant was silent. reasonably finding that defendant’s statement cannot rights, his we do construed as an invocation of constitutional pronouncement request, our prior not retreat from “a questioning ambiguous,’ terminate or to have coun- ‘however to present diligently Hartley, sel must be honored.” State v. supra, (quoting Kennedy, v. 97 N.J. 278 103 N.J. State (1984)). finding no than Our conclusion reaches further of this case did under the circumstances defendant’s statement right an of his to remain That not constitute invocation silent. how his counsel at the defendant and viewed issue hearing, we and it is how view the issue now. Miranda Focusing hearing, were at the on issues that raised trial found: defendant advised of court “This his Miranda warnings prior giving to the statement. That he understood his warnings. signed he Miranda That the Miranda card volun- * * * tarily voluntarily rights and that he waived his under record supports Miranda.” Substantial evidence findings court, the trial and we R. decline disturb them. 2:10-1; Johnson, (1964). Consequent- ly, properly we court found hold trial admissible evidence of defendant’s oral written confessions. dissenting colleague Our concludes that de- Justice Handler request fendant’s to lie down was tantamount the invocation against his constitutional self-incrimination under Mi- result randa. Post at 205-214. Justice Handler reaches that he would without reference the enhanced standard review find, however, apply cases. Post at 214. We record, conducting which even after a meticulous review standard, I, incorporates Bey Justice into his enhanced Handler 92-93, did not supra, 112 N.J. at that defendant invoke right to remain silent. reaching result, distinguish we defendant’s confession case, present admissible, which we find to be from his murder,

confession to the Alston which we have found to be attributable, inadmissible. The different results are not as the contends, dissent in Bey heightened I to a standard of review. Instead, the inadmissibility of defendant’s confession to the Alston murder follows from unambiguous his assertion to the law enforcement officials that “he did not want to talk to us * * about it That right assertion of his not to answer questions cry is a far from posture defendant’s when he con- fessed to the case, Peniston murder. In this he received two sets of warnings, Miranda and did not contend at the Miranda hearing that he had invoked his to remain silent. B. The Trial trial,

At produced witnesses, twelve who estab- generally lished the above-described facts. The defendant testi- guilt phase fied in the of the trial beginning approximately four and one-half hours before the incident and continuing until' shortly Peniston, before he first saw Carol he consumed one twenty hundred and liquor, rum, ounces of malt straight some and smoked a quantity marijuana. considerable Referring to itself, the incident Peniston, he killing admitted to Ms. but it, stated why he did not acknowledged know he did that it never should happened. have Defendant’s in-eourt admission amply fingerprints car, corroborated his in the victim’s print chest, of his sperm sneakers on the victim’s on her coat, and other explained evidence. He that he became scared looking when he saw Ms. Peniston at him as he through went pocketbook. her her, He struck and sexually assaulted did but stepping not recall on her chest. only thing he remem- face, bered was that once Ms. Peniston saw his “that’s when I her, hitting just far, started something it went too shouldn’t have went on.” The returned a verdict'convict- ing offenses, defendant including of all purposeful knowing murder felony murder.

C. Intoxication contends that the trial court committed reversible

Defendant the of In charging the on defense intoxication. error charged: regard, the trial court this the a has in this case that indicates that use of There been testimony [sic] drug beverages to the and the of alcoholic defendant by prior consumption charged. alleged have This was he is committed murder time testimony bearing drugs as of whether use of and received evidence on question beverages of alcoholic Marko can defendant, the consumption by Bey, manslaughter knowing aggravated or or murder reckless reduce purposeful * * manslaughter *. * * * drug] as If find a result of and he [alcohol consumption you performing are of the mental murder, operations required incapable guilty could found of murder. But the influence of then the defendant not be * * * drugs is defense and/or no matter how not a to the persuasive liquor aggravated bearing guilt manslaughter has no on and, therefore, crime of innocence for that crime. or of defendant trial, object charge not to the Defendant did but urges now that the court failed to make clear that manslaughter aggrava guilty have or could found defendant manslaughter. argument intoxication is a ted His is that requires manslaughter, proof to crime such as which defense disregarded and consciously justi defendant “a substantial risk,” 2C:2-2b(3), aggravated manslaugh or fiable N.J.S.A. ter, requires proof that the defendant caused the victim’s which manifesting extreme indifference death “under circumstances life,” support argu human 2C:11-4a. of that N.J.S.A. Warren, (1986), ment, points to 104 N.J. defendant in which we ruled that conduct is to be measured “defendant’s intoxication, objective regard to his an standard without intoxication, judged not in his claimed state but defendant upon if he sober.” at 577. drew as were Id. Warren N.J.S.A. 2C:2-8b, an of a which states that when recklessness is element crime, if renders defendant “unaware of risk of intoxication sober, he he have aware had been such which would been Intoxication, however, is unawareness is immaterial.” a de murder, 2C:11-3a(1) fense to a crime such as N.J.S.A. (2), knowing requires purposeful conduct. To which defense, constitute a the intoxication must be sufficient to incapable render defendant of such conduct. State v. Camer- on, (1986); N.J.S.A. 2C:2-8. Warren,

As we stated in guilty manslaughter, drunk notwithstanding [a] be found voluntary may unawareness ‘of a risk of which he would have been aware had he been sober * * N.J.S.A. 2C:2-8. Thus, defendant who is so drunk that he cannot guilty guilty aggravated found of murder manslaugh- still be found may manslaughter. ter or N.J. at [104 577.] The net result is that intoxication is not a defense to a crime predicated recklessness, on and a defendant who was so intoxi- cated that he cannot guilty be found of capital murder can still guilty be found manslaughter of aggravated or manslaughter. Accordingly, argues defendant charge that deprived the option of the of finding guilty him manslaughter of or aggravated manslaughter. indicated, As defendant did not object charge, to the and State v. Warren had not been decided at the time of the Consequently, trial. the issue is raised as a plain matter of Although error. charge might have been explicit, more the trial court stated with reference to intoxi- cation, liquor influence of drugs and/or “[b]ut no matter * * * persuasive how is not a defense to aggrava- the crime of manslaughter and, therefore, ted has bearing guilt no on the or innocence of the defendant for that crime.” Thus the trial court made clear that even if defendant’s claimed intoxication negated knowing purposeful murder, or it had bearing” “no on defendant’s culpability for aggravated manslaughter. Al- though the trial court did specifically manslaugh- mention ter, say we cannot charge that plain constituted error. Macon, (1971); State v. 57 N.J. 325 R. 2:10-2. We do not believe charge that the “is of such a nature as to have been clearly capable producing unjust an result.” R. 2:10-2.

Ill SENTENCING September 28,1984, On the trial court conducted a sentencing proceeding in sought which the State prove to two aggravating First, outrageously wantonly or that the murder was

factors. torture, vile, depravity it horrible or inhuman that involved victim, aggravated battery an to the N.J.S.A. 20:11- mind or second, during the 3c(4)(c); and that the murder was committed commit, of, attempt flight an or after commit commission or 2C:11-3c(4)(g). robbery, or ting, sexual assault N.J.S.A. substantially guilt at the relied on evidence adduced trial, phase photographs and slides to also introduced aggravated the murder involved torture or an establish that battery on Ms. Peniston. first, sought mitigating factors: prove

Defendant four he was under the influence extreme mental emotional prosecution, insufficient to constitute a defense to disturbance second, 2C:11-3c(5)(a); years eighteen he was old N.J.S.A. murder, 2C:11-3c(5)(c); third, the time of the N.J.S.A. capacity appreciate wrongfulness of his conduct or his requirements signifi his conduct to the the law was conform intoxication, impaired degree to a cantly as result of but not prosecution, a defense to sufficient constitute N.J.S.A. fourth, factors, 2C:11-3c(5)(d); any including his other upbringing, childhood and that would be relevant to charac offense, to the ter or record or circumstances N.J.S.A. 2C:11-3c(5)(h). contentions, support presented four

In of those defendant witnesses, sociologist first of who testified whom was a objection expert penalty without as an that the death did not potential v. act as a deterrent other murderers. Davis, (1984), we ruled that defendant should be given testimony support on wide latitude the introduction mitigating Notwithstanding pronouncement, factors. testimony fail to the relevance of directed to the we see penalty. example, For effect of death the testi deterrent character or record or mony does not relate “to the defendant’s 2C:11-3c(5). the offense.” to the circumstances of N.J.S.A. as a or not the death acts deterrent is both Whether problematic. Gregg Georgia, controversial and U.S. (1976); Sellin, S.Ct. 49 L.Ed.2d 859 compare T. (1980) Penalty Death 171-72 (comparison of homicide death rates in different “yield[ed] support states no for the power belief the deterrent penalty”) of the death with Ehrlich, The Capital Deterrent Punishment: A Effect of Question Death, and 65 American Economic Rev. 397 of Life (1975)(concluding significant negative that there was a correla- tion between the probability rate, of execution and the murder suggesting effect). thus a deterrent The National Academy of Science has concluded determining there is no evidence for whether or not currently it does have a deterrent effect. Furthermore, we are the death skeptical so penalty, long subjected as it is used can ever be relatively to the kind of rarely, statistical that would establish the analysis or absence validly presence of a Incapacitation: Estimating and [Deterrence the Effects of deterrent effect. (A. Criminal Sanctions on the Crime Rate Nagin J. Blumstein, Cohen, and D. 1978).]

Balancing against deterrence countervailing considerations re- mains, however, primarily legislative Here, decision. sociologist testify was allowed to objection without about the deterrent effect of the penalty. death Such testimony ordinari- ly is inadmissible because it jurors’ diverts “the attention from the facts of the Ramseur, case before them.” State v. 106 N.J. (1987).

Defendant’s aunt parents testified about defendant’s childhood, stating illegitimate that defendant was an child rejected mother, whose father him and whose the sister of the witness, became an alcoholic According and abused defendant. aunt, old, when years began defendant was fourteen he beverages to drink drugs. alcoholic and use He overdosed on marijuana, hospitalized alcohol and and was twice. Defend- ant’s mother testimony placed confirmed her sister’s blame for her son’s conduct on herself. Defendant testified on behalf, apologized his own to Ms. family, Peniston’s and stated “maybe that if I drugs never would have taken it would never happened.” have sentencing phase, charged,

At of the the court the conclusion part: in relevant proved you aggravating has factor been least If find that at least one exists, represented by you weigh mitigating the then must value the one factor represented by against aggravating mitigating the each factor factors value or your judgment proved. on each factor And check the verdict form whether outweighed aggravating by mitigating the or is or is not factor factors factor

found to exist. outweighed by mitigating aggravating proved the factor each factor is Unless factors, aggravating is out- the will be death. If each factor or sentence factors, imprison- weighed by mitigating the sentence will be life the factor or parole ineligibility years. ment term of 30 with If, you example, weighing process is not mechanical or numerical. factors, justify aggravating mitigating that not find factor and three does one process required you. weighing the an answer to The answer automatic your judgment depend does on careful and considered as whether the you mitigating evaluate them favor the defendant to the extent that factors as they outweigh aggravating gravity the the factor. proved outweighed by mitigating aggravating the factor Unless each factor factors, aggravating death. is out- or the sentence will be If each factor factors, weighed by mitigating you the or then must consider whether all factor collectively outweighed by mitigating aggravating factors are the the factors. only you mitigating yes no if You must check or no. Check find the outweigh aggravating mitigating If do factors do not the factors. the factors factors, outweigh aggravating the sentence will be death. unanimous, jurors your must be Since this is a criminal case verdict all 12 deliberating agree particular as or non-existence must existence aggravating you agree mitigating all factors. And must as whether mitigating outweigh aggravating factors. factors objected part charge to that Defense counsel required finding to be unanimous in the existence of mitigating noting objection, factor. After this court read special form that was to use in delibera- verdict its tions:

AGGRAVATING FACTORS you beyond any following unanimously doubt Do find a reasonable (Check answer.) aggravating appropriate factors exist? outrageously was or or inhuman vile, 1. That this murder horrible wantonly aggravated in that it involved or an to the torture, mind, depravity battery victim? Yes_No_ engaged was committed the defendant was in the 2. That this murder while of or an to commit sexual assault and/or Yes commission attempt robbery? _No_ are cheeked no further return this “no,” If all of the above but proceed signed sheet to the Court as verdict in the case verdict your by your foreperson. MITIGATING FACTORS following mitigating Do find that factors exist? you unanimously any (Check answer.) appropriate Marko at the time of the under the defendant, offense, 1. That the Bey, although influence of extreme emotional that disturbance was disturbance, insufficient to constitute a defense Yes No prosecution? _ _ wrongfulness of his 2. That the defendant’s capacity appreciate signifi- conduct or to conform his conduct to the of the law was requirements degree as the result of intoxication but not to a sufficient to cantly impaired constitute a defense to the prosecution? Yes_No_ age eighteen 3. The defendant’s at the time of the murder? He was years old. Yes_No_ other factor which find relevant to the defendant’s character or 4. Any you or to the circumstances of the offense? record Yes_No_ aggravating factor checked If have checked at least one have you “yes” mitigating “no” return this all of the above factors no further but proceed verdict sheet to the Court as verdict the case. your aggravating If have checked one or more factors and one or more you "yes” mitigating aggravating checked factors then state as to each factor “yes,” outweighed mitigating one more of the whether it is or is or by any “yes” aggravat- checked This decision also must be unanimous. If an factors “yes.” outweighed ing mitigating factors, factor is found and not factor death. will be jury p.m. p.m. at 4:22 and returned at 5:15 It retired factors, aggravating found that but none of the four both factors, to the court’s in- mitigating existed. Pursuant trial structions, findings. made no further The court stated the defendant would be sen- verdict would be death, polled juror each to confirm the verdict. tenced to Jury Selection Issues A. Qualification

1. Death jury selection issues. Preliminarily, we address several qualification process, which contends that the death Defendant express ability his or her required potential juror each phase prior guilt to the of defendant’s return a death sentence impartial jury process trial, to an as such violated “conviction-prone” in a that more than non-death results point jurors juries. His is that should be asked their qualified capital punishment only after a murder conviction and views on prior sentencing in phase. rejected the We this contention to Ramseur, Penalty at The Death supra, N.J. 248-54. (the Act) presupposes jury same that heard Act phase sentencing phase. guilt of trial will hear Accordingly, properly “the State is entitled to insist on a prior phase interrogation jurors guilt to of a conducted capital punish- capital trial determine their views on to whether substantially performance of ment will interfere with the their jurors guilt penalty phase].” as or at duties either Id. [in 254. dissent, Handler, 191-98,

In his at post Justice continues ruling disagree this in a to with Court’s State Ramseur that qualified jury impermissibly on death does not intrude defend- impartial right jury an under the state and ant’s federal Ramseur, however, in constitutions. We ruled that death jury a not either qualification of does violate the federal Contrary at state constitutions. 106 N.J. 248-54. the dis- sent, “ongoing we believe that the results of social science research,” compel change post at a in do constitutional interpretation on that issue. System Jury”

2. “Struck Defendant contends that the trial court’s refusal implement jury” system exercising peremptory a “struck for challenges impartial jury. a violated to fair and This Ramseur, argument rejected supra, in at 239- 43. peremptory challenges a are system,

Under struck used adequate jurors have only potential when an number of been “adequate” jurors An qualified. number questioned empanelled, plus must at generally means the twelve that peremptory for the defendant’s chal- twenty to account least lenges, more to account for the State's and at least twelve Ramseur, 3(d). supra, As discussed peremptories. R. 1:8— parties jury system a struck enables 106 N.J. challenges perception peremptory exercise their with better Qualifying jurors additional composition jury. total of the cause, however, efficiency questions raises about the system. struck Ramseur, disapprove did not of the use of a struck we procedure to the sound

jury system, but left use of such courts, “exigen- the trial which are to balance the discretion of parties of the judicial system with the interest cies exercising peremptory challenges.” Id. at 242. Ac- informed cordingly, find that the trial court acted within its discretion we refusing request jury system. for a struck defendant’s Exclusion for Cause

3. permitted he should have been to Defendant contends that juror’s of the bias in juror exclude Kurlowicz for cause because Ramseur, penalty. year, Last imposing favor of the death 248-56, the evolution of the at we traced supra, 106 N.J. jurors from the exclusion for cause of Wither standard for 510, 1770, Illinois, 20 776 spoon 391 88 L.Ed.2d v. U.S. S.Ct. 38, 2521, Texas, (1968), 100 65 to Adams v. 448 U.S. S.Ct. Witt, 412, (1980), Wainwright v. 469 105 581 and U.S. L.Ed.2d (1985). jurors held that 844, Witherspoon 841 83 L.Ed.2d S.Ct. penalty may automatically against the death who would vote Witherspoon by modified excused for cause. Adams Witt for cause stating prospective juror may be excluded because “a capital punishment. That standard of his or her views on ‘prevent substantially im juror’s would or whether the views juror a in accordance with pair performance of his duties as ” 424, Witt, 469 at supra, his oath.’ U.S. his instructions and Adams, 852, supra, (quoting at 851-52 105 at 83 L.Ed.2d S.Ct. 152 589). 2526, In at at 65 L.Ed.2d S.Ct.

