State v. Koedatich

572 A.2d 622 JERSEY, PLAINTIFF-APPELLANT, STATE OF NEW v. JAMES KOEDATICH, JEROLD DEFENDANT-RESPONDENT. Argued April October 198 9 Decided 1990. Connor, Jr., Jr., Critchley, J. Assistant Joseph and Thomas Prosecutors, (Lee Trumbull, argued appellant the cause S. Prosecutor, attorney). County Morris Ruhnke, Counsel, Designated argued David A. the cause for respondent Slocum, (.Alfred Defender, A. Public attorney). opinion Court was delivered

STEIN, J. Koedatich, (1988), State v. 548 A .2d cert. — denied, U.S.-, (1989), 109 S.Ct. 102 L.Ed.2d803 we affirmed defendant’s for the conviction murder of Amie Hoff man but vacated his death sentence and remanded for a new penalty-phase hearing. appeal The issue on this is whether the resentencing hearing State can offer evidence at the aggra vating charged factors that were but in the first proceeding unanimously did not find to exist. The trial court concluded the State resubmitting was barred from those aggra vating granted factors. We the State’s motion for leave to ruling appeal that and now reverse.

I. On eighteen-year-old November Amie Hoffman was County from the Morris abducted Mall where she worked later, part-time. days police body Two discovered her in a tank Randolph water-retention located a secluded area of Township. Medical evidence that she been revealed had sexual- ly resulting police assaulted and then stabbed death. The investigation culminated in the arrest of James Jerold Koeda- County jury tich. October a Morris Koeda- convicted including of tich several offenses murder and sentenced him to death.1 trial, penalty phase charged

At the of four (1) previously factors: that defendant had been murder, 2C:ll-3(a)(l) 1In addition to the conviction N.J.S.A. and murder, (2), 2C:ll-3a(3); felony kidnap Koedatich was convicted N.J.S.A. of 2C:13-1; assault, 2C:14-2a; aggravated possession ping, N.J.S.A. sexual NJ.S.A. 2C:39-4d; weapon possession purpose, aof for an unlawful N.J.S.A. and weapon, N.J.S.A. 2C:39-5d. 2C:ll-3c(4)(a) (defendant murder, had N.J.S.A. convicted 1971); (2) second-degree in Florida in murder been convicted engaged was committed while defendant that the murder was flight commission of a sexual of or from the in the commission (3) 2C:ll-3c(4)(g); kidnapping, and N.J.S.A. assault detection, escaping purpose for the murder was committed 2C:ll-3c(4)(f); murder was out- and N.J.S.A. 2C:ll-3c(4)(c). vile, wantonly rageously and N.J.S.A. prior had a unanimously found that defendant The Amie Hoffman and that he killed murder conviction kidnapping. was a sexual assault course of other two unanimously respect to the agree unable to Special Form Penalty Phase Verdict aggravating factors. The jurors determined that of the twelve revealed that eleven vile,” wantonly eight deter- “outrageously and murder was escape detection.” committed “to that the murder was mined conviction and the subsequently appealed both the Defendant underlying Although affirmed the this Court death sentence. sentence, finding re conviction, we vacated defendant’s 548 A. 2d penalty phase. error in the versible erroneously court had held that the trial Specifically, 939. we outweigh the mitigating factors must charged jury that the impose a sentence in order for the court aggravating factors Further, held 2d 939. we Id. at 548 A. other than death. that the unani by requiring trial court had erred that the mitigating factors. Id. at mously find the existence for a new remanded the matter Accordingly, we 548 A.2d 939. hearing. penalty-phase of Intention the State filed a Notice September

In Eesentencing, in which it relied on Penalty at the Death Seek charged in the initial sen aggravating factors the four same resentencing that argued at Defendant tencing proceeding. 524 Biegenwald, N.J. this decisions State Court’s II), Biegenwald, 110 (1987) (Biegenwald State A.2d III), preclude (1988) the (Biegenwald A. 2d resubmitting State from “outrageously both the wanton and escape vile” and the murder “to detection” factors.2 The trial agreed, holding court that death-penalty those decisions barred charging the State from any aggravating factors at resentenc- ing jury that the in the penalty phase first unanimously did not find to exist.