448 U.S. Witherspoon ap as modification of adopting the Adams-Witt capital punishment, we observed opponents of plied to the a defendant under the protection that the accorded Ramseur with that generally co-extensive Jersey Constitution was New at 251. federal Constitution. under the Adams, and dealt with the Although Witherspoon, Witt penalty, we believe that the opponents of the death exclusion of proponents are apply jurors should to who same standard obliged give to “a true verdict penalty. jurors All are death * * * 2A:74-6. Jurors according to the evidence.” N.J.S.A. impartial wheth just to render a verdict equally bound are penalty. duty Our to they against for or the death er are impartial jury an leads us to that a defendant is tried assure apply jurors irrespective all single test should to conclude that predilection concerning penalty. the death Accord of their State, (1986). Pope Re v. 256 Ga. 345 S.E.2d cently Supreme similarly the United States Court concluded permit jurors to sit on the reversible error to that it would be penalty phase if in favor of the death sub penalty their bias prop impartiality, provided the defense stantially impaired their challenge the court’s failure to erly preserved — U.S.-, Oklahoma, jurors remove the for cause. Ross case, (1988). present L.Ed.2d S.Ct. Kurlowicz, peremptorily excused we defense counsel because permit juror whether it is reversible error need not decide guilt phase. sit on the favors the death who inability reflects his juror The voir dire of Kurlowicz impartially either mitigating factors and to decide consider all questioning guilt punishment. Under initial defendant’s court, opposed that he Kurlowicz denied both from every he favored it for punishment in all situations and that acknowledged his belief that person of murder. He convicted cases,” “justified in certain but denied capital punishment is penalty influence feelings about the death would that his guilt: on deliberation and of the death could still Even if are favor penalty, you fairly Q. you determining guilty whether the defendant is consider the evidence

impartially charges. guilty or not Yes, A. Your Honor. counsel, juror indi- response questions from defense I think a man should be say, I if it’s a violent crime cated “[l]ike response to an earlier Pursuing juror’s put to death.” by juror meant “cold-blooded counsel asked what question, murder:” a

A. Like in a robbery, hold-up.

Q. Rape?

A. Rape, yes. mean cold-blooded murder? Is that what Q. you

A. Could be, yes. £*‡***** * * * something. to assume you I want you to assume I want you Q. other and the assume that you want and I you all of the evidence heard have * * * and unanimously beyond have found gentlemen with you ladies during course a murder committed a defendant doubt that reasonable ** In that all *. defense at kidnapping, it, no no defense robbery, rape then vote automatically would you so convinced when were situation you death penalty. I would. A. I believe like circumstance in a difficult find it extremely Would you You would. Q. * * * * * * would be very it jail Would you say ? term to vote for that then difficult? be. A. It would it would be almost impossible? Would you say Q. Well, A. yes. Almost impossible?

Q. Yes. A. juror indicated to prosecutor, however, that he would consider factors in mitigation punishment, and that he could return a sentence less than death. question- On further ing by defense, Kurlowicz position reverted to the that he would “find very it difficult against” to vote death where the murder was Finally, “cold-blooded.” the court asked Kurlowicz whether he would “automatically vote for the death penalty or you would consider the mitigating factors?” The * * * juror indicated that his decision would not be “automatic one way or the other.” Because of response, Kurlowicz’s the court purview not come within the he does Wither- “satisfied

was defense, previously as indi- juror. spoon" and seated cated, juror peremptorily. Kurlowicz later excused discloses, interrogation juror stat preceding

As the “automatic,” that he but his decision would be ed that not to vote for the death impossible” it “almost would find suggests capacity his to credit penalty. That statement impaired” mitigation “substantially would be the evidence Notwithstanding his meanings of Adams Witt. within mitigation, his the evidence that he would consider assertion impaired” impartially “substantially was capacity deliberate I should “if violent crime think a man be by his it’s a belief put to death.”

Here, however, harmless. Defendant excused the error was juror through peremptory of a chal- Kurlowicz exercise lenge. Despite peremptory that it forced to use a fact challenge, peremp- its allotment of the defense never exhausted challenges. Although perempto- tory “the denial ry challenge right,” of a is the denial substantial case, (1979), present defendant Singletary, 'Singletary, peremp- unlike the defendant in did not exhaust his Kurlowicz, moreover, challenged juror was the first tories. defendant, challenges remaining. at that time had nineteen who Thus, disagree with Justice Handler’s conclusion that the we prospective juror refusal to excuse a for cause on “erroneous regardless death-qualification grounds should be reversible ultimately peremptory a defendant exhausts his chal- whether lenges.” Post at 205. to the United States Con the sixth amendment

Under stitution, to excuse for cause a error to fail it is not reversible by a defendant peremptorily dismissed juror who is thereafter long challenges as the peremptory who exhausts all “[s]o ** Oklahoma, supra, impartial Ross v. jury that sits — at-, at 90. 101 L.Ed.2d 108 S.Ct. U.S. that error would case, need not determine whether present we I, paragraph Jersey reversible under article 10 of the New Constitution. recognize forcing peremp a defendant to

We “waste” tory challenge could force defense counsel be more cautious remaining in peremptories. Consequently, the exercise of we particularly caution trial courts to be in sensitive cases complement twenty peremp to the defendant’s to a full of 1:8-3(d). Here, tory challenges. See R. the defendant did not complement peremptory challenges, exhaust his full of and the failing error in to excuse Kurlowicz for cause was harmless. State, Thompson (Nev.1986). v. 721 P.2d 1291 1:8-3(d) Rule regard, provides judge In that trial “[t]he discretionary authority shall proportionally have the to increase peremptory challenges the number of available to the defend any sentencing procedure ant and the in case in State which utilized,” i.e., of N.J.S.A. 2C:11-3 might c. in subsection a penalty approaches death case. As the defendant the exhaus peremptory challenges, tion of his or her the trial court should increasingly possibility prejudice become sensitive to the juror heightened from its failure to dismiss the for cause. That sensitivity generous should lead to a more exercise of discretion perempto approaches as defendant the exhaustion of his or her ry challenges. Sentencing Procedures

B. (1987), Biegenwald, v. v. N.J. State 106 13 and Ramseur, supra, 106 Penalty N.J. we sustained the Death 2C:11-3c, constitutional, Act, facially finding N.J.S.A. as the risk that it the statute had been drafted avoid would be Ramseur, supra, applied arbitrarily capriciously. 106 pertaining N.J. at 183. We also addressed certain issues application Specifically, we interpretation of the Act. penalty may imposed death not be “without concluded that the outweighed the mit finding aggravating factors a doubt,” Biegenwald, beyond a igating factors reasonable and that instructions should never supra, 106 N.J. jury’s responsibility for the decision whether the dilute the die, Ramseur, supra, defendant should live or 106 N.J. at 316. present requires procedures case us to elaborate on the reaching that decision. We sentencing jury is to follow qualitative difference proceed with the awareness of be- penalty penalties, and other a difference that tween death jurors impose makes it unthinkable for the death justness.” they when harbor a “reasonable doubt as to its at 60. Biegenwald, supra, Mitigating 1. Consideration of Factors struggled Supreme develop The United States Court has system capital punishment that is “at once consistent and uniqueness principled but also humane and sensible to the Oklahoma, 104, 110, Eddings the individual.” U.S. 869, 874, (1982). progression In a S.Ct. L.Ed.2d cases, system has ruled that such a must channel the Court jury, severely of the not so discretion but as to deflect the jury’s being from the individual who is attention sentenced. sentencer, therefore, The must consider “the character and particular record of the offender and the circumstances of the * * Carolina, 280, offense *.” v. North 428 Woodson U.S. 304, 2978, 2991, 944, (1976). We, too, 96 49 L.Ed.2d 961 S.Ct. sentencer, recognized judge jury, have whether “[t]he obligation unique to evaluate the circum has constitutional Biegenwald, supra, stances of the individual defendant.” 106 459, Florida, 447, (quoting Spaziano N.J. at 48 v. 468 104 U.S. 3154, 3161, 340, (1984)). It S.Ct. 82 L.Ed.2d 352 follows that a may preclude jury considering any state statute not from mitigating pertaining any aspect relevant evidence of defend Shuman, -,-- ant’s character. v. 483 Sumner U.S. -, 2716, 2722-23, 56, (1987); 107 S.Ct. 97 L.Ed.2d 65-66 104, Oklahoma, 869, Eddings v. 455 102 71 L.Ed.2d U.S. S.Ct. (1982); Ohio, 586, 608, 2954, 1 438 98 Lockett v. U.S. S.Ct. 2967, 973, (1978); Ramseur, supra, 57 L.Ed.2d 992 106 N.J. at

157 611, (1984). 185-86; Davis, jury The 96 N.J. 617 sentencing it is to death. should know whom moreover, sentencing procedure, may expose A a defend- penalty imposed spite in ant to “the risk that the death will be Lockett, penalty.” may of factors which call for a less severe 605, 2965, supra, 438 at at 57 L.Ed.2d at 990. U.S. S.Ct. principles, with these constitutional the Act enumer- Consistent factors, factor, eight mitigating including a catch-all which ates relating provides for the introduction of evidence to: (h) character or record or other factor which is relevant to the defendant’s Any 2C:ll-3c(5).] [N.J.S.A. to the circumstances of the offense. granted legislative that the defendant be wide intent mitigation in of the death leeway presenting evidence Hearing apparent history also from the of the Act. Public Senate, Judiciary on No. Feb. Before Senate Committee (Public (“The Hearing) leeway for the factors of wide.”) (statement Russo, mitigation is F. Senator John Chairman); (“The jury has a to consider whatev id. at 13 imposi presents mitigation er evidence [the defendant] Stier, (statement penalty.”) of Edwin Director tion of the death Department in the of Law of the Division of Criminal Justice Safety). 1:8-9; guilt unanimous. R. State v. Jury verdicts on must be (1949); Gadson, Cordasco, State v. N.J.Su Act, Legislature carried In the per. (App.Div.1977). sentencing phase unanimity requirement forward the “if the is unable to reach by providing case verdict, sentence the defendant the court shall unanimous By requiring pursuant b.” to subsection penalty, the statute imposition of the death unanimous on the responsibility for the juror accept must full assures that each 163, Reynolds, 41 N.J. imposition of that sanction. State v. 1930, (1963), denied, L.Ed.2d 377 U.S. S.Ct. cert. denied, 379 13 L.Ed.2d reh’g U.S. S.Ct. (1964) . through jury discharges responsibil-

The vehicle which the its aggravating existence and ity is the determination the mitigating balancing against the of the former the factors and sentencing phase, jury obliged In the the to deter- latter. mine, first, any aggravating the factor or factors. existence jury aggravating find that least one factor The must exists penalty may imposed. jury the be If the “finds before death * * * aggravating exist that no factors court shall sentence b,” pursuant requires the defendant to subsection which a term If, however, imprisonment. jury aggravating finds an exists, any mitigating factor then it must determine whether making findings factors also exist. After fact about the “exist- ence or non-existence” of aggravating and mitigating factors, jury judgment must then make the normative whether the aggravating outweigh mitigating beyond factors a reason- decision, effect, appropri- able doubt. That determines the penalty ateness of the death for the defendant. decision, reaching jury should balance all

aggravating against mitigating recog factors all factors. We 2C:11-3c(3) apparent inconsistency nize an between N.J.S.A. 2C:11-3c(3)(a). provides: and The former N.J.S.A. section jury, jury, setting or if there is no the court shall return a verdict special writing aggravating forth in the existence or non-existence of each of the (5) mitigating (4) paragraphs If factors set forth of this subsection. any aggravating factor is found to the verdict shall also state whether or not exist, outweighs mitigating it a reasonable doubt one or more factors. beyond any 2C:11-3c(3).] [N.J.S.A. section, however, provides weighing The latter process, aggravating or the finds factors exist and that all court [i]f any aggravating outweigh

of the a reasonable all factors doubt beyond mitigating the court shall sentence the defendant to death. [N.J.S.A. factors, 2C:11-3c(3)(a).] 2C:11-3c(3) Conceivably, require could read to N.J.S.A. be weigh aggravating against factor one or more each doubt, however, mitigating factors. no that for the We have imposed, death overall effect must be that all outweigh mitigating beyond a rea- aggravating factors factors Biegenwald, supra, doubt. sonable 106N.J at 62. jury to

Although expressly require Act does not be finding aggravating factor or unanimous in the existence of an factors, has not unanimity suggests that the factor the lack beyond required by doubt as established a reasonable been 2C:11-3c(2)(a). finding on the Requiring a unanimous N.J.S.A. gener aggravating factor is consistent with the existence of an cases, and is not requirement unanimity in criminal al disputed by unanimity requirement extends the State. defendant, Legislature and the only to verdicts adverse to the may provide for the return of a verdict favorable to the See, unanimity. Kirkley, e.g., defendant on less than (1983)(Exum, J., dissenting); 308 N.C. S.E.2d State, (Tex.Crim.App.1978). For Molandes v. 571 S.W.2d Act, unanimity requirement redounds to example, under the by mandating that he or she must the benefit of the defendant imprisonment jury rather than death unless the sentenced to imposition penalty. of the death N.J.S.A. is unanimous on the 2C:11-3c(3)(c). case, must be present

In the one issue whether finding mitigating of a factor. unanimous in the existence inconclusive, logic of the Although legislative history is Legislature jurors need not Act indicates that the intended mitigating factor. Unlike unanimously find the existence of State, aggravating an must establish the existence of which doubt, only the defendant bears beyond a reasonable factor any the existence of producing evidence of “the burden 2C:11-3c(2)(a). Thus, the defend mitigating factor.” N.J.S.A. forward, only coming not the burden of ant bears the burden Hearing, mitigating of a factor. Public proof on the existence supra, at 12. logic of the Act to rule that a contravene the

It would aggravating out- unanimously reach a verdict that the could doubt if weigh mitigating beyond factors a reasonable supported the existence jurors that the evidence eleven believed jurors prevent- were mitigating factor or factors and those of a ed, disagreement solitary juror, of a from because against aggravating weighing mitigating those factors just juror result follows if one believes factors. The same jurors might single mitigating a factor. All the existence of exist, mitigating jurors might and some agree that some factors exist, agree agree mitigating may but all on that all factors In any particular mitigating of factor. such a the existence case, jury unanimously does not find the existence of where factor, mitigating aggravating if at least one factor any it finds exist, imposition to the finding that would be tantamount juror mitigating factor the death sentence. A who found a precluded weighing despite that factor the fact would be from aggravating he or she did not believe that factor that outweighed mitigating The same result would factor. jurors acknowledged particular follow if eleven of twelve a effect, mitigating single dissenting juror factor existed. imposition penalty. could force the of the death stated, previously do not believe the As we have “[w]e go his doom one Legislature intended a man should because juror disagreed Reynolds, with eleven.” State v. [the other] long juror in the supra, at 187. As as one believes factor, mitigating juror permitted should be existence of a engage weighing process. Maryland, supra, in the Mills v. — at---, 1865-66, 100 L.Ed.2d at 108 S.Ct. U.S. Kirkley, supra, 308 N. C. at 393-95. But see State (“consistency jury fairness dictate that a at 157 S.E.2d mitigating unanimously find that a circumstance exists before purpose sentencing”). Each may it be considered for beyond a reasonable doubt that the juror must be convinced mitigating Any juror aggravating outweigh the factors. who mitigating of a factor must be allowed believes the existence by conducting doubt to determine whether he harbors such a weighing process. his or her own present comply in the case did not instructions jury: requirement. charged The court “Since this with that unanimous, jurors all 12 your verdict must be a criminal case the existence or non-existence deliberating agree must as to mitigating factors.” Consistent with aggravating or particular “Mitigating factors: Do charge, provided: the verdict sheet following mitigating unanimously any find that you charge prevent was to each The effect of that factors exist?” factors, mitigating factor or no considering any juror from in the existence of the strongly juror believed matter how factors, agreed that the factors existed. jurors all other unless results produce arbitrary and unreliable charge can That such is obvious. impose that the must not corollary to the rule

As a aggravating finds that the juror if even one the death factors, juror each must outweigh mitigating do not factors mitigating factors. As individually determine the existence relating to the mitigating factor juror perceives any long as one beyond a outweighed crime that is not defendant or to the factors, jury must not by aggravating reasonable doubt supra, Maryland, to death. Mills v. sentence the defendant — 1865-66, at---, at 100 L.Ed.2d 108 S.Ct. at U.S. therefore, individually determine should juror, Each 393-95. individually decide and then mitigating factors the existence of mitigating factors be- outweigh the aggravating whether the weigh- independent Only after such yond reasonable doubt. a agreement jurors of all juror may the unanimous ing each penalty. of the death imposition lead to the held, contrary a recently Supreme Court As the United States Constitution. States violate the United interpretation would agree jury requiring the Court found Specifically, before the mitigating factor of a unanimously to the existence unconstitutionally precludes factor jury may give effect to that proffered by the mitigating evidence considering jury from of the death sen- imposition an erroneous defendant and risks reasons, imposi- reverse the we preceding For the tence. Ibid. on defendant. tion of the death 162 Jury’s Responsibility for Its Verdict

2. The Sense cases, sentencing constitutes a link between capital jury penal system. With community values and the contemporary hardly link, punishment could the determination out that evolving decency that mark the “the standards reflect 428 maturing society.” Gregg Georgia, v. U.S. progress of a 859, (1976) 2909, 2925, 153, 173, 49 874 96 L.Ed.2d S.Ct. 86, Dulles, 101, 590, 598, 356 78 Trop v. U.S. S.Ct. (quoting 630, (1958)). jury speaks, When the it is 642 as the 2 L.Ed.2d Ramseur, community. supra, 106 at conscience of the N.J. crimi important as correct instructions are to all 316. As Collier, (1982); Green, cases, v. 90 N.J. 117 State v. nal State (1981),they capital are even more crucial in a case 86 281 jury’s responsibility to decide whether a defend because of responsibility ant shall live or die. Correlative to that “reliability in requirement of enhanced the determination punishment specific appropriate death is the case.” Cald 320, 330, 2633, 2640, Mississippi, v. 472 U.S. S.Ct. well (1985) Carolina, 231, (quoting v. North Woodson L.Ed.2d 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, (1976)). 428 U.S. charge sentencing phase Consequently, in its to the trial, not to dilute the of a a trial court must be careful responsibility determining appropriate jury’s sense of 328-29, penalty. 105 Ct. at ness of the death Id. S. Mount, (1959); 239; v. 30 N.J. accord

L.Ed.2d at (Jan. 20, 1988) Tennessee, (slip op. at No. 83-241 III Johnson v. WESTLAW, 26) on 1988 WL 3632]. [available requires that the juror Each must decide whether the law Illinois, put Witherspoon death. defendant must be According- 20 L.Ed.2d 776. supra, 391 U.S. S.Ct. jury the that a ly, instructions must communicate to the court’s application of product is not the of a mechanical death verdict statute, judgment jury’s the a reflection of the normative but fitting appropriate punishment.” Rams- that death is “the and eur, mere fact at 316 n. 80. Jurors are not supra, 106 N.J. finders, the ultimate determiners of whether the defendant but live shall or die. jury can that

A court should not instruct the that it avoid findings. merely making factual ultimate determination responsibility jury’s an dilutes the Such instruction sense finding court must ensure that the the death verdict. trial mitigating factors reflects the unanimous of the absence of agreement jurors they are convinced that the death of the that Durre, People penalty fitting appropriate. is v. 690 P.2d (Colo.1984). apprise jury The instructions should the aggravating and merely that it is to decide the existence of not factors, mitigating supporting but evaluate the evidence making “unique, judgment” those the individualized factors appropriateness penalty. of the Zant death regarding 862, 900, 2733, 2755, 77 Stephens, 103 S.Ct. L.Ed.2d 462 US. Thus, (1983) J., (Rehnquist, concurring). the sentenc phase requires jury judg to make ing of a case a conflicting should live ment based on values whether defendant supra, In die. 106 N.J. at 62. addition Biegenwald, instructions, compli a trial court insures providing appropriate by providing a sheet weighing process with verdict ance consequences of its decisions and informs agreement individual with by polling jurors to assure their Ramseur, at n. 80. supra, 106 N.J. verdict. case, correctly by began trial present court upon the State to

stating ultimate burden rests that “[t]he fitting appropriate you convince death Then, instructed the punishment in this case.” court beyond a it convinced reason that it decide whether was should If it so decid any aggravating factor existed. able doubt that mitigating ed, any factors then to find whether jury was factors, any mitigating it was jury failed to find existed. If the findings its as verdict. cease and return its deliberations charged: Specifically, the trial court aggravating factor least one If the State has beyond find that you proved mitigating are satisfied as the existence any reasonable doubt but you * * accordingly form *. factor, check the verdict In that event the sentence will death. problem with this instruction is it reasonably could jury impression left with

have the the that its was function merely aggravating mitigat to determine the existence of Further, ing jury factors. if the found aggravating at least one factors, mitigating penalty factor but no the death would auto matically from operation follow the mechanical of the statute. Consequently, charge the jury, failed to communicate that the “law,” of ultimately mechanics the statute or the responsible imposition for the of the penalty. death The court expressly should have the jury consequence instructed that a of finding aggravating one or more mitigating factors and no jury thought factors meant that the that the death penalty fitting appropriate punishment a for the defendant. Such charge would have “suitably any directed” belief of juror inappropriateness about death to one or more mitigating 153, 189, Gregg Georgia, factors. 428 U.S. 2909, 2932, (1976). S.Ct. L.Ed.2d fact, jury aggravating mitigat- In found two and no ing Although factors existed. jury’s verdict reflected the findings, factual it is jury not clear that the understood that it deciding impose bore the burden of whether to the death it by sentence and that was not statutory relieved some scale as sum, the ultimate arbiter of defendant’s life. we find reversible error the trial court’s failure to inform the that it unanimously mitigat- need not find the any existence of ing factor responsible and to instruct the that it was for imposition penalty. death by

3. Instructions the Trial Court and Comments Prose- cutor that Diluted Jury’s Responsibility Sense of Death Sentence portions

Defendant contends guilt phase that other instructions jury’s responsibility diluted the for the imposition penalty. death charged: The court discharging duties fear deter from your faithfully Let no you responsibility neither nor this from verdict your you for the follow may consequences is Court responsible. discharged our we our fairly, conscientiously firmly, When have duty leave the law. are at an end and we the to consequences may responsibilities ******** guilty the a verdict should not concern with possible penalty You yourselves bring. the is for Court. will The imposition solely punishment Further, “[tjhere nothing is jury that the court assured the jury proof is the way different in the a to consider peculiarly persons treat from that in which all reasonable a criminal case to depending upon presented evidence them.” any questions a it is unconstitutional “to rest death sen- We iterate that by who has led on determination made sentencer been tence responsibility determining appropri- for the that the to believe rests elsewhere.” Caldwell v. ateness of the defendant’s death 328-29, at Mississippi, supra, 472 at S.Ct. US. absolutely Trial “to make judges at 239. are bound L.Ed.2d aware, jury simply consequences not certain the [that] actions, responsibility judgment.” for the its but of its total Ramseur, Ramseur, In we that 106 N.J. at 316. found supra, “merely jury the was to deter- the trial court’s instruction that aggravating mitigating or presence mine the absence present you weigh are you they and if find that are factors impression its may left with the that them” have the fact-finding. Accordingly, we function was one of mechanical prejudicial instruction constituted error. Id. held that the 316. phase guilt in the focuses on the instruction

Defendant you responsibility no deter from jurors fear of the should “[l]et duties,” yourselves the discharging your “not concern with guilty bring,” and penalty a will “leave possible verdict brief, argues the defendant consequences to law.” believe, We our admonition Ramseur. instruction violated phases of however, guilt penalty the concerns on the pass sufficiently for the instruction to the trial are distinct jurors do obligated courts are ensure muster. Trial capital let their on punishment substantially views interfere performance with the phase of their duties at either of a case, trial. at 254. In present guilt See id. the trial court’s phase instruction did not jury’s responsibility dilute sense penalty phase. on the by

Defendant also contends that prosecu comments penalty phase tor on the improperly summation diluted the jury’s of responsibility sense for the death decision. Specifically, following defendant refers to the statements prosecutor: given “You have him a fair trial. If the results, death, if the end is then so balancing be it. If the equivalent that, factor is be it. sorry so But don’t feel comments, however, Bey.” Marko Those do not rise to the impropriety level of prejudicial that we found in Ramseur. Here, prosecutor simply urging perform statutory weighing process allowing without pity extraneous to however, bias judges, prosecutors its verdict. Like should gratuitous refrain from comments that could to the lead uncon jury’s stitutional dilution of a sense responsibility of for its verdict.

4. Adequacy Jury of the Regarding Mitigating Instructions

Factors aspect charge Another of requires the our attention. As indicated, previously requested defendant trial the court to charge jury general the with explanation a the of nature and function mitigating of factors:

Mitigating justification do factors constitute a or excuse for the necessarily offense in rather, are circumstances question; which fairness and they extenuating degree reducing be considered as or mercy, the of moral may culpability. Defendant, who had insanity not asserted the defense of or capacity guilt phase, diminished requested comprehen- at the a explanation sive of “extreme emotional disturbance insufficient to prosecution.” Concerning constitute a defense to the intoxi- cation, requested defendant an instruction on the distinction charge of and as a defense to the murder between intoxication regard sentencing. on With to defend- mitigating factor as emphasizing age, requested an instruction both ant’s defendant youth immaturity time of the and his relative and at the offense concerning factor potential Finally, rehabilitation. the his anything to to the that authorizes the consider relevant or record the circumstances of the defendant’s character offense, requested focusing jury’s an defendant instruction the of on evidence the defendant’s difficult back- deliberations the opinion the about the deterrent effect ground, expert witness’s possibility the of rehabili- penalty, the death defendant’s tation. incorporate any did not defend-

The actual instructions pertaining general to requests. ant’s In the instruction factors, simply mitigating the court stated function “mitigating those would tend toward the factors are which charged the court imprisonment.” of life Then sentence to have do both with circumstances factors “[t]he traits, background personal qualities, crime of the and the concerning charge specific entire of the defendant.” The mitigating factors was: mitigating following factors with The defense has advanced the accordance listing of them in the Criminal Code: under the That the Marko was at the time offense defendant, Bey, 1. although that disturbance

influence of extreme emotional disturbance to a defense to insufficient constitute prosecution. wrongfulness That 2. defendant’s capacity appreciate signifi- of the law was or to conform his conduct conduct requirements degree of intoxication but not sufficient as a result cantly impaired a the constitute defense to prosecution. age eighteen He was at the time of the murder. years 3. The defendant’s old. would find relevant the defendant’s 4. other factor which you Any of the offense. or to the circumstances character record in the from J. an Bowers, have Dr. William expert You heard the testimony to the sociology. as opinion He has been permitted express field As he is an in the field of the death deterrent value and effect penalty. expert of that the witness and he consider the to which spoke, you may qualifications given reasons for his opinion. 168 jury court then instructed the on how to evaluate the of an [The testimony expert witness.] mitigating charge Now with to the last I are factor, respect you you anything concerning to consider a defendant’s life and characteristics

required guilty. and the circumstances of the crime for which he was found particular brief, charge mitigating essentially factors was a statutory language. recitation of the Defendant contends that mitigating the elaboration of factors was so minimal as to preclude jury giving adequate from consideration to defend- mitigating charge ant’s evidence. He further contends that the instructions, requirements Jersey jury violated of New law on prevented jury properly conducting weighing from process mandated the Act. Because of our decision to grounds, 162-63, other reverse on ante at we find it unneces- sary alleged inadequacy to decide whether the jury Nonetheless, instructions warrants reversal. we consider de- purpose guidance fendant’s claim for the in other cases. See Ramseur, supra, 106 at (considering adequacy N.J 287 aggravating instructions on solely guidance factors and not addressing the issue whether the deficient instructions reversal). case warranted

Defendant concedes that he has “no to select the particular phrasing jury instructions in his case.” See (quoting Gaines, id. at 292 United States F. 2d (11th Cir.1982)). Both the federal courts and this Court have prescribe specific language guide declined to jury’s mitigating Setting consideration of factors. such standards deprive could a molding trial court of the discretion it needs in a charge. Supreme written, As the United States Court has “the require adopt specific Constitution does not stan instructing dards for aggravat in its consideration of ing mitigating Stephens, circumstances.” Zant v. 462 U.S. 862, 890, 2733, 2750, (1983). S.Ct. L.Ed.2d important point requiring is not so specific charge much as it providing guidelines with for “an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Id. at S.Ct. does 2743, Consequently, “the Constitution at 251. 77 L.Ed.2d * * * respect with and detailed instructions require specific not circumstances, long so as there aggravating mitigating and its role jury that the misunderstands possibility is no reasonable sentencing procedure or misunderstands capital in the Peek mitigating circumstances.” See function of meaning and Cir.1986); 1479, (11th Briley v. 2d 1493-94 Kemp, 784 F. v. (4th Cir.1984). Although the Bass, 1244-45 750 F. 2d considering jury from directly preclude the did not instructions evidence, argues that the defendant any mitigating did not suffi because the instructions effectively precluded so mitigating meaning purpose of and ciently communicate factors. sentencing preclude must requirement that mitigating circumstances would relevant

consideration mitigate how the evidence can explanation of without an hollow Otherwise, court penalty. death imposition of the arbitrary and to the risk of an subject the defendant would supra, Gregg Georgia, v. jury determination. capricious before at 883. Even at 49 L.Ed.2d 96 S.Ct. U.S. Act, recognized “[appropriate we the enactment fair trial” and that for a proper charges are essential fash- in an understandable explain to the charges “should involved.” State legal issues in relation to the ion its function sum, court’s it is the trial Green, at 287. supra, 86 N.J. juror will understand reasonable duty assure that a mitigating factors. meaning and function language particular any is not bound A trial court factors, the court mitigating but instructing jury on when purport “in the text and factors explain those adequately must Ramseur, at 292 supra, 106 N.J. charge.” of the whole (1971)). That 59 N.J. Thompson, (quoting State v. principle that corollary of the may as a requirement be viewed duty expounding performance of the court’s “faithful plain requires and instruction jury’s guidance law for the Green, supra, 86 N.J. v. of the issues.” State exposition clear mandate is the legislative consistent with at 288. Also “cover procedure Act’s so as to implement the requirement to protection of the defendant.” contingency for the every possible (statement F. John supra, at Senator Hearing, Public chairman). charge must assure that Russo, Consequently, misunder possibility juror that a will reasonable there is no meaning of the mitigating factors and the the function of stand relies. Accord An particular which the defendant factors on (10th Cir.1986); 1264-65 Shulsen, 2d 802 F. Peek v. drews Zant, 1494; Spivey v. 661 F. 2d 784 F. 2d at Kemp, supra, v. Cir.1981). (former 5th 464, 471 charge We turn now to the respect this case. With general factors, mitigating to the function of the trial court attempt should have made clear that to establish the justify existence of those factors was not to or excuse defend conduct, present extenuating regarding ant's but to facts defendant’s life or character or the surrounding circumstances justify the murder that would a sentence less than death. In failing jury to tell the it could mitigating consider all guilt evidence adduced in either the sentencing proceedings, or charge failed to meet appear that test. Similar deficiencies charge concerning specific mitigating factors. For exam ple, merely the court read the words of the statute when charging jury mitigating on the pertaining factors to de offense, fendant’s emotional disturbance at the time of the c(5)(a); intoxication; c(5)(d); age, c(5)(c); and the catch § § § mitigating factor, c(5)(h). all Jurors are untrained in statu § tory interpretation, Green, supra, v. 86 N.J. at and merely repeat instructions that language verbatim the generally Act inadequate. are People Lucky, supra, Accord 221 Cal.Rptr. at 710 P.2d at 976. court, trial in this case occurred before to the fairness Ramseur, discussed the opinion in in which we

the date of our adequacy particular mitigating instructions on factors. remand, On the trial court charge should conform its to the requirements opinion. of that

5. Additional Issue Related to Concerning Instructions Miti-

gating Factors: The Omission of Instructions on the Role Sympathy Jury’s Penalty in the Phase Deliberations Defendant contends that the trial refusing court erred in regarding instruct the jury proper sympathy role of and mercy penalty phase its deliberations. At the close of the penalty phase, requested defendant that the be instructed mitigating factors are circumstances that warrant “fair- mercy” ness and “compassion sympathetic under- standing,” “[a]ny sympathy compassion and that which [the proffered] mitigating may engender circumstances can be taken by you coming your into consideration decision as to however, penalty.” charge, The requested did not include the instructions.

An instruction not to base a on sympathy” verdict “mere jury focuses mitigating deliberations on evidence. See Califor- Brown, nia v. 479 U.S. 107 S.Ct. 93 L.Ed.2d 934 (1987) (upholding constitutionality of instructions “not [to] sentiment, swayed by be mere conjecture sympathy”). or Ramseur, 296-99, supra, 106 atN.J. we found no error in the * * * charge jury any that the “should decide the case without * * * result, sympathy.” Underscoring emphasized we instructed, c(5)(h), jury pursuant that the to section that it may mitigating consider any as evidence other factor that is relevant “to defendant’s character or record or to the circum- stances of the offense. reference to such other factors as ‘mitigating’ inevitably suggests jury may properly they engendered feelings sympathy consider whether for the instructions, however, defendant.” may Id. at 296. The not “preclude jury considering possible mitigating from all sympathy might circumstances and such as those circumstances inspire.” removing Id. at 297. Instructions aimed at emotion rejecting into sentencing not mislead capital must

from character, background, or engendered defendant’s sympathy mitigating circumstances. other preclude the

Here, challenged did not instruction merely failed to sympathy generally. It considering jury from sympathy consider the properly it could advise the mitigating factors it found to engendered by the compassion court can that a trial This is not error. We believe exist. it by instructing it that jury’s channel a discretion properly any by omitting sympathy a case on should not decide communicates the function sympathy. If the court reference factors, meaning particular and the mitigating factors sympathy mercy should explain proper role of failure legitimate use of those juror cause a to misunderstand feelings. Concerning Aggravating Factors

6. Instructions Constitutionality Aggravating c(4)(g) Factor a. it alleges Act is unconstitutional because Defendant that the felony sentencing by allowing a murder promotes irrational aggravat as either an by one’s own act to be treated committed murder, 2C:11-3c(4)(g), or a to a N.J.S.A. ing factor 2C:11-3a(3), homicide, punishable by a degree lesser N.J.S.A. This contention was thirty years imprisonment. to life term of Ramseur, however, at 188-89 n. rejected, supra, change ruling. The death our and we are disinclined “by kills felony murderer unless he may imposed on a not be murder. another to commit the own conduct” or hires his murder, however, felony of a 2C:ll-3c. Commission N.J.S.A. the if the defendant committed aggravating remains an factor Accordingly, we Ibid. “knowingly.” “purposely” or murder c(4)(g). constitutionality of section the reaffirm c(4)(c) b. Sufficiency Charge on Section of alleges jury charge regarding aggra- Defendant also that the vating c(4)(c) vague. factor was unconstitutionally Section c(4)(e)provides jury may find aggravating that the as an factor vile, outrageously wantonly murder or was horrible “[t]he torture, mind, or inhuman in that it involves of an depravity or Ramseur, In aggravated assault to the victim.” recognized we c(4)(c), vagueness” the “obvious Section 106 N.J. at but by narrowing supplying rendered factor constitutional adequately guided construction that the jury’s discretion. Once decision, again, because the trial occurred before the Ramseur opinion court did not have the trial benefit of our in that case.