II. Capital We that Act, note Punishment N.J.S.A. 2C:ll-3 (the Act), specific guidance question offers no on the whether unanimously factors not by found to exist sentencing at the proceeding presented initial can be resen- at tencing following prior a remand. Nor have our decisions concerning presentation resen- tencing specifically appeal. dealt with the issue raised this II,

In Biegenwald A. 2d we affirmed defendant’s conviction for the murder of Anne Ole siewicz, his but reversed death sentence because the trial court improperly had instructed in the phase. Ac cordingly, we remanded the ease proceed for a new ing, observing “[rjesentencing that cannot be considered dou ble-jeopardy where first sentence was a death sentence and the evidence was sufficient.” Id. at 524 A.2d 130. proceeding II, penalty-phase Biegenwald At the initial jury unanimously found the existence of two (1) previously factors: had defendant been convicted of murder, 2C:ll-3c(4)(a); N.J.S.A. that “the murder was vile, outrageously wantonly or inhuman in that it horrible murder, being 2Several months after convicted of the Hoffman defendant imprison was convicted the murder of Diedre O’Brien and sentenced to life case, unanimously did find ment. the O'Brien not that defendant previously been convicted of had murder Florida 1971. Based finding, collaterally estopped defendant also contended was from introducing resentencing. Florida as an conviction bar, ruling estoppel trial was court ruled that collateral not challenged appeal. on this 518 torture, mind, aggravated battery depravity or an

involved 2C:ll-3c(4)(c) (“c(4)(c)”). the victim.” N.J.S.A. We held proving barred the State from the principles of “aggravated battery” components the or “torture” existence of c(4)(c) resentencing aggravating of the circumstance at because support insufficient evidence the record those there was noted, however, components. A. 2d 106 N.J. at 130. We offering that the would not be barred from evidence State c(4)(c). aggravating mind” to factor “depravity of establish Id. 130. at 524 A 2d III, the Biegenwald A.2d aggravating the could as an

issue was whether State introduce hearing resentencing factor defendant’s conviction for Ward, the murder of William which was obtained after conviction. held admission of the Ward Olesiewicz We resentencing complied double-jeopardy conviction at clauses of both the federal and state constitutions and with 442. principles of fundamental fairness. 542 A.2d Id. opinion, guideline: As in that we this dictum offered sentencing jury rejects If the the first trial an specifically factor or an court finds that the State failed to establish sufficient appellate by original evidence the existence factor at trial, rejected factorf,] part jury, resentencing proceeding. [Id. at the at 542, cannot be used 542 A.2d 442.] III, however, Biegenwald Biegenwald II nor is dis- Neither Therefore, positive begin issue us. we our before analysis by considering question in the context of double- double-jeop we held the jeopardy jurisprudence. Because have ardy of the state and federal constitutions to be sub clauses coextensive, DeLuca, 98, 102, 527 stantially 108 N.J. State (1987); Dively, .2d 458 A .2d A State v. Barnes, (1983); .2d 303 84 N.J. 420 A (1980), proceed double-jeopardy with an overview of federal we pertaining issues. law recognized double-jeopardy that the Supreme Court has protec- clause of fifth amendment embodies three distinct tions for criminal defendants: against It a second same offense after protects acquittal. prosecution against a second for the offense after It same conviction. protects prosecution against And it for the same offense. [North protects multiple punishments Pearce, Carolina v. U.S. S.Ct. L.Ed.2d 395 89 23 711, 717, 2072, 2076, 656, (1965) (footnotes omitted).] 664-65 protections against jeopardy clearly pre double Constitutional acquitted clude the of a defendant who has of the retrial been charged. offenses he As the Court observed with which was States, 223, 184, 187-88, 221, v. 355 78 Green United U.S. S.Ct. 199, (1957): 2 204 L.Ed.2d State with all its resources and should not be allowed to make

[T]he power alleged to an individual for an offense, convict repeated attempts thereby subjecting compelling him to him to ordeal and embarrassment, expense continuing enhancing live in a state of as well as anxiety insecurity, though guilty. that even innocent he be found may possibility

Nevertheless, guarantee against it with the is consistent to defendant has succeeded in jeopardy retry double a who on trial obtaining reversal his conviction based errors: high granted to It would indeed for were accused society be price pay every to defect sufficient constitute from because immunity punishment any leading v. proceedings States [United reversible error in the conviction. (1964).] Tateo, U.S. S.Ct. 466, 448, 377 84 12 L.Ed.2d 451 463, has due to a defendant’s conviction been overturned Where evidence, however, principles of double insufficient 1, States, 437 98 Ct. prohibit retrial. Burks v. United U.S. S. 2141, (1978). 1 57 L.Ed.2d significance sought have to extend the accorded

Defendants particular imposition to the of a acquittal of a criminal offense 711, Pearce, supra, 395 U.S. sentence. North Carolina 2072, 656, the Court considered whether 23 L.Ed.2d S.Ct. retrial, sentence, on was greater after conviction imposition of a Reasoning “pow- that the double-jeopardy grounds. on barred may legally be was impose authorized” er to whatever sentence power” retry a whose convic- “corollary of the to- defendant prohibition Court held that the appeal, was aside on tion set imposition preclude the against jeopardy did not 2078, Id. at 89 S. Ct. at harsher sentence reconviction. explained the rationale for 666. The 23 L.Ed.2d at Court holding ultimately upon premise “rests original its that the has, behest, wholly conviction at the defendant’s been nullified wiped slate and the clean.” Id. at S.Ct.