Here, statutory language the trial court read the jury, interpreted introductory language and then as modifying provision. part charge the second of the The effect torture, jury battery, depravity to instruct the that the or must being vile, “wantonly warrant characterization of or horrible interpretation In rejecting Ramseur, inhuman.” we introductory language indepen- found that was neither an requirement qualitative dent nor a modification the second portion provision. Presumably Id. at 199-200. all mur- perceived vile, “outrageously wantonly ders will be as or horri- and, inhuman,” therefore, introductory language ble or this aggravating could mislead the about the essence of this The non-capital factor. distinction between murder mind, physical pain is the defendant’s state of not the or mental actually Consequently, suffered the victim. 207. Id. reading charge court should this factor without statute. “[tjorture aggravated or should be instructed that battery to the victim be if the shall found defendant intended cause, cause, physical psychological and did in severe fact or death,” pain suffering prior to or to the victim the victim’s depravity purpose shall found if murder “served no pleasure killing,” beyond the defendant id. at Ramseur, if the defendant caused mutilation after death. concepts each of sample jury set instructions on these we forth that, particular of explained depending on the facts and case, charge on and might inappropriate it both “torture aggravated battery” “depravity.” Id. at 291-92. charge jury’s in this failed to focus the consid The case improperly eration on defendant’s intent and instructed the if “wantonly the murder could be characterized as vile or inhuman,” horrible it find this factor to exist. On or should remand, c(4)(c) charge the trial court should frame its on section pursuant requirements. to the Ramseur Counting Aggravating

c. Double Factors penal further instruction Defendant contends that the on the phase ty permitted rape to double count defendant’s of sum, aggravating argument Ms. In Peniston as an factor. aggravated robbery, is that defendant was sexual convicted assault, Assuming felony murder. that the conviction for aggravated supported felony sexual assault conviction murder, an evidence of sexual assault would count as aggravating 2C:11-3c(4)(g). factor under That same N.J.S.A. included, goes, argument support evidence so the was assault, torture, finding aggravated or depravity under N.J. Thus, 2C:11-3c(4)(c). the defendant contends that S.A. aggravated was impermissibly evidence of the sexual assault double counted. it State denies ever contended “that the sexual finding support outrageously

assault sufficient to that an was vile, horrible, murder wantonly or inhuman had occurred.” Rather, theory the State’s was that viciousness attack, resulting injuries unrecog in numerous internal and an clearly outrageous nized body, battered reached the level an vile, horrible, ly light or wantonly or inhuman murder. 2C:11-3c(4)(c) ruling our in Ramseur that the focus N.J.S.A. state-of-mind, suffering, is on the defendant’s victim’s theory misguided. the State’s reversing Because we are the penalty death on other grounds, need dispute counting we not resolve the about double believe, nonetheless, the sexual assault. We that it would be helpful in guidelines this and future cases to set forth where the same more supports evidence than one factor. represents attempt comply

The Act an to with the constitu- tional mandate that jury suitably the discretion of the “be directed and limited to wholly so as minimize the risk of arbitrary capricious and Georgia, action.” Gregg supra, v. 428 189, 2932, 96 U.S. at S.Ct. at 49 guidance L.Ed.2d at 883. That provided by objective designed must be sentencing standards to compel to jury particularized the “focus the on circumstances of 199, 2937, the crime and the defendant.” Id. at 49 S. Ct. L.Ed.2d at 889. factors,

The eight aggravating Act enumerates distinct N.J.S. 2C:11-3c(4)(a)-(h), eight factors, mitigating A. and distinct 2C:11-3c(5)(a)-(h). designed S.A. Those factors are to serve the narrowing by function and Gregg progeny. mandated its impose however, determination whether to the penalty, death counting aggravating does not follow from the mere the Instead, mitigating greater. factors to which see is the the impose decision to penalty qualita whether the death turns on a tive analysis the circumstances of the offense and defend ant’s character. For jury conclude that the is defendant executed, judgment it must make the normative that the Thus, appropriate. death is aggravating one factor outweigh beyond mitigating could a reasonable doubt numerous Similarly, solitary mitigating outweigh factors. factor may Still, aggravating all recognize factors. we with the side largest may practical advantage number of factors have State, sentencing jury. before a See Wiley v. 484 So.2d (Miss.1986) (Robertson, J., concurring). supports The fact that aggravat the same evidence two ing necessarily factors does not mean that a defendant will be prejudiced merely because finds two factors instead of Nonetheless, jury’s particularized cir focus “on

one. when the crime the defendant is undercut cumstances of multiple artificially conduct is inflated the defendant’s special charging overlapping People circumstances.” v. Harris, 797-98, Cal.Rptr. 679 P.2d Cal.3d (1984). Accordingly, jurisdictions held that 448-49 several have improper present aggravating factor that it is gain aggravat pecuniary murder was committed for when the during ing murder course of a factor that the occurred robbery presented. factors refer to the same also Both State, See, aspect e.g., of the defendant’s crime. Cook (Ala.1979); State, 1256 v. 337 No.2d Provence No.2d (Fla.1976); Rust, v. 197 Neb. 250 786 N.W.2d (1977); Harris, People supra, Cal.Rptr. at see also v. 201 800-01, (permitting prosecution at 451-52 to P.2d factors, charge requiring aggravating both but court to instruct determining jury purposes to the factors for consider as one State, appropriateness penalty). of death But see Engberg (Wyo.1984) (finding counting P.2d 541 no double because gain for while pecuniary murder relates to defendant’s motive during robbery murder of defendant’s refers to the character act). appropriate

We resolution is to allow believe prosecution seeking prove to use same evidence factors, multiple aggravating provided the trial court advises jury simply compare that it should the number factors, aggravating against mitigating number of factors once, it considering that it is the same more than and that facts being prove should be that the are used to cognizant same facts aggravating jury than This result permits more one factor. factor, aggravating to consider the evidence relevant to each prevent weight giving and should it from undue to the number aspect supports of factors one defendant’s when conduct multiple aggravating factors. disagrees repeats

Justice Handler with that resolution and Ramseur, argument, originally set forth in his dissent in 384-94, supra, aggravating that 106 N.J. at factors “do double they duty; simultaneously are used to narrow the class of guide murders and to the sentencer’s discretion.” Post Ramseur, rejected argument 217. supra, We 20, finding 2C:11-3a(1)-(2) at 186-88 and n. N.J.S.A. eligible define the class of N.J.S.A. 2C:11-3c death defend purposely knowingly ants as those who have caused death hand, paid their own or who have someone else to do so. subjected penalty, The class of offenders to the death as it, distinguished eligible from those who are is limited to aggravating those as to whom the has found that “the (or factors) outweigh any mitigating factor factor or factors Ramseur, beyond supra, a reasonable doubt.” 106 N.J. at n. 20. Concerning Jury

7. Instructions Possible Verdicts refusing Defendant asserts that the trial court erred in instruct the that the failure to reach a unanimous verdict thirty years’ imprisonment would result in at least without defendant, parole. According that error violated his risk the death a fair trial and created a substantial imposed arbitrary capricious sentence would in an and regarding jury manner. The trial court’s instructions to the the possible any it could return omitted reference to a verdicts that non-unanimous verdict: aggravating outweighed mitigating is the factor

Unless each factor proved by aggravating If each factor is out- or the sentence will be death. factors, weighed mitigating life the factor or the sentence will be factors, imprison- by ineligibility a term of ment with thirty years. parole ^[********] jurors unanimous,

Since this is a criminal case verdict must be all twelve your deliberating agree to the existence or non-existence of must as particular agree mitigating aggravating as And must to whether the or factors. all you outweigh aggravating mitigating the factors. factors jury: the Similarly, special form instructed the verdict aggravating more and one or more one or factor “yes” If have checked you aggravating mitigating factor checked “yes” then state as to each factor “yes,” mitigating outweighed or of the factors is not one more whether it is or by any aggravating This also must be unanimous. If decision an checked "yes." outweighed mitigating factors, a factor or the is found and not factor by death. added.] will be [Emphasis 2C:ll-3c(3) provided: trial, N.J.S.A. the time At (a) aggravating jury finds factor exists and If the court that any outweighed mitigating court sentence factors, one or more shall by death. defendant (b) aggravating jury finds factors or that exist, If the or the court that no any outweighed mitigating aggravating one or more factors exist are which court shall sentence the defendant to subsection b. factors, pursuant (c) jury a sentence If the is unable to reach unanimous court shall verdict, b. the defendant to subsection pursuant Bamseur, it Construing provisions these we found “clear contemplated possible Legislature that the three final verdicts imprison- a results in in a case: unanimous verdict that ment, death, a a non- unanimous verdict that results imprisonment.” results in 106 N.J. at unanimous verdict that it error for a trial court to 301. We therefore found reversible sentencing options. of all fail to three advise initially jurors court in that if trial Bamseur advised verdict, they agree findings they on their were unable to event, report should so to the court. such an court require would “either further deliberations with additional in- accept your inability I to reach verdict in structions or will a When, penalty shall Id. at 303. which case the not be death.” deliberating hours, jury reported about four its after decision, however, inability to return a unanimous the court did leading not inform the non-unanimous verdict acceptable of its life sentence was an outcome deliberations. Rather, supplemental charge the “im- the trial court's stressed Id. portance reaching a unanimous verdict.” at 306. prevent arbitrary capricious imposition To and penalty, jury death we ruled that a must be informed of its sentencing options: jury range sentencing permitting

To hide from the the full of its thus options, its decision to be based on uninformed and inaccurate possibly speculation what the outcome would be in the event there was not is to [about unanimity] goals mock the of modern death rationality consistency required by day jurisprudence. [Id. 311.] Ramseur also was guided Our decision in by a 1985 amend Act, 2C:11-3f, N.J.S.A. ment to the requires which that: jury’s sentencing jury Prior to the the trial court shall deliberations, inform the of the sentences which be to subsection b. of this section may imposed pursuant jury on the defendant if the defendant is not sentenced to death. The shall also be informed that a failure to reach a unanimous verdict shall in result sentenc- ing the court to subsection b. pursuant Thus, required “juries of, we in cases be informed exercise, final, statutory option and free to their to return a if, resulting imprisonment non-unanimous verdict after a deliberations, period they agree.” reasonable are unable Ramseur, supra, at 312.

Here, argues the State that it harmless error for the trial court to refuse to inform jury that the failure to reach a imprisonment. unanimous verdict would result in a sentence The possibility jury might State reasons that the that the only jury unable to reach a unanimous verdict could arise if the aggravating mitigating first found both factors and then disagreed jury about the balance of those factors. Because the mitigating existed, argues found no factors the State that the obliged result, was not to balance the factors. As a so the argues, possibility regard- of a non-unanimous verdict ing weighing process the outcome of the never arose. We disagree. fallacy argument ignores the State’s is that it charge arising the defects in the from the failure both to inform finding it need not be unanimous in the existence any mitigating charge adequately meaning factor and to particular mitigating factors. the error in Ramseur insignificant We find it to be supplemental charge, occurred in the while error Indeed, the flaw present original charge. in the case occurred charge may as less serious because be viewed the Ramseur jury the of its court the outset the trial there instructed acceptable an agree failure would be that the deliberations contrast, present never jury In the in the case received verdict. unacceptable the prevent speculation about this instruction. To verdict, in- the court must consequences of a non-unanimous non-unanimous, final, returning a jury option of its form the thirty years result in a minimum of verdict that would instruction, parole. In addition imprisonment without provided jury forms to the should include as special the verdict inability jury possible verdict the to reach unanimous decision. case, this how-

The factual distinction between Ramseur and First, ever, remedy. an error may affect the issue of “which substantially directly procedural on impact[s] and fundamental process jury safeguards, particularly upon the sensitive deliberations,” harmless error. cannot considered (1980). Czachor, the We noted in Ramseur that N.J. proper remedy such is reversal of the “usual and errors sentencing proceeding in sentence and a retrial of the death may again penalty.” which the defendant face death Ramseur, however, at 313. the court’s failure to jury sentencing options jury its occurred after the inform “clearly an had deliberated for four hours and demonstrated bring in an inability unwillingness uncoerced unanimous supplemental for the Ibid. The verdict death sentence.” charge deprived merely of “not the theoretical the defendant error, that, possibility but likelihood absent the a substantial resulting imprison- jury would have reached a verdict Thus, held, 314. we as a ment rather than death.” Id. at fairness, that on remand the trial court matter of fundamental if final jury should sentence the defendant as had reached a non-unanimous verdict. case, however, jury

In the never indicated instant error, that, “a have likelihood would substantial absent [it] resulting rather than death.” imprisonment verdict reached a fifty-three min- a unanimous verdict within returned Thus, suggesting possibility of deadlock. utes without ever require regard “intolerably it unfair” to do not as we sentencing proceeding. undergo a second defendant to Id. Charge Balancing Aggravating Mitigat- Improper on

8. ing Factors charged mitigating that “if the

The trial court factors, the sentence outweigh aggravating do not the factors balancing improper charge an on the will death.” This was be supra, In aggravating mitigating Biegenwald, and factors. of 63-67, of fundamental we held that as a matter 106 N.J. fairness, imposed the penalty may the death not be unless outweigh mitigating aggravating that “the factors the finds to instruct the beyond a reasonable doubt.” The failure factors retrial of the this standard mandates reversal and as to to the Act penalty decision. Ibid. A 1985 amendment death explicitly requires this “clarify” previous intended to the law in it would be balancing Biegenwald, standard. As we stated intent, Legislature’s not unjust, probably and outside the “both provisions the of intended give previously those tried benefit at 66-67. In place.” in the law in the first Id. to have been exists, case, mitigating factor juror any if no finds that another weighing could consti give proper instruction the failure however, not, need reach that issue tute harmless error. We mitigating finding of no factors was this case because the those factors. pertaining instructions by tainted the deficient Penalty Phase Errors in the 9. Additional Photographs to Prove a. Admission of c(4)(c) Aggravating Factor suppress- court erred contends that the trial Defendant depicting body, which were ing photographs the victim’s certain 182 during penalty phase the by prosecution, the

introduced c(4)(c). photographs and aggravating factor establish face, victim, including body her show the entire of the slides by graphically described the State’s which was discolored defendant, maggot According to the pathologist as infested. pictures their inflammatory nature of these far exceeded response, prosecution contended that probative worth. “to way” for the State show an pictures were the “best aggravated battery depravity and/or torture which arises from agreed pictures these of The trial court and ruled that mind.” c(4)(c). prove aggravating admissible to factor were admissibility photographs It settled that “the is well court, trial victim of a crime rests the discretion of the discretion not be in the exercise its will reversed absence palpable Thompson, 59 N.J. 420 abuse.” State v. (“the (1971); 4 in his judge may also discretion see Evid.R. probative if he finds that its value substan exclude evidence * * * outweighed its will tially by risk that admission danger prejudice confusing a substantial of undue or of create Palpable only misleading jury”). abuse exists issues unquestionably “logical will over where the relevance inherently particular prejudicial whelmed nature Smith, (1960), denied, picture.” cert. State v. (1961). U.S. S.Ct. L.Ed.2d case, course, pictures to required In the instant of the were to of murder “logically relevant” the issue whether the vile, “outrageously wantonly or committed defendant was torture, depravity in that horrible or inhuman it involved mind, aggravated an the victim.” 2C:11- or assault to N.J.S.A. 3c(4)(c). jurisdictions that have considered the admissibil Other ity to photographic pursuant evidence variations of section e(4)(e) prove held to an have them admissible offense “vile,” Commonwealth, 220 266 Va. S.E.2d Justus State, (1980), heinous,” 93 419 2d “especially or Smith v. No. (Miss.1982), denied, 1047, 103 cert. U.S. S.Ct. (1983). L.Ed.2d c(4)(c) set forth in Rams- the reformulation of section Under eur, however, photographs prove not be admissible to would vile, “outrageously wantonly or horrible or that a murder was Rather, at 197. evidence of the section inhuman.” c(4)(c) pain relate to the intent of the defendant or factor must Specifically, prove to that the defendant intended of the victim. her, aggravated battery commit an on to torture the victim or the prosecutor the must show that defendant “intended to cause, cause, physical psychological in fact severe or and did death”; suffering prior the to the victim’s pain or to victim mind, depraved prose- prove to that defendant acted with prove purpose murder “served no for the cutor must that the Id. at 211. killing.” beyond pleasure defendant light our of the sentence on other reversal grounds, we need not determine whether the trial court abused Nonetheless, admitting photographs. its discretion in we light any photographic caution the court to evidence in evaluate c(4)(c) interpretation of the section factor announced Ramseur. Photographs may be admissible on torture and aggravated battery proof pain as of intent to inflict severe grue depravity on mutilation after death. Pictures of to show mind, defendant’s state of how some details unrelated ever, excluded. should be Right Opening Make the Initial

b. Defendant’s Statement and Final Summation argues demands Defendant that fundamental fairness opening statement that the defendant should make the initial during penalty phase of a and the final summation premise, implicit argument predicated on the false trial. This instructions, that the defendant bore in the trial court’s mitigating proof demonstrate that factors burden of Because it outweighed aggravating factors. bears prove beyond a reasonable doubt burden at the trial factors, outweigh mitigating aggravating factors that the 184 Ramseur, right open supra, close.

the State has the and n. 106 N.J. at 318 81. conviction, but reverse the

We affirm defendant’s murder imposition the death and remand matter for a sentencing. trial new on

CLIFFORD, J., dissenting. agreement says my I record here what Justice Handler with dissent, issue, I B peremptory-challenge on the in Part of his post did see at 198-205. Because defendant not exhaust challenges, this from peremptory Single- case differs State v. (1979). tary, persuasively explained by 80 55 But most N.J. as Handler, 200-205, at that feature render post Justice does not peremp- created exercise harmless the error the forced of a death-qualification tory challenge non-struck-jury, in the con- text. that,

Beyond with because record reveals unmistakable clarity right deprivation of defendant’s to remain silent privilege against under fifth amendment and state-law self-incrimination, judgment uphold I dissent the Court's from ing respect In that I conviction murder. am agreement opinion substantial with II of Justice Part Handler’s persuasively which he so that faithful adherence establishes Arizona, 1602, 86 16 L.Ed.2d Miranda v. U.S. S.Ct. (1966), Michigan Mosley, v. 423 U.S. 96 S. Ct. level, (1975), 46 L.Ed.2d 313 federal and to this Court’s Kennedy, (1984), decisions in v. N.J. State (1986), Hartley, any leaves no room conclusion unconstitutionally other than defendant’s confession ask, asks, compelled. as I would the Court ante at beyond “whether the error is harmless a reasonable doubt.” me unequivocal For the answer is an “no.” only I convincing exegesis To Handler’s would add Justice following. The issue on which I focus whether defendant If, ambigú- remain matter invoked his silent. no how cease, then that questioning request that ously, he did honored, supra, 103 Hartley, scrupulously request must be interrogation cannot police-initiated custodial at and The warnings have been reissued. until the Miranda resume than “reach[ing] no further as states its conclusion Court statement that defendant’s the circumstances finding under happened] did what lie down and think about he wanted to [that right to remain silent.” of his an invocation not constitute heart of the finding is at the precise That at 142. Ante is with that issue. And it the confession decision on Court’s disagree. finding precisely I precise p.m. It was interrogation started at 5:38 The custodial 7:35, continued until at p.m., at 7:15 resumed interrupted happened imme- silent. What then remained 8:20. Defendant below, the trial sharply disputed but diately thereafter below) (of more finding of fact which specific court made a the events: police version of on based to think down and lay 8:30 the defendant requested permission [A]t p.m. 9:30 in a cell. At about p.m. police He was about what placed happened. again to contact asked if he wanted defendant was to the cell and the returned negative. in the and he anyone, replied The long-paragraph moment. moment—a here for a Pause record,” at ante suggests I “misread majority ][ unadorned, unembellished, flat-out I this when characterize finding that leads to but a of fact trial court as statement of the No, to silence. invoked defendant one conclusion: “comment,” 141—one to Court, only ante it is a says the from which we should pay little attention we should which view, developed (indeed, as will be my not draw obvious did trial court below, possible) conclusion because only appreci- finding, fully not did significance of that realize the it, did not from and would follow of law that ate the conclusion materially disputed issue.” “resolution of a it as the intend finding. And how finding is finding is a 141. But a Ante at police disputed”? The “materially more a fact issue be could court made thing, said another. defendant said one specific finding police represented that the the truth. version is, suggest finding To that that is not a of fact in the Court's it, expressing way of to “misread” the trial court’s statement eyes suggest and to close one’s to the record. To it is comment, simply thoughtlessly dropped an idle one into the record, worthy being one not reliability invested with be- potential signifi- cause the trial court was to its blind critical cance, cynicism place in jurispru- smacks of a that is out of our (would finding dence there have been a of fact had different given just thought court a little more to where this one lead?). suggest And to eyes would that we should close our specific finding rely because defendant did not at trial on it support proposition urges appeal ignore as for the he on is to place “plain capital-murder of the error” in Rule cases. See Ramseur, 123, (1987) (in case, capital State v. 260 N.J. sponte Court considered sua whether plain there was error in juror); (1987) voir dire of Biegenwald, State v. (“In proceeding imperative no is it more to be assured that the [capital] cases”); (“While outcome is fair in than at 53 id. defendant did appeal, not raise the issue either at trial or on we find that the sentencing proceed- trial court’s instructions in the ing plain constituted error of a nature to warrant our considera- Mount, tion sponte”)) (1959) sua State v. 30 N.J. (“where stake, a life is at this court does not hesitate in the justice interests of plain invoke the error rule and to reverse impregnated where the trial errors were with the likelihood of having rights (cita- harmed the substantial of the defendant.” omitted)). Court, tion It any is unthinkable that this in criminal appeal, case, specific never mind a murder treat would a finding anything of fact as less than different from what it is simply finding because a defendant did not use that way arguing legal points in to the trial court. But that is what the Court has done. It is say unthinkable that this court would urged a finding because defendant a of fact different from court, the one made the trial defendant therefore could not rely finding on support legal argument the court's on is, And it the Court has done. again, But that is what appeal. capital-murder would let a word, that this Court unthinkable high-stakes game. sort of “Gotcha” into some appeal deteriorate — U.S.-,-, Oklahoma, 108S. Ct. Ross v. See J., (Marshall, dissenting: “A life is at (1988) 101 L.Ed.2d games.”). pains And it me to playing should not be stake. We very likely perceived is what the Court will that that observe having done. as interrogation to the detective bureau.

But let us return opportunity to lie down given the resumed, defendant was after without, everyone p.m. as thoughts, at 10:05 and collect warnings. If de- readministering of the Miranda agrees, the fact-finding, court’s quoted above the trial request, fendant’s police stop questioning, their request that the to a amounts trig- would agrees circumstances again everyone as —the then— warnings, in requiring new Miranda Hartley principle ger the inadmissible. confession was defendant’s the absence of which request lay “to interprets the way majority Here is the happened”: think about what down and to thinking about some time his desire spend Defendant communicated merely interrogation. [Ante subject 138.] events that were the mind, apparent- as long you keep as enough, as Reasonable not, the obvious distinction ante at does see ly the Court thinking hand, time between, “spendpng] some the one on interrogation,” subject of the that were about the events interruption purposes for of other, momentary and, on the eat, standing oneself, drink or a bite relieving getting a de- continuing. Here relaxing before stretching, or otherwise him police brought cell hour before spent fendant an The interrogation. for further detective bureau back to the interrogation, does how, of a custodial in the midst question is: subject hour about think for an lie down and one interrogation stopping? The Court interrogation without findings the conclu- says “p]mplicit [trial court’s] question- sought the cessation that defendant had sion added). profound Only the most (emphasis ing”! Ante at 139 respect my colleagues my expression exasperation mutes conclusion, “implicit” with the stated as well as with the declaration, equally extravagant Court’s ante at that no police reasonable officer could have construed defendant’s re- quest right fact, as an assertion of his to remain silent. In way there is no other to construe it.

My reading yields of this record but one conclusion: defend- by asking, ant invoked his to silence in mid-interrogation, permitted that he be to lie down and think about what he was being nothing ambiguous asked. I see request. about the It nothing can mean other than that he questioning wanted the stop. warnings He was entitled to his Miranda before the police pursuit resumed their get of a confession. He did not Therefore, them. his confession was inadmissible. I would reverse the conviction and remand for a new trial. HANDLER, J., dissenting. today attempt, begun Court continues the in State v.

Ramseur, (1987), Biegenwald, and State v. (1987), N.J. 13 to narrow construction the reach of N.J.S.A. application 2C:11-3 in order to make the of the statute constitu attempt tional. For this the Court is to be I commended. believe, however, continue to the statute as drafted is Constitution, invalid under our State and that the Court’s construction of the statute has thus far failed to assure the reliability and consistency necessary prevent arbitrary infliction of the penalty. death Ramseur, position State v. I took the that N.J.S.A. 2C:11-3 should proscription be held to violate this State’s punishments cruel and unusual requirement and its of due process. expressed belief, I contrary legislature’s to the assumption, Supreme that the federal precedent provides Court only protection indeed, a minimum level of rights; of individual variety statutory degrees structures and the of arbitrari approved by Court, ness Supreme and the Court’s vacilla- years, capital punish- tions recent have convinced me topic is a protections ment suited the broader of individual rights our Ramseur, afforded under State Constitution. See supra, (Handler, J., dissenting). 106N.J. at 345-69 This did not view, require, my holding penalty per a that the death is se unconstitutional; rather, I capable contended statute is that the application such broad of and variable that it should have been reaching question invalidated without any of whether death statute, narrowly drafted, however would be unconsti- (Handler, J., dissenting). tutional. Id. at 382-406 begins capital that, The statute with a definition of murder itself, by require does not even capital that a defendant have kill, 387-390, intended to (majority id. at id. at 194 acknowl- cf. edges Florida, that federal court’s decision in Enmund v. (1982), may require U.S. S.Ct. L.Ed.2d 1140 murder). capital intent to kill for or primary The basic defini- any major does not tion include element or factor that plausibly capital makes murder a offense. constitutionally re- quired narrowing the class capital of murderers is thus factors, aggravating committed to the definition of the which deciding are considered not when is whether the culpable deciding defendant is when but is whether the Moreover, defendant should aggravating be executed. these are, conceded, majority factors as the themselves so broad as to most, all, Ramseur, include if supra, not murders. 106 N.J. at (Handler, J., (acknowl- dissenting); 390-94 188-89 id. at cf. edging factors). aggravating breadth of the absence Given any meaningful narrowing through guilt or effective penalty phases, by prosecutors the discretion afforded such a limitless; virtually prosecutor can prose- scheme choose to any cute as almost killing murder done one’s “own by serving aggravating factors, a notice conduct” thus rendering death-eligible enabling prose- defendant try death-qualified, demonstrably puni- cutor him before a tive, jury. prosecutorial The results the exercise of such discretion, asserted, only arbitrary. I can Id. at 404-08

(Handler, J., likelihood, moreover, dissenting). The of conduct- review, ing proportionality an effective when the varieties comprehended by great, murder the statute are so seemed to objections today. me remote. Id. I reiterate those The stat- ute both as enacted and as construed fails to assure the reliability require enhanced this Court should under the State Constitution.

I opinion therefore dissent from the Court’s in this case for Ramseur, expressed my opinions the reasons in in State v. at Biegenwald, relating N.J. and State v. at N.J. constitutionality of the death I statute. also dis- agree opinion grounds. with the Court’s on several I additional by am of the view that defendant was not tried a fair and impartial jury. These trial qualifica- deficits inhere the death tion of the and in improper application of death qualifying accepting juror standards in for service and the juror failure to excuse that I cause. am also of the view that the defendant’s confession was elicited in violation of his fifth privilege against amendment and state self incrimination silent, by refusing to honor his to remain which he addition, interrogation. invoked the course of custodial I respect applica- dissent from the views Court with to the tion in potentially overlapping aggravating this case of the c(4)(c) c(4)(g). factors of

In my opinion grounds constituted these errors for reversal under reversibility either the conventional standards for used by majority, under enhanced standard of review for companion causes discussed in the case of v. Bey J., (Handler, dissenting). (1988) It (I), 106-19 112 N.J. majority's engage is the scrupulous failure to in the review of record, aspect of an enhanced standard of review that (I), Bey supra, was followed this Court in State v. 91-95, I believe has contributed to its decision to uphold despite the conviction errors that call for its reversal.

I.

A. during challenges death-qualified jury the use of a Defendant majority, without guilt phase of his bifurcated trial. 149-50, discussion, contention, summarily rejects this ante at Ramseur, opinion supra, relying on this Court’s State v. Ramseur, Court, extended 248-54. This in without N.J. at McCree, reasoning, the decision in Lockhart v. chose to follow 1758, (1986), 90 137 where the 476 106 S.Ct. L.Ed.2d U.S. unconstitutional to deter- Supreme Court ruled that it was not Ramseur, jury. guilt by death-qualified a mine a defendant’s supra, 106 N.J. at 248-54. disagree position. this Id. at 428-35

I continue to with (Handler, J., my opinion I that there was dissenting). noted research to support ongoing social science authoritative death imposition who favor the of the suggest that individuals penalty generally punitive more than those who disfavor are J., (citing (Handler, dissenting), at 431 penalty. Id. the death Wilson, Capital Jury Punishment and Performance” “Belief Jurow, 1964); on University of Texas “New Data (unpublished, ‘Death-Qualified’ Jury of a on the Guilt Determina the Effects (1971); Process,” Fitzgerald and Ells- 657 tion 84 Harv.L.Rev. Death-Qualification worth, “Due Process vs. Crime Control: (1984)). Attitudes,” I under 8 Hum.Behav. 31 Jury Law favoring jurors generally the death scored the observation that mercy, likely more to favor penalty likely are “less to consider crime, reducing and more punishment as a means of harsh laws, of all no matter likely in the strict enforcement to believe (Handler, J., dissent consequences,” 106 at 431 what the N.J. Ellsworth, supra, 8 Hum. ing) (quoting Fitzgerald Law 43-44). appearing since reaf at The literature McCree Behav. Canan, Seltzer, Lopes, Dayan, and firms this conclusion. See Qualification Propensity on the of Jurors Effect of Death “The (1986). Example,” 29 571 Maryland The How.L.J. to Convict: 192 selecting jurors addition to for service whose attitudes are attitudes, punitive death-scrupled jurors’ process

more than engenders itself qualification partiality among death jurors. paramount process imposi The makes the issue of the itself, tion of the suggesting guilt death thus that the foregone a Haney, defendant is conclusion. See “On the Capital Selection of Juries: The Biasing Effects of the Death Process,” Qualification (1984). 121 Law Hum.Behav. One transcript death-qualifying cannot read the of a voir dire proceeding impending without sense of doom. See State v. Ramseur, (O’Hern, J., concurring) (quoting N.J. Hovey Superior Court County, Alameda 28 Cal.3d 70-71, 128, 175, Cal.Rptr. (1980)). 616 P.2d majority dealing critically Ramseur eschewed with the problems by using death-qualified created jury. simply It acquiesced in Supreme the determination of the United States Court, only observing protections that “the regarding death qualification Jersey afforded under the New Constitution are greater no different from than those under the federal Ramseur, supra, Constitution.” 251. This uncriti- acceptance Supreme cal of the on Court’s lead this fundamental issue baffling several for reasons.

First, woefully appreciate it fails just how restrictive and protections minimal are of the federal Constitution. -, Kentucky, 2906, Buchanan v. 483 107 U.S. S.Ct. 97 (1987), instance, petitioner L.Ed.2d 336 challenged the death-qualification jury of his when the death was sought (the only capital as to his portion co-defendant petitioner’s indictment was dismissed on the basis of Enmund Florida, 782, 3368, v. supra, 458 U.S. 102 73 S.Ct. L.Ed.2d 1140, petitioner kill). because the had not killed intended to at-, 2910, 483 Thus, U.S. 107 S.Ct. at 97 at L.Ed.2d 346. question conviction-proneness death-qualified of the ju ries was squarely posed, petitioner subject for the only to murder, non-capital possible conviction for and not to a death sentence. claims, holding that rejected petitioner’s “[t]he Court at-, the instant case.” Id. in controls

decision McCree addressed the 2913, The Court 97 L.Ed.2d at 350. at S.Ct. juries by death-qualified conviction-proneness of of the issue in that the studies was assumed McCree noting “just as it adequate to establish methodologically valid and were ‘both produces juries in somewhat qualification” fact “death “non-death-qualified” juries’ ... “conviction-prone” than more 16, 107 assumption here.” Id. at-n. a similar we make 16, Despite this 350 n. 16. n. 97 L.Ed.2d at at 2913 S.Ct. qualification, and conviction-proneness with death in increase charged with a petitioner was not the fact that despite procedure on the basis offense, upheld the use of the the Court 2913-14, at-, at McCree, at 97 L.Ed.2d 107 S.Ct. id. stated: The Court 350-51. here as of the issue error is his characterization presented

Petitioner’s primary joint trial of to the actual affecting in this case —the trial, as trial, opposed has determined that it has Commonwealth and Stanford.....[T]he petitioner joint trial providing in a with the authority proceed an interest prosecutors out of the same criminal defendant arises conduct of more than one when the 97 L.EdM at 107 S.Ct. at 352.] {Id. at-, events. trials, the constitutional joint interest Given the State a fair cross section selected from presupposition “that mix of individual impartial, regardless of the community is long as the jury, so actually represented on viewpoints carry out their sworn conscientiously properly can jurors case,” id. at particular of the law to the facts duty apply (quoting Lockhart -, at 354 at L.Ed.2d S.Ct. 90 L.Ed.2d McCree, at at S.Ct. supra, U.S. violation death- 155), no constitutional found the Court petitioner. non-capital qualifying and, just permissive how illustrates Buchanan federal — Ramseur, standard State —constitutional regrettably, after concern implicates Justice O’Hern’s This decision is. do, can but what the State question for us is not real “[t]he of our common just exercise do the rather what we should juris- within our practice criminal power over supervisory law Ramseur, (O’Hern, J., supra, diction.” 106 N.J. at 333-34 concurring). It glaringly also illustrates the differences vast protection between the minimal afforded the under federal greater protections and the that the Constitu- Constitution State provide. tion should recognize

In failing ceiling addition to how low is the of protection, federal the majority’s constitutional Ramseur ac- juries ceptance conviction-prone” that of are “somewhat more departs radically safeguarding from this decisions Court’s the integrity impartial jury. to an While no one insists procedure can perfect, be made no other has context this accepted proposition Court prosecutorial mere conve- any justifies procedures nience—or state that render interest — ” jury ‘conviction-prone.’ McCree, supra, “somewhat more at U.S. S.Ct. at L.Ed.2d at 147. Simon, (1979), rejected 79 N.J. 191 this Court the submission special interrogatories of jury in a conspiracy a criminal case prior jury’s general of deliberation a precisely verdict the interrogatories’ “potential because of destroying for ability jury upon guilt to deliberate issue free of (emphasis innocence extraneous influences.” Id. at 199 added). continued, noting that, Court potential “[t]his subtly interrogatories harm inheres in the coercive effect can upon have the course jury’s They of a deliberations. can conditioning constitute form of mental which is antithetical to (em- functioning jury.” untrammeled of a 199-200 Id. at added). phasis This no required showing Court conclusive the interrogatories jury rendered the “somewhat more convic- indeed, tion-prone;” the Court’s decision in the event such a showing J., have (Pashman, would been unanimous. Id. Rather, dissenting). interrogatories’ “unique it was the capaci- ty proselytize guilt to the before defendant” issue, Court, deliberated that id. at that led this based “our applicable on own standards to the administration of justice,” to reverse. No involving Id. at 203. considerations prosecutorial judicial convenience or economy outweigh could