L.Ed.2d at 667. unwillingness equate acquittals impo Court’s with the particular

sition of a sentence reaffirmed in was United States DiFrancesco, U.S. S.Ct. 66 L.Ed.2d 328 (1980). Rejecting arguments double-jeopardy purposes that for imposition “the ‘implied acquittal’ any the sentence is an sentence,” greater id. at 66 L.Ed.2d at upheld provision Organized the Court Crime granted government right Control Act that appeal “dangerous offenders,” special by the sentences of as defined 136, 101 437, Thus, that Act. at Id. S.Ct. at 66 L.Ed.2d at 345. two, because of fundamental distinctions between the the Court pronouncement has made clear that “the of sentence has never finality 133, acquittal.” carried that attaches to an at Id. 435, 101 S.Ct. at 66 L.Ed.2d at 343. unique penalty-phase

Due to the features of proceedings in cases, the Court has modified its view on the distinction sentences, resulting exception between trials and in an to the generally “clean slate applicable sentencing rationale” at Missouri, Bullington retrial. In U.S. 101 S.Ct. (1981), 68 L.Ed.2d 270 the Court considered whether a defendant who was convicted of murder and sentenced to life imprisonment bifurcated-capital proceeding could, in a after conviction, successfully appealing subjected his be to the death penalty by enacting on retrial. The Court observed capital-sentencing procedure that resembles a trial on the issue guilt, explicitly requires Missouri jury to determine prosecution “proved whether the has its case” for the death penalty: given The in this case was unbounded discretion to select an appropri- range ate from a wide authorized statute. Rather, punishment by separate

hearing was and was and the was choice held, both a required presented guide making between two alternatives and standards of that choice.

.521 recommend what it felt to be an Nor did the simply appropriate prosecution establishing the burden of certain facts It undertook beyond punishment. to obtain the harsher of the two alternative doubt in its reasonable quest hearing resembled in all relevant and, indeed, verdicts. presentence preceding guilt trial on the issue of was like the immediately respects issue of so defined It was itself a trial on the punishment precisely innocence. 101 S.Ct. at 68 L.Ed.2d at 278-79 statutes. at [Id. the Missouri (footnote omitted).] trial, imprisonment at the first to life By defendant “ ‘acquitted’ defendant of whatever was effectively 445, 101 impose the death sentence.” Id. at S.Ct. necessary to (citation omitted); see also Arizona at 283 at 68 L.Ed.2d 203, 211, 104 81 L.Ed.2d S.Ct. Rumsey, U.S. double-jeopardy prohibited clause (1984) (holding that judge resentencing, where seeking from original penal imprisonment life defendant to sentenced proceeding). ty-phase Arizona, U.S.

In Poland v. (1986), the contours of the the Court defined L.Ed.2d as it Bullington Rumsey analogy employed “acquittal” resentencing of an applied to the resubmission Poland, original trial. two brothers rejected at the guards attending killed the two cash-delivery van and robbed a dumped van; weighted sacks and placed the bodies were capital mur- defendants of juryA convicted both into a lake. charged two hearing, the State penalty-phase der. At had “com- that defendants statutory aggravating factors: receipt, expec- or in for the as consideration mitted the offense value”; and [something] pecuniary receipt, of of of the tation especially in an the offense had “committed that defendants sitting as judge, The heinous, cruel, depraved manner.” trial or “pecuniary gain” of the sentencer, to find the existence failed only to contract circumstance, believing applied it heinous, “especially the existence killings, did find but appropriate performing the cruel, factor. After depraved” or to death. sentenced defendants the court balancing procedure, the convictions Supreme Court reversed Arizona appeal, the On remanded proceeding the and guilt phase of in the due to error respect penalty phase, a new trial. With to the the court held support that there was insufficient evidence to the trial heinous, cruel, finding “especially court’s of depraved” the or aggravating factor. The court also held the “pecuniary that gain" aggravating not limited circumstance was to situations involving killings expressly contract and ruled that that factor resentencing. could be considered at subsequently capital Defendants were reconvicted of murder judge and sentenced to death. “pecuni- The trial found that the heinous, ary gain” “especially depraved” aggravat- cruel or ing present factors were in each appeal, defendant’s case. On Supreme again the Arizona Court found insufficient evidence to support heinous, cruel, the of “especially existence the or depraved” aggravating Concluding factor. that there was suf- support “pecuniary factor, ficient evidence to the gain” how- ever, upheld respective the court the death sentences. Supreme affirmed, observing United States Court that during sentencing hearing no first [a]t point petitioners’ appeal reviewing did either the sentencer or the hold the court that had prosecution its "failed case” that deserved death prove petitioners penalty. Plainly, sentencing judge did not for he the death While acquit, imposed penalty. sentencing judge relying