195 procedure could perceived tolerating harm in a bias the jury. aberration; this Court has

Nor State v. Simon an been disapproving practices predisposing in that risk steadfast itself, In guilty. a Ramseur this jury to consider defendant Czachor, its earlier decision v. 82 N.J Court followed State (1980), reversing defendant’s death sentence because of 392 doing issuance of coercive instructions. In the trial court’s so, argument rejection reaffirmed its the Court justifies “time and resources” the issuance of conservation of designed produce a unanimous verdict. forceful instructions Czachor, 403). (citing supra, at 82 N.J. at 106 N.J 308 State v. moreover, quoted, majority’s conclusion The Court Czachor resulting coercive instructions need not prejudice that the from “readily empirical objective assessment measured bearing guilt.” 106 upon defendant’s N.J. of the evidence (citations Czachor, at 404 (quoting supra, v. N.J. State omitted)). Thus, rejected the Court identical Czachor qualification. to support death state interest advanced moreover, Collier, (1982), this v. N.J. State Pollock, J.), partial that a directed verdict (per held Court of minor contributing delinquency to the a guilt charge on a other, more on the serious required reversal of conviction partial verdict on charge rape “the directed because jury’s ability objec to assess contributing charge impaired the Because, in guilt rape charge.” tively the on the defendant’s words, rendered the partial directed verdict other re this saw fit to conviction-prone,” Court “somewhat more (1981)(prohib 216-17 Ingenito, v. 87 N.J. verse. See State against criminal defendant estoppel iting the use of collateral because, removing facts from the deliberative “by significant irresistible, gravita strong, perhaps it “a process,” constitutes verdict, utterly which is inconsistent pull guilty tional towards in its deliber jury remain free ... requirements with the that a (1987) Corsaro, ations”); 352-53 see also State had partial after verdicts (prohibiting juror of a substitution fact-finding been underlying partial returned because the those predisposed have juror verdicts would the substituted toward guilt open charges); on the v. Ragland, 105 N.J. (1986)(reversing possession 195-96 weapon conviction of a by a felon charge convicted because the had the effect of verdict); directing 489, (1985) v. Ingram, State 98 N.J. 500 (while rely statutory may presumption State on that defend gun permit procure ant’s failure to adduce entails the to failure one, jury liberty must be instructed that it is “at to find the other”). way ultimate fact one or the This Court has historical insisted, moreover, ly capital that in is vital cases that the “[i]t jury pass upon should the case free from external causes tending to disturb exercise deliberate and unbiased judgment.” Kociolek, 92, (1955) v. 20 N.J. 105 (quoting States, 140, 149, 50, 53, v. 146 Mattox United 13 U.S. S. Ct. 36 917, (1892)). Jackson, L.Ed. 921 See State 43 N.J. (1964), Jersey, cert. denied sub nom. Ravenell v. New 379 U.S. (1965); Mount, S.Ct. L.Ed.2d 572 State v. (1959). imagine 212-13 is It difficult to an “external cause” that would tend more to “disturb deliberate and impartial judgment” jury qualification, than death which both punitive jury selects a more and conditions that to that guilty. believe a defendant is The balance this Court strikes under our Constitution be- tween a defendant’s impartial jury entitlement to an and the prosecutorial state’s has not in been other con- convenience texts, and in should not be penalty, context of death ceiling controlled protection. the low of federal To allow it to be is jurisprudence so controlled to render our own incoher- ent, for while in cases as such Simon even the risk of “mental conditioning” guilt procedural toward was sufficient to override convenience, under federal doctrine a propensi- demonstrated ty conviction-proneness toward does not affect balance in slightest. insist, favor of convenience in the We did not in Simon, on empirical proof special interrogatories that the ren- dered the conviction-prone; they could was matter sense, they had was sufficient. of common risk demonstrating conviction-proneness Similarly, the studies conviction-proneness scien- juries may prove death-qualified that I am ratify the common sense notion tifically, they but do I if I likely guilty to an accused if am asked would more believe consider willing to him before I am asked to vote execute consistent, moreover, guilt. of his The studies are evidence willing to vote to intuition that those who would be with the believe, likely more for in- impose the death are stance, “[pjeople required should be accused of crimes prove courts are too lenient with their innocence” that “[t]he al., Seltzer, supra, How.L.J. at days.” criminals these et short, identify qualification 605. these death studies risk; jurisprudence, our that risk should be substantial under compel develop enough the State to alternatives. What the endorsed, contrast, an view majority has either incoherent or, ironically, a of re- jury impartiality, different standard cases, different, view which death is considered so, safeguards. entitled to fewer perversely but procedure to this Finally, only justify reason advanced trial; it is sim single-jury interest in a bifurcated state’s a murder on bifur for try a defendant pler and easier to interest This the state’s jury. same cated before the basis McCree, by Supreme Court in based on Arkansas’ relied on thus, legislative policy mandating unitary capital juries by and by implication, was same interest relied on this Court recognize, majority failed to What the Ramseur Ramseur. strong however, simply is not as is that this State’s interest as McCree; inwas in contrast to Arkansas’ Arkansas’ interest statute, procedure, Ark. penalty which mandated this see death 41-1303(3), makes our death statute a Stat.Ann. § 2C:11-3c(1). If jury discretionary. noth unitary See N.J.S.A. else, ing policy, light considered in this this attenuated State evidence, and social should jurisprudence State’s science development will vindi mandate the of State alternatives that prosecution and the cate the State’s interest in economical both right to a has defendant’s that not been informed before deliberating guilt they may a defendant’s of a crime that have executing emerging to him it. The consider for literature since challenged the notion McCree has that alternatives to death See, qualification are M. e.g., Derry, unworkable. Robert Death-Qualified Juries,” to the “Remedies Dilemma (1986); Comment, “Inequities Little Rock L.J. 479 U.Ark. and Cures,” Qualification: Causes Death and S. Abuses continue, short, (1987). agree I with D.L.Rev. 281 concurring Ramseur, Justice opinion O’Hern’s State v. su 339-43, pra, 106 N.J. at that inconvenience entailed in providing a non-death-qualified jury is fair and —one impartial guilt the trial of is not high price pay too —in vindicate constitutional interests.

B. challenges, Defendant under the sixth and fourteenth amend- Constitution, I, ments United to the States 10 of Article § Constitution, Jersey New this supervisory powers, Court’s the trial court’s refusal excuse for juror cause Kurlowicz. Kurlowicz, claims, defendant was “unable to assure the court proposed he could all mitigating factors and consider impartially guilt punishment;” decide the issue as a result Kurlowicz, of the trial court’s refusal to excuse defendant argues, peremptory challenge he was forced to exercise impartial jury. was denied his to an The Court now rules juror this should excused for but been cause that no have reversible error ensued defendant because had exhausted peremptory challenges. Ante 154. I dissent from this determination. 152-54, the majority,

As recounted ante at Kurlowicz initially both opposed capital punishment denied that he in all every person situations and that he favored it for convicted of acknowledged capital murder. belief punishment He his “justified cases,” feelings in certain denied but that his about

199 guilt. his to penalty influence deliberation as the death would indi- However, questioning answers that the defense’s elicited capital punish- strong inclination favor of cated Kurlowicz’s he consider also indicated that would ment. While Kurlowicz mitigation and that he could punishment, factors death, reverted to return a sentence less than Kurlowicz against” very difficult to vote position that he would “find it The “cold-blooded.” where murder was death apparently cause refused to excuse Kurlowicz for trial court his not be juror indicated that decision would because result the defendant way “automatic” “one or other.” As a challenge exclude peremptory a was forced exercise Kurlowicz. Ante at 153-54. Illinois, 88 S.Ct. Witherspoon v. 1770, U.S. 510, 20

In 391 L.Ed.2d (1968), Supreme held unconstitutional 776 Court capital those “who system selection excluded against capital religious scruples expressed conscientious Id. at principle.” punishment opposed and those who it in all 20 L.Ed.2d at 88 S.Ct. 520, 1776, 784. The added that at Court challenged “they for if would potential jurors could be cause automatically against imposition capital punish- vote might developed at regard any ment be without evidence 21, Id. at 522 88 S.Ct. 21, 20 at n. at n. L.Ed.2d the trial.” 1777 original). (emphasis in 785 n. 21 substantially

Subsequent Supreme Court cases modified capital punishment. applied opponents of principles those as Texas, 448 2521, Adams v. U.S. S.Ct. 65 581 L.Ed.2d Witt, 469 U.S. S.Ct. Wainwright v. (1980); Ramseur, 255-57, (1985). at L.Ed.2d clari- death-qualification for as adopted this the standard Court Wainwright v. Witt. modified in Adams v. Texas fied may challenged juror standard is that “a ... new those punishment on cause based his views about [if] performance of substantially impair the prevent or views would instructions and juror in accordance with his his duties as Adams, 2526, 65 100 S.Ct. at supra, U.S. oath.” 200 581; Witt, 420-22, supra,

L.Ed.2d at see 469 atU.S. 105 S.Ct. 850-51, 83 L.Ed.2d at 849-53. adopts majority The now the Adams-Witt modification of applied as to Witherspoon proponents capital punishment. of — Oklahoma, 152; U.S.-, Ante at see Ross v. 108 S.Ct. (1988). agree 80 I L.Ed.2d with this I determination. agree juror’s further with the that in this Court case view he find impossible” that would it “almost return to a verdict accompanied less than by rape death the event of a murder suggests sufficiently capacity that his credit evidence in mitigation impaired,” be “substantially would and that he should have been for excused cause. Ante at 154. however, I disagree, ruling with the Court’s that “the error “ view, was my harmless.” Id. at 154. In ‘the denial of right peremptory challenge of is the denial aof substantial ” right.’ (1979) v. Singletary, (quoting 80 N.J. Wright Bernstein, (1957)). v. N.J. In State v. Singletary, the Court held that trial court’s decision not to erroneous, juror question exclude the was not and thus did Thus, not reach the contention that the error was harmless. the Singletary majority no analytical established framework of disposing for this issue. Court,

Two joined by members this Hughes, Chief Justice dissented, however, from the Singletary majority’s conclusion that trial court’s refusal to juror excuse the was cause error; accordingly, question both members reached the reach, majority unnecessary found namely, whether the trial court’s error was harmless. Justice Clifford offered this analysis: whether answer to the error I question harmless] lies, think ... [The in the jury one to the attaches attainment a fair and importance impartial I available to achieve that end. tend to process view ... as process more than a to be tried fair considerably procedural formality. aby Wright “jealously guarded,” is a “fundamental” one impartial (1957). 23 Bernstein, are Our rules albeit carefully, imperfectly, designed empaneling greatest to assure the of a that to the extent possible

will reach its verdict on the evidence with absolute fairness and complete is afforded such as this one defendant in a criminal case Hence impartiality. good reason, venireman to excuse peremptorily any opportunities twenty —for infringement all____ Any diminution or no reason at reason, a bad opportunity deprives granted as upon legislatively fair defendant of permit. agree, argument our rules which I is trial as with here, Defendant’s grant springs legislative of twenty from the to relief his ... entitlement [Id. right at 71 challenges which he was denied. thereto, his and peremptory added).] dissenting) (emphasis (Clifford, J., J., (Handler, dissenting). While the at 79-81 also id. See indicative challenges is without doubt peremptory of exhaustion assumes, follow, majority as the simply does not prejudice, it of automatically challenges peremptory failure to exhaust that the Indeed, given the nature of prejudice. of precludes a claim Clifford, the issue by Justice challenge as described peremptory juror is harmless refusal to excuse a erroneous of whether the has exhaust- exclusively on whether a defendant depend cannot for this. are two reasons challenges. There peremptory ed his juror on a challenge is “wasted” First, peremptory every time cause, calculus is altered for have been excused who should right the defendant’s panel and to the rest of the respect with abridged. As challenges is complement of his full analogous in an explained, has of Missouri Supreme Court “ jury is impartial by tried an context, right to be ‘Purity peremptory his may covet that an accused zealously guarded so an sees fit---- as he alone challenges “spend” [I]f them objectively jurors panel full presented with a is not accused peremptory his he exercises qualified before demonstrated as pro- challenges is peremptory challenges, given his number as he alone “spend” them portionately reduced ” Morrison, 557 v. accordingly impinged.’ State is sees fit Thompson, (Mo.1977) (quoting v. State S.W.2d Brown, 496 So.2d (Mo.App.1976)); S.W.2d right); accord (loss is denial (La.1986) peremptory 265-66 (Mo.App.1981). 490, 492-93 Ealy, 624 S.W.2d State v. noted, to a speaks analysis, it should The Missouri Court’s mandated, and is system jury” “struck in which a context with challenges can be exercised peremptory in which therefore some jury composition.1 idea of the overall The force of the logic where, Missouri Court’s case, redoubled as in this peremptory challenges are exercised with no sense of the Because, jury composition. case, overall in this the peremptory challenges by had to be exercised the defendant and the State immediately potential juror qualified after the by for cause judge, the trial the defendant was perempto- forced to use his being compare potential ries without juror able to all the potential jurors qualified other who were for cause. Each peremptory exercise of a danger thus carried the poten- that a juror qualified tial who would be during cause later the voir dire could not be removed a peremptory because of an earlier use of the peremptory challenges. Further, the defend- intelligently weigh ant could not potential each juror against others, making the exercise peremptory of a challenge a more significant decision than in jury system. sum, a struck defendant in a jury system non-struck must treat each use of a peremptory potentially as Hence, his last peremptory. the fact that the defendant did not use all of peremptory challenges import. is of no case,

In the context of this Justice analysis, my Clifford’s in view, controls “[a]ny this issue: diminution of infringement or upon legislatively granted opportunity exercise a full [to complement peremptory of challenges] deprives defendant of as fair a trial as our permit.” rules State v. Singletary, supra, 80 N.J. at 71. This conclusion is by unshaken the United States Supreme Court’s recent Oklahoma, retrenchment in Ross v. Ross, supra. In the Court held that the trial court’s erroneous failure to excuse for juror cause a in biased favor of the death jury system potential 1In a struck juror the voir completed, dire of the is challenges by judge, for cause are venireperson decided the trial and the is qualified then for service in the preliminarily instant case. All of the qualified venirepersons panel subject return as a peremptory and are then to challenges by prosecution the opportunity defendant and who have the peremptory challenges light exercise these composition of the total qualified jury panel.

203 error, despite the defense harmless fact the challenges had to peremptory its of and exhausted allotment question. readily is juror use one of them to excuse Ross terms, however, distinguishable reaching for in its on its own result noted that “it is for determine the Court their peremptory challenges number allowed and define exercise,” emphasized purpose and manner their provides nine “although Oklahoma a defendant with qualified by require challenges, grant this is peremptory challenges use to cure ment that the defendant must those excuse by jurors refusals the trial court to erroneous — at-, New at 2279. law of cause.” U.S. 108 S.Ct. Jersey than in this protective is far more that of Oklahoma is, holding if case respect anything, consistent with the law right is reversible error impairment that “denial Alabama, prejudice.” 380 showing without a Swain v. U.S. 202, 824, 835, 759, (1965). 772 See 85 13 L.Ed.2d S.Ct. (Handler, J., dissent Singletary, supra, 80 N.J. 82 State v. (“the range of choice ing) denial to defendant of full challenge jurors by the allowance of the accorded error”); Pereira, reversible State v. peremptorily constituted (citing State v. Ham N.J.Super. (App.Div.1985) mond, appli (App.Div.1969)). The 589-90 N.J.Super. questionable case even more cation of Ross to this becomes a from the represents dramatic retrenchment because Ross ago Gray Mississippi, just year view a taken Court (1987). U.S.-, L.Ed.2d 622 It thus S.Ct. as matter of highly it be followed problematic that should majority of the Court Gray law. state constitutional argument erroneous “unpersuasive” that the rejected as death-scrupled juror was harmless for of a exclusion cause challenge it could have peremptory a the State retained because my in (correctly, juror. the Court stated used to excuse the As composition view) inquiry relevant is ‘whether Gray, “the have affected possibly been jury panel of the as a whole could ” at-, at 107 95 L.Ed.2d by error.’ Id. S.Ct. the ... 204 Estelle, (5th Cir.) (concur (quoting

637 v. 58 Moore 670 F. 2d ring opinion), denied, 458 102 cert. U.S. S.Ct. (1982)). contrary position, 2d The L.Ed. Ross Court’s fo cusing on the exclusively composition/impartiality actual of a given jury, ignores the simply process-related argument due “everyone judge that the trial could concedes not arbitrari ly away take peremptory challenges. one defendant’s Yet, Oklahoma, happened inis effect what here.” Ross v. — at-, supra, (Marshall, J., at U.S. S. Ct. dissent Brennan, ing, Blackmun, Stevens, JJ.). joined by question exhausted, peremptories of whether or in were what used, irrelevant; they order were is as therefore Justice Mar out, points question shall is “a not whether defendant has any particular panel,” to venire or but whether a to “right procedure defendant’s a selection by untainted J., (Marshall, constitutional error” has been Id. vindicated. dissenting); Singletary, supra, see (Clifford, J., dissenting).

The second reason that the defendant’s failure to exhaust challenges peremptory preclude should a claim prejudice is that the this place error in case took in the context of death qualification. qualification guilt to the prior phase Death nec- essarily complement peremptories reduces a defendant’s by requiring prospective juror’s possi- defense counsel to assess a ble bias as to punishment addition to the usual assessment possible as guilt. Compounding to as to impingement bias this moreover, right,” defendant’s is “substantial the fact that process qualification guilt death bias by itself induces as to requiring potential jurors presuppose to it. See discussion supra Thus, at 191-92. even the defense counsel’s normal “spend” calculation peremptory challenge of when to a for possible guilt process bias as skewed a that induces bias guilt seeking as to bias as penalty. discover

In assessing juror whether court’s refusal excuse a harmless, cause is exhaust peremp- defendant’s failure to tory challenges is relevant in the ordinary consideration case. important I given singularly peremp- insist that function of tory challenges such an in error could be reversible even Moreover, ordinary principle case. that “death is different” an requiring thus enhanced standard review with a stricter reversibility, distorting standard for combined with the effects qualification, death leads me conclude that an erroneous prospective juror qualifi- refusal to excuse for cause on death grounds regardless cation should be reversible of whether a ultimately peremptory challenges. defendant exhausts his

II. Defendant claims that the suppressing trial court erred night defendant’s oral written confessions obtained on the claim, particu- of his The Court rejects arrest. defendant’s lar, that improp- the oral written confessions were obtained erly question- after his defendant’s assertion of to cut off 140-42. ing. Ante at

A. important opinion. The facts are recited in and are the Court’s Ante at 131-33. interrogation Defendant’s custodial com- p.m. Questioning interrupted p.m. menced at 5:38 at 7:15 p.m., continuing and resumed at 7:35 until At p.m. 8:20 point remained approximately defendant silent for five minutes. found, p.m., At 8:30 as the trial to lie court defendant asked happened. down so he could think what had Defend- about hour, placed brought ant was a cell for an then to the back interrogation undisputed room. It is was not defendant time; rights nevertheless, reissued his Miranda at this interro- gation thereafter, Shortly starting p.m., resumed. at 10:05 began p.m. defendant to incriminate himself. At 10:55 police typed commenced take a statement from defendant concerning then Only his involvement. was defendant reissued warnings. “yes” his Defendant checked on form Miranda rights. waiving completed The statement was Miranda signed the 11:52; every page and defendant read and initialed page. last that, following silence for contends his actual

Defendant minutes, p.m., lie down and request, his at 8:30 five about right happened was an invocation of his think about what had by bringing him questioning, and that back to cut off readministering warnings interrogation his Miranda without assertion, in “scrupulously honor” that police the failed to 96, 103-04, 96 Michigan Mosley, of v. 423 U.S. S.Ct. violation (1975), Hartley, v. 103 46 L.Ed.2d 321 confessions, therefore, (1986). subsequent defend- 252 His N.J. argues, suppressed. should have ant been Arizona, 1602, 16 In Miranda v. 384 U.S. 86 S.Ct. that, (1966), Supreme of the 694 the Court held because L.Ed.2d interrogation, suspect inherently coercive nature of custodial rights apprised must of his to remain silent and to have an interrogation presump- attorney present. Because custodial is coercive, given explicit in tively any statements the absence of inadmissible; conversely, warnings were held silence after explicit warnings require held to an end to issuance of was interrogation: warnings given, If have been is clear. the individual Once procedure manner, any during questioning, indicates in time to or that he at any prior cease____ interrogation to remain must statement taken silent,

wishes [A] privilege after invokes his cannot be other than person product U.S. S.Ct. at at 473-74, 1627-28, subtle or otherwise. [384 compulsion, at L.Ed.2d 723.] open question of “under what circumstanc- Miranda left interrogation” es, any, may if the authorities resume when the right Hartley, supra, v. to silence is asserted. State admissibility Michigan Mosley, supra, at 263. Under “the person custody in after the has decided obtained statements depends ‘right to cut off remain silent ... on whether ” 102-04, questioning’ ‘scrupulously honored.’ at was U.S. 325-26, meaning and 46 L.Ed.2d at 320-21. The S.Ct. requirement explored by scope “scrupulously honor” was Hartley, supra, 103 N.J. 252. We held this Court State v. warnings any inculpatory absence ... renewed “[i]n given response police-initiated statement custodial interro- gation right after silence has been invoked inadmissi- ble.” Id. at 256. dispositive question, then, light

The Mosley and Hart- is whether ley, request defendant’s to lie and think down about happened an what invocation of his to cut ques- off was, tioning under If it Miranda. then the failure of the interrogating police warnings officer to renew the an hour later brings this proscriptions case within the of Hartley. explicit quite Miranda Court was defendant’s overt, request questioning to cut off does not have to be an rights; clear or obvious assertion of his the Court stated warnings given have been ... the individual indi “[o]nce [i]f any silent, cates ... he manner wishes to remain interrogation 473-74, cease.” must 384 U.S. at 86 at S.Ct. 1627, added). 16 723 (emphasis L.Ed.2d at Substantial case law of range illustrates the behavior that is sufficient to alert right questioning authorities that a to cut off has been invoked. Randall, 948, 955, 118, People 114, In 1 v. Cal.3d 464 P.2d 83 658, (1970), Cal.Rptr. 662 Supreme California Court stated strictly may limit the suspect manner which a “[t]o privilege, assert to demand that it be invoked with unmistakable ... would clarity prophylactic subvert Miranda’s Accordingly, intent.” that Court has held that words or which conduct inconsistent with a “reasonably Any appears present willingness on the of the to discuss his case part suspect freely completely with be held to to an of ...” must amount invocation [citation omitted] police privilege. v. Burton, his Fifth Amendment 6 491 P.2d [People 375, 382, CW.3d (1971).] 797, 1, 99 5 CalRptr. 793, (5th Hernandez, 1362, See also United States v. 574 F.2d 1368 Cir.1978) (refusal cooperate with attempts to elicit state rights); held Clayton, ments an invocation of United v. States 204, F.Supp. (E.D.Wisc.1976)(failure 1 407 205-06 n. to answer question following warnings issuance of Miranda held an invo 249, Nicholas, rights); People Cal.App.3d cation of 112 v. 208 497, (1980) off

267-68, (requests to turn Cal.Rptr. 506-07 an invocation privacy held tape recorder and for assurances 60-63, 40, Williams, Cal.App.3d rights); People v. 414, (1979) (defendant’s that he statement Cal.Rptr. 425-27 say do or held an didn’t know what to confused and was State, 21 right questioning); cut off Law v. invocation 13, 34, (1974)(hospital statements .2d 872-73 Md.App. 318 A get happened” “I want to treated” you “I tell what but that will any rights); an invocation of to talk more held and didn’t want 640, 648, 783-84 Rissler, S.E.2d 165 W.Va. v. I won’t now give you “if I a statement (statement that (1980) rights). held an invocation have no shot” State, (Tex.Cr.App.1985),cert. Phillips 701 W.2d 875 S. (1986),the L.Ed.2d denied, 106 S.Ct. 477 U.S. setting factual Appeals, faced with a Texas Court of Criminal case, analyzed of this the issue as arguably similar to that follows: “in manner” first we must address whether appellant any The question right first asked whether he his to remain silent. When invoked appellant he stated that he "wanted a little time" offense, wanted to discuss given matter. Prior to this think about the had been statement, appellant warnings

Miranda We conclude that this on three occasions. request separate [Id. right to remain silent at that time. 891.] was an invocation of appellant’s contrary. position Its single not a case to the The Court cites an “lie and think about it” was not request is that the down indicates that “the to silence. Court invocation issue____” Ante at specifically address that trial court did not, Rather, that defendant did until this 139. it stresses the trial court was not asked to appeal, press this issue and that To at 139-42. Ante issue. on this decision its focus majority’s conclusion rests on the defendant’s extent that the below, argues per- Clifford pursue to the issue Justice failure say would suasively is unthinkable that this Court that “[i]t from urged finding a of fact different because a defendant that court, defendant therefore could the one made the trial support legal argument on findings to rely on the court's J., It is worth (Clifford, dissenting). 186-87 Ante at appeal.” moreover, (I) noting, Bey similarly- that State v. defendant argue police that failed to below his indication to that “he did (“I saying nothing”) not want to talk” wasn’t about the Alston right questioning; murder was invocation his off an to cut vindicating that fact has not deterred this Court from defend- (I), right ant’s and it Bey should not bear on this Court’s Nevertheless, decision in this case. Court somehow able years later to this record “beyond five view and determine that peradventure ... this defendant did not intend cut to off questioning remain silent.” Ante at 140. I do not see how. acknowledges

The Court that defendant testified that “I saying nothing,” argues language wasn’t but that this means having that defendant denies asked to lie The down. Court utterly expression may simply fails to consider that defendant’s ambiguous; request have been it need not have been either a request remain silent or a to continue. I fail to share the dogmatic police Court’s conclusion no “reasonable officer” request could have construed the as one to remain silent. Ante at 141. is, however, point expression if even defendant’s

could understood as no more than a desire for some time to get story straight talking police, before he continued to the questioning it a sufficient indication a desire that cease right questioning. and thus sufficient to invoke his to cut off State, 891; Phillips supra, State, 701 S.W.2d at Law v. supra, 318 A.2d at 872-73. As this Bey Court noted State v. (I), 45, 64-65, of courts overwhelming majority “[t]he agreed ‘any have declaration desire ” terminate inquiry contact or ... should to invoke the suffice’ Israel, questioning. (Quoting cut off W. LaFave & J. Criminal 6.9(e) (1985) added)). (emphasis Procedure at 310 § Taking finding the court’s of fact at face value—that “at 8:30 p.m. requested permission lay the defendant down and to

210 com- happened” that the case law believe think about what —I right cut had invoked his to pels the that defendant conclusion that, reason, for I it is whatever questioning. think clear off time; questioning to cease at that the the defendant wished right, implicated police’s and it that was his constitutional right. duty honor scrupulously to that constitutional expression “ambiguous,” if is viewed as Even the defendant’s Hartley, v. rights. it must be considered an assertion 263, 278, citing supra, Kennedy, N.J. State v. N.J. 103 at 97 (1984). is police Permissible conduct such circumstances 288 asking “questions designed clarify to to whether a limited silent.” Christo right his remain suspect intended to invoke Fla., petition Cir.1987) pher v. State (11th 824 F.2 d 842 cert. (citations omitted). As this Court 29, 1987 October filed (1984): Wright, 120 State v. N.J. n. 4 noted arguably [Wjhere to an makes a which amounts assertion statement suspect interrogating agent recognizes of his Miranda rights and that the state- regard questioning is of that his with construction, ment susceptible investigating cease and he should then crime he should immediately inquire Only as to the correct statement. interpretation suspect if invoking rights suspect that not his should makes clear he is Miranda questioning substantive be resumed. Riggs, Id. United States (quoting 537 F. 2d n. Fussell, quoted Super. 174 (4th Cir.1976), in State v. added). (1980)) (emphasis findings The trial court’s additional dictate conclusion scrupulously to remain silent defendant’s p.m. police 9:30 honored. The court found “at about again if he returned to the cell and the defendant was asked anyone, negative.” he No replied to contact wanted asked; questions designed clarify defendant’s intent were no fresh set of Miranda warnings Interrogation was issued. Miranda resumed, himself and defendant incriminated before warnings were readministered. was advised of

The trial court concluded “this defendant warnings prior giving he Miranda statement ... warnings____he signed the understood his Miranda Miranda voluntarily rights card and ... he his voluntarily waived ... findings, however, simply under These do Miranda.” not warnings address the the unassailable fact that Miranda were interrogation not readministered before the resumed was and to began defendant incriminate himself. case, majority purports companion

The to examine (1), Bey supra, involving suppression 112 N.J. the same hearing Cheryl Alston, to the relating murder of ante at expression and to in sharp find that in this case “stands later Cheryl contrast to his refusal to discuss the murder of (I), Alston.” find In Bey Id. I the contrast difficult to see. police interrogation defendant testified that when the resumed confession, after his “I saying nothing. initial wasn’t I was just sitting crying They there I was doing. whatever was ” asking questions. saying me I nothing. Bey wasn’t State v. (I), supra, (emphasis original). police 112 N.J. at 61 The they interpreted officers recounted that behavior defendant’s as an indication that “he did not want discuss it.” Ante at 139- added). (emphasis The holds Court that this behavior manifested an invocation questioning, to cut off regardless theory of defendant’s failure raise this below. “contrast,” case, By Ante at 143-45. this defendant was “requested go lay asked he think whether down and about answered, happened,” “Right. saying what I wasn’t noth- me, ing, question yeah. and the was asked and I said I was cell, question go taken to did lay but was asked me. I question (empha- down. But me.” asked Ante at added.) testimony, sis trial The court did not credit this but rather believed the officers who testified that “[the defendant] down____” lay asked if he be able about it would to think adopts finding Court now trial court’s that defendant it, requested points to lie down and think but to the fact about press that defendant this issue below and holds that the did “supports beyond peradventure record conclusion this questioning defendant did not intend to cut off and remain silent.” 140. Ante at comparison of the two confes-

A close circumstances reveals, however, they are alike than different. more sions instances, testimony communicated his In defendant’s both (“I hostility questioning, language and in identical wasn’t to the nothing”). Bey (I), “did not saying defendant want it,” case “he asked if he would be able to discuss while in this it;” lay down the officers and think about both instances manifesting interpreted defendant’s behavior as a desire not to words, purport of defendant’s interrogated. In other asking testimony police him in both contexts was that were in- nothing;” in both saying questions, he “wasn’t and that stances, posture to police understood the defendant’s be a time. In neither questioning resistance to further case many state in his did defendant below so words that behavior right questioning. to cut off constituted an invocation difference, therefore, is in this principal that case court specific finding crediting police's testimo- below made a fact requested permission lay to ny p.m. 8:30 defendant “[a]t happened____ down and to think about what At about 9:30 police again p.m. the returned to the cell and the defendant was anyone, replied if he asked he wanted to contact and negative.” really Are that a different result we to believe if, (I) indicating Bey would have obtained in instead of “that he words, many not it” in did want to discuss so defendant had by asking communicated that sentiment to lie down and think it? about form together,

Read the Court’s results exalt over substance defendants, require atmosphere inherently coercive language interrogation, to draw distinctions of law and intimately validity of even those familiar with which troubles Israel, Crim.Proc., 6.9(e). the case law. LaFave & J. See W. § something attempted he Bey Did Marko mean different when to p.m. he stop questioning at 8:30 from when said he did not difference; to I he saw a I want talk at 12:20a.m.? doubt that I do know that not. Hartley, supra, rule of v. bright-line

Under the the Miranda police to readminister of the the failure may make suspect that a “[A]ny statement warnings is fatal. honored,” scrupulously right silence has not been after his to held, unconstitutionally compelled as a matter “is the Court law____” Thus, contempla is within the 256.2 this case Id. at interroga that authorities “cease command Hartley’s, tion of until a new request and ... not resume suspect on his tion of a upon the accused given, impress warnings has been set of and that he need silent is still effect right to remain that his Id. at 287. by his own choice.” speak unless it be Cf. scrupu State, (rights at 891 held supra, 701 Phillips v. S. W.2d “a little time where, affording defendant after lously honored matter,” investigator the Mi reissued think about the remain of his warnings reminded defendant randa silent). the contention unnecessary to deal with finds it

The Court effect. To given retroactive Hartley should not be law, federal based on Hartley extent Griffith (1987) 93 L.Ed.2d 107 S.Ct. Kentucky, 479 U.S. pending retroactively all cases applied that it be commands Stever, 107 N.J. decided. State v. appeal when it was See on cert, 548-53, U.S.-, 348, 98 L.Ed.2d denied— 108S.Ct. with the Moreover, not a clear break (1987). Hartley is such as principle of cases simple extension past, but the State holding that Kennedy, supra, N.J. v. State ambiguous request “a defendant's must honor —to —however interrogation.” terminate post-warning this murder subsequent confessions to the defendant’s 2Even (I) Bey as be inadmissible focus in would that was the

and to the murder questioning resumption and the Hartley. Between the under "tainted" bag" warnings p.m. cat out of the defendant let "the at 10:55 issuance of new event, interroga- involvement, any admitting Hartley, 103N.J. at 281-82. process,” at 279-81. id. upon was "one continuous defendant’s return tion short, constrained, defendant’s in to conclude that I am interrogation stop constituted an invocation request to have the silence, subsequent right and the failure of the to readminister the Miranda warn- interrogating police officer right to remain silent under the fifth ings violated defendant’s against privilege state-law self-incrimination amendment and Hartley, supra. v. I have ex- under the standards State cases, my procedure that our criminal pressed, prior in concern may hyper-technical by become constitutionaliz- jurisprudence essentially prophylactic ing the intricacies of rules. See State (1987)(Handler, J., Novembrino, concurring) v. exclusionary (arguing that the rule should not be read into the constitution); Hartley, supra, v. 103 N.J. at 288 state State J., (Handler, concurring dissenting part) (explaining that police’s warnings reissue after invoca- failure to Miranda automatically preclude to silence should not tion of convinced, right). waived his I am issue of whether defendant however, my conclusion this case defendant’s suppressed reading a faithful confession should be follows from moreover, that, I strongly, of the case law. I believe as stated 106-07, Biegenwald, supra, 106 N.J. at our estab- abdicated, principles embody- lished should not be and the rules finessed, in ing principles those should not be the one context apply rigorously, namely, agree they where all should most rely upon life at stake. I do not need to where a defendant’s an enhanced standard of review with its stricter standard for issue, reversibility in the context of this but would note that the principle guides applicability this standard’s strongly support of this issue. I would there- appeals reversal conviction, upon fore defendant’s which was based reverse unconstitutionally compelled confession.

III. important objected There another issue. Defendant remains during penalty phase to the trial court’s instruction permitted aggravating factors. trial that redouble

215 argues jury Defendant that the trial court failed to instruct the c(4)(c), assault, involving aggravated that factor the elements of depravity, sup- torture or could not be based on the evidence porting c(4)(g), involving felony factor the commission of a murder, conduct, i.e., because the same evidence or the sexual victim, supports redoubling assault of the both factors. a Such aggravating twice, by using of factors the same evidence argues, corrupts balancing process by making defendant a appear “aggravated” murder more than it was. Court rejects argument. this my opinion, capital

In punishment system where a is struc- Jersey’s, overlapping aggravating tured like New factors that underlying balancing use the same evidence twice distort the process. The trial court’s failure in this case to inform the that evidence of sexual assault could be considered and used to single factor, c(4)(c) only aggravating determine either c(4)(g), and could not in be considered connection with both factors, in redoubling statutory aggravating resulted of cir- cumstances, and constitutes reversible error. Jersey employs

New penalty its death scheme one of the capital broadest definitions murder the nation. This broad murder, appeared Georgia definition of which capital- statute, murder in Gregg Georgia, was held constitutional (1976), 49 only U.S. S.Ct. L.Ed.2d 859 because narrowing aggravating By effect circumstances. factors, application aggravating capital the class of murder- effectively sentencing. Georgia, ers was restricted before play any does finding aggravating “the of an circumstance guiding role in sentencing body in the exercise of its discretion____” 862, 874, Stephens, Zant v. U.S. S.Ct. 2733, 2741, (1983). 77 L.Ed.2d however, Jersey,

In New statutory aggravating circum- only stances function not to narrow class mur- ders, guide but also to in its determination of whether Moreover, imposed. the death should be these func- simultaneously. tions occur aggravating factors under Jersey’s capital New scheme narrow the definition of murder only in conjunction with—and not until—the ultimate determi- penalty separate nation of the death itself. There is no submis- aggravating guilt sion of stage by factors of the trial death-eligibility which determination of of the defendant is Hence, strictly viewed, made. realistically but the determina- penalty is, tion of the death is prematurely, undertaken death-eligibility before has properly been ascertained. I contin- clearly ue to stress that this should be held unconstitutional Ramseur, under our State Constitution. See State v. 106 N.J. (Handler, J., dissenting). at 384-94 appreciate To helpful this constitutional place vice it is Jersey noted, New statute in context. Jersey As the New statute, Georgia’s, like uses the broad definition of murder as “knowing purposeful” homicide and language statutory aggravating factors in Jersey’s New statute are explicitly Georgia’s. modeled Compare, on 2C:11-3 N.J.S.A. (1981). Because, with Ga.Code Ann. 17-10-31 Georgia, in § aggravating operate factors only to restrict the definition of capital offenses, murder and death-eligible narrow the class of guide discretion, and not to Supreme sentencer’s Court held that the invalidation aggravating of one factor would not invalidate a death sentence where aggravating other factors Stephens, were found. supra, Zant v. 462 U.S. 103 S. Ct. 2733, 77 L.Ed.2d 235. noted,

As Jersey, aggravating New factors are also used guide sentencing as a aspect determinations. In this New Jersey’s Georgia’s statute resembles not but Florida’s death penalty scheme. In Florida the definition of murder or death-eligible the class of statutorily homicides is itself nar rowed traditional degrees, leaving division into consideration of aggravating mitigating only guide circumstances sentence-recommending jury. discretion of the See v. Proffitt Florida, (1976). U.S. 96 S.Ct. 49 L.Ed.2d 913 respective Georgia approaches While the and Florida has Court, upheld by Supreme respectively, each Gregg been see Florida, supra and Georgia, supra, Jersey’s v. New Proffitt hybrid Georgia, death statute is a of these. Unlike statutory aggravating where consideration of circumstances narrowing serves the sole function of death-eligible the class of offenses, aggravating Jersey New circumstances serve the determining death-eligibility dual functions of and the death Florida, aggravating sentence. Unlike where factors are used discretion, only guide sentencing Jersey they in New serve to determine death-eligible. also whether the defendant Hence, aggravating Jersey factors under the New statute do duty; they double are used simultaneously to narrow the class capital guide of murders and to the sentencer’s discretion. In my opinion, Georgia’s defining capital method of the class of murders guiding cannot be combined with Florida’s method for sentencing discretion. scheme, Georgia’s overlapping doubling aggra-

Under or of vating factors problems was not believed to create real because aggravating only factors serve narrow the class death-eligible If the properly offenses. offense has been deter- death-eligible by aggravating mined to at be least one valid factor, aggravating existence other factors does not qualify death-eligibility; further properly once an offender has been determined for a valid reason to be includible as a “death- offender, eligible” unnecessary legally it is and therefore irrele- Thus, vant whether he could be included for another reason. law, Georgia’s aggravating under only factors are used in death-eligibility, process determine and this their number and irrelevant; weight they implicated in are are not as such Hence, sentencing determination. it is of no moment that these may aggregated.3 factors be explained by Supreme Stephens, supra, 3This was Court in Zant v. 462 862, 2733, upholding U.S. 103 S.Ct. 77 L.Ed.2d 235. In the death sentence scheme,

imposed Georgia "statutory aggra- under the the Court that reasoned may which, This be contrasted with the Florida scheme in as Jersey’s, weighing aggravating against New mitigat ing place sentencing Hence, factors takes stage. it is not factors, aggravating existence of but their number and weight, reason, that becomes determinative. For this under approach overlapping doubling of aggravating prohibited. State, factors is 783, Provence v. 337 So. 2d denied, 969, 431 U.S. (1976), cert. S.Ct. 53 L.Ed.2d (1977), Supreme the Florida prohibited Court the over lapping of the “murder occurred in the commission of the robbery” and murder pecuniary gain” “committed for factors. Acknowledging cases, “in some such as a larceny where rape-murder, committed the course of a (d) subsections (f) separate refer concepts” ... distinguishable, and are court insisted nonetheless that in the case robbery-murder of a “both subsections refer to the aspect same of the defendant’s crime. Consequently, one who commits a crime in the course robbery of a always begin will aggravating with two against circumstances (emphasis him — ” original). Id. Despite its earlier Dixon, admonition in State v. 283 So.2d (Fla.1973), cert. denied Florida, sub nom. Hunter v. 416 U.S. (1974), S.Ct. 40 L.Ed.2d 295 procedure “the judges followed the trial juries counting is not a mere vating play constitutionally necessary stage circumstances function at the legislative they persons eligible definition: circumscribe the class of for the 878, penalty." 2743, death Id. at 103 S.Ct. at 77 L.Ed.2d at 250-51. The Court noted, however, important stage is "[w]hat at the selection which [at imposition of the death itself is is an determined] individualized determination on the basis of the character of the individual and the circum crime," 879, 2744, 251; stances of the id. at 103 S.Ct. at 77 L.Ed.ld at Georgia provided statute by affording for this individualized determination circumstance(s) aggravating discretion —after the had defined the crime as death-eligible possibility and thus established the of a death sentence —to Thus, narrowing consider the case as a whole. because "the function has been properly by aggravating achieved in this case the two valid circumstances upheld by Court,” 879, Georgia Supreme 2744, id. at S.Ct. at 103 77 LEd.ld 251, unconstitutionality the federal court held that the of the third factor in validity Zant did not affect the of the death sentence.

219 aggravating X of circumstances and Y process of number circumstances, mitigating rather a reasoned number of but require imposition situations judgment as to what factual ...,” “pecuniary court held that motive at death Provence only the time of the murder constitutes one factor ...” effect, therefore, overlapping that the of factors would be State, 440 prejudicial. Delap 337 at 786. also v. So.2d See 1264, 104 1242, denied, (Fla.1983), So.2d 467 U.S. 1256 cert. (1984) 3559, (reaffirming 82 L.Ed.2d 860 Provence but S.Ct. felony involving holding previous conviction of “another person the use of violence” and “committed under sen imprisonment” aspect “do not cover the same tence of crime”); State, 331, (Fla. 2d 338 defendant’s White v. 403 So. 1981), denied, 3571, 1229, cert. 463 103 77 L.Ed.2d U.S. S.Ct. (1983) (finding support “capital 1412 evidence sufficient prevent arrest or effect felony committed to avoid a lawful factor, disapproving “use of these escape custody” an from but factor because “this same incidents” as a basis for another the rule in doubling-up aggravating circumstances violates (Fla.1981), ”); State, 973, 977 Maggard Provence 399 So.2d denied, 1059, 102 610, 70 (1981) cert. 454 U.S. S.Ct. L.Ed.2d 598 (murder burglary pecuniary gain over during and murder for 885, lap Provence). State, 407 under Francois v. So.2d Cf. denied, (Fla.1981), 1122, cert. 458 U.S. 102 S.Ct. (1982) (sentence upheld despite submission L.Ed.2d 1384 aggravating because overlapping and invalid circumstances circumstances; mitigating “[wjhere the consider no there were aggravating circumstances does not inter ation of erroneous weighing process there are no miti fere ... because with weigh, resentencing required”); gating circumstances to no Cir.1983), (5th cert. Wainwright, 721 F. 2d Henry v. (1984) denied, 80 L.Ed.2d U.S. S.Ct. (violation mitigating cir rule not fatal where no of Provence cumstances). Nebraska, Alabama, and California Supreme Courts of overlapping aggravat- that consideration of

have held likewise 220 stage

ing sentencing impermissible. factors at See Cook 1251, (Ala.1979) State, (“robbery” “pecu 369 1256 and So.2d niary gain” overlap, condemning “in effect twice factors Cook stealing money” pecuniary culpable for the same and so act— gain by judge cannot be considered trial under factor who sentence); Rust, 528, 538, statute determines State v. 197 Neb. 867, 874, denied, 434 912, 313, cert. 250 N.W.2d 98 U.S. S.Ct. 54 (1977) (where support same conduct could L.Ed.2d 198 both perpetrator’s identity murder to conceal the or murder for gain, pecuniary court held that “it is not reasonable to construe overlap the definitions such a manner as to make them and aggravating make the same identical facts constitute cir two cumstances”; element, important some “added different and purpose,” distinguish aggravating e.g., motive or must circum another); Stewart, 497, stances from one State v. 197 Neb. 522-23, (1977) (same). People 250 864 N.W.2d v. Har ris, 36, 62, 782, 798, 36 Cal.Rptr. Cal.3d 679 P.2d 448-49, denied, 965, 105 cert. 469 U.S. S.Ct. L.Ed.2d 301 (1984), Court, Supreme referring explicitly California to its scheme, similarity state’s statute’s Florida held that “the constitutionally objective focusing particu mandated on the larized circumstances of the crime and the defendant is under artificially cut when the defendant’s conduct is inflated multiple charging overlapping special circumstances ... having principal based on an indivisible course of conduct one purpose.” criminal Thus, proposition

The remains controversial. in Wiley v. State, denied, 906, 107 (Miss.1986), cert. U.S. So.2d (1986), 93 L.Ed.2d 278 the defendant S.Ct. made the argument pecuniary gain robbery familiar that the factors overlap, overlap corrupts balancing process. and that this Mississippi argument, majority noting dismissed this that it already had independent decided that the two factors were that, case, any only “the must find the existence of one aggravating circumstance to return a death sentence.” Id. fact, jury, aggravating 351. The had found two factors apart robbery pecuniary gain findings. “Thus,” from its concluded, repetitious aggravating the court “the failure of one remaining circumstance does not invalidate the two ... factors to reverse the death sentence.” Id. at 351-52. Justice Robert- acknowledged balancing process son’s concurrence that “the is performed not to mathematically,” but took issue none- Provence, analysis. Citing theless with this Justice Robertson argued prior holding that the cases the factors distinct did so “[wjithout offering either whisper why” by so much as a “ employing “bootstraps logic” robbery the that ‘the was com- ” doubts,” pecuniary gain.’ mitted for Id. at 357. one “[N]o moreover, largest “that the side with the number of ‘circum- practical advantage sentencing jury.” stances’ has a before the unreasoned, prior The Id. cases are in Justice Robertson’s view, they ignore because the structure of the statute: illogical is Our course because the structure of the act contem- present very circumstances____ eight aggravating distinct end, the the

plates fallacy recognize aggravated our rule is its failure to that murders are a defend- language. Regardless ant’s conduct, not of the label on the it, by statutory put taking aggravates murder. A defendant’s of the the victim’s is what money single, legally aggravate indivisible act may rationally defendant (emphasis original).] murder but once. at 358 in [Id. Dissenting Supreme from the United denial of States Court’s Wiley, emphasized certiorari in Justice Marshall likewise statute, particular requirement structure of the sentencing aggravating weighed guiding circumstances be discretion: jury on the fact found a third Court relied ... Supreme factor____

aggravating sentencing But under statute Mississippi capital aggravating against mitigating was instructed to balance circum- ... jury might While the of death if stances. have returned verdict even there aggravating had been one we cannot be sure what it would circumstance, only mitigating jury’s have done in view of the factors verdict presented; merely outweigh aggravat- mitigating are stated “there insufficient factors to ing circumstances.” 107 S.Ct. at U.S. at [Wiley Mississippi, 908-909, (citations omitted).] 305-06, 93 L.Ed.2d 280-81 reasoning expressed persuasive. I that the most find thus improper sentencing I am that it is satisfied for the purposes aggregate, overlap aggravating or double factors impli- these factors are on the same evidence and

where based leads, believe, inevitably cate the same conduct. This I to the currently conclusion that the murder statute as it is applied enacted and is irrational. It should be considered susceptible unconstitutional it is not of a because construction infirmity. application that can cure this If the Court limited the aggravating only weighing process factors to the conjunction sentencing, with the statute would fail to narrow offenses; death-eligible conversely, the class of if the Court weighing process by relegating were to invalidate the application aggravating solely narrowing factors the class offenders, death-eligible sentencing of it would leave the discre- wholly unguided. tion responds objections by permitting Court to these the factors,

overlapping aggravating long of so as the sentencer is “cognizant being prove made that the same facts are used to aggravating more than one factor.” Ante at 176. The Court emphasizes difficulty further that it sees no with the statute’s mechanics, according death-eligibility by to which is defined finding murder aggravating conviction and the of circumstanc- es, weighing aggra- while death-selection is a function of the of vating mitigating circumstances. at 177. Ante holding,

In so the in Court sanctions death cases what it proscribed ordinary has in the criminal context. denied, (1985), Yarbough, State v. 100 N.J. 627 cert. 475 U.S. (1986), 89 308 this S.Ct. L.Ed.2d Court con time, sidered for the first in the context of consecutive-sentenc discretion, ing aggravating mitigating the mechanics of the guide in circumstances listed 2C:44-1 to the court’s N.J.S.A. adopted discretion in imposing The Court as one a sentence. general sentencing its principle criteria the that “there should factors,” 644; counting aggravating be no double id. at even granting distinguishable Yarbough, factual context of I fail principle, to see the in justification permit difference or the for ting juries in capital aggravating cases to double-count factors preventing experienced sentencing judges ordinary while in this Equally important, Court doing so. cases from criminal resentencing Yarbough “certain of the in because for remanded in discretion whether court used its that the trial factors were, factors part, the same consecutive make the sentences degree of very has to establish Legislature invoked that the crime____” however, effect, is in what Id. at 645. That aggra- It allows an capital in a context. majority permits now eligibility, as factor, indirectly death establishes vating degree, to its of a crime determines as an element much sentence, do and to deliberation of the anew the considered Link, sentencing during deliberation. so Cf. den., (App.Div.1984), certif. N.J.Super. essence, is, element (where an

(1985) a fact of the offense crime, may not fact/element degree of the establishing the impose a sentence more aggravating factor to as an be used term). logic of Following the presumptive harsh than the death-eligibility— words, a determination Yarbough, in other factors that are be based on degree of the crime—should This sentencing discretion. again determine the not used murder guilt-phase if definition could be achieved the death eligible of those the class adequately narrowed however, conceded, guilt- majority has penalty; class, adequately narrow the itself phase definition does define sentencing factors to rely on the thus forced to and is Ramseur, supra, at 187-88 v. the offense. See State v. State in in objection, stated dissent I n. 20. renew Ramseur, capital murder definition of guilt-phase that by re- overbroad, narrowed and cannot be unconstitutionally id. sentencing, at 384-94 used to deliberate to factors course that at a minimum.the (Handler, J., dissenting), would add but overlapping aggravat- support cannot be used to same evidence ing factors. be held today would no doubt result

While the Court’s supra; Stephens, v. under Zant satisfy the federal Constitution S.Ct, -, Phelps, 484 U.S. v. see Lowenfield (1988), I require L.Ed.2d 568 believe this Court should guidance at sentencing discrete both the definitional and the phases. guides This Court should settle for a scheme defining sentencing by discretion which offense for sen- result, imposed. of this tence is to Short I that the believe resentencing jury permitted must not be to consider redoubled aggravating factors.

IV. reasons, For these several I would reverse defendant’s con that, only viction and sentence. I add I argued would as Ramseur, profess v. we to follow our own constitutional suitably conscience in matters addressed the State Constitu tion, persist cloning but constitutional it when comes to (Handler, capital punishment, J., dissenting), id. at 369-82 de spite Supreme the fact that the Court encouraged itself has states to deal with the death terms their own jurisprudence. Ramos, constitutions and California 992, 1013-14, 3446, 3460, U.S. 103 S.Ct. 77 L.Ed.2d (1983). It 1188-89 cannot be doubted that enduring we have and distinctive traditions and standards in the administration of justice truly independent application criminal call for the the State Constitution. I continue to believe that N.J.S.A. light 2C:11-3 should be evaluated in of those standards and traditions, and that such an evaluation finds the statute defi cient. reasons, foregoing

For all of the I respectfully dissent.- conviction, reverse, For sentence and affirmance of WILENTZ, POLLOCK, Justice remand —Chief Justices O’HERN, GARIBALDI and STEIN—5.

For reversal —Justices and HANDLER—2. CLIFFORD

Case Details

Case Name: State v. Bey

Court Name: Supreme Court of New Jersey

Date Published: Aug 2, 1988

Citation: 548 A.2d 887

Court Abbreviation: N.J.