the Arizona Court held that erred in on Supreme heinous, cruel, “especially circumstance, it did depraved” not hold that the had failed to its case for the prosecution death prove penalty. 106 S.Ct. [Id. L.Ed.2d at 131-32.] holding, rejected argu so the Court defendants’ ment judge “acquitted” “pecu that the of them the gain” niary finding by circumstance not its existence sentencing proceeding, concluding principles initial of dou jeopardy resentencing ble did not bar consideration at of evi relating dence to that circumstance: reject argument, We the fundamental that a premise petitioners’ namely, alleged sentencer’s failure to find a circumstance particular constitutes that circumstance for prosecution always “acquittal” Bullington indicates purposes. is proper inquiry reviewing whether the sentencer or has court "decided that has prosecution We are not case” its proved appropriate. prepared Bullington capital sentencing to extend and view the further hearing as a set mini-trials tlie existence each circum- analogy Bullington would on which is Such an push stance. approach breaking based point. past gain” judge’s rejection that the trial hold, We therefore, “pecuniary this was not an circumstance case “acquittal” of did not consid- double its circumstance purposes, foreclose for reviewing reviewing did court. because court Furthermore, eration by legally justify to of the death not find the evidence insufficient imposition The Double there was no death court. by penalty “acquittal” penalty, hearing sentencing not second did foreclose a Clause, therefore, Jeopardy 1755-56, “clean rule 106 S.Ct. at 155-57, which the slate” applied. [Id. omitted) added).] (footnote (emphasis at 132-33 L.Ed.2d Poland, no Although three dissented member Justices argument adopted principles defendant’s Court charging jeopardy preclude the State from at resentenc- penalty- not exist at the initial ing aggravating factors found to Therefore, proceeding.3 double-jeopardy federal phase under doctrine, has sentenced to death where a defendant who been having appeal, the sentence overturned on succeeds applies slate” of Pearce new “clean rule permitted proceeding. The State is resubmit proceeding at the even if those factors were new initial-sentencing provided proceeding, there found at original sustain the evidence the record to sufficient Arizona, U.S. sentence. Poland originally sen- Where defendant was 90 L.Ed.2d 123. not, however, may the State con- imprisonment, to life tenced penal- seek principles jeopardy, of double the death sistent with prove “to its case” ty on remand the State failed because dissenting in which Justices Brennan 3Justice Marshall filed a opinion joined. the defendants in Poland dissenters contended that Blackmun subjected proceeding their death a second because could not be penalty proceeding were on an factor improp- in the first based sentences judge. 1756-57, S.Ct. at L.Ed. at Id. at relied on the trial erly by whether Thus, never addressed 134-35. the dissenters proceeding rejected at one the fact-finder penalty submitted to but properly hearing. second be resubmitted at a could proceeding. Missouri, that sentence in the first Bullington 430, 1852, supra, 451 101 U.S. 68 L.Ed.2d 270.

III. We have on willing several occasions demonstrated a provisions to our ness read state expansive constitutional more ly counterpart than the federal necessary provide where our protections. Novembrino, citizens with enhanced See State v. 95, (1987); Williams, 105 39, N.J. 519 A. 2d 820 State v. 93 N.J. (1983); 2d Right 459 A. 641 Byrne, to Choose v. 91 N.J. 450 (1982); Hunt, A.2d 925 State v. N.J. A.2d 952 (1982). Because no distinct tradition of state-constitutional requires departure issue, doctrine from federal decisions on this we decline “the capital sentencing to view hearing as a set of aggravating mini-trials on the existence each of circumstance.” Arizona, Poland v. 476 U.S. 106 S.Ct. conclude, therefore, L.Ed.2d 132. We that a unanimously failure to determine the existence of a statutory aggravating “acquittal” factor does not constitute an factor, barring presentation its at resentencing on double-jeopardy grounds. Act, Capital 2C:ll-3, Punishment governs N.J.S.A. which

the penalty state, administration of the this for “calls punishment bifurcated trial which is separate determined in a proceeding following guilt.” the establishment of State v. Ramseur, (1987). A.2d 188 The capital- sentencing delegates jurors scheme the sensitive task of determining whether defendant of capital convicted murder Indeed, will live or die. the fact-finder’s determination in the penalty phase capital proceeding focuses on whether death appropriate punishment is the for the ex- defendant. As we plained 123, Bey, 548 A.2d 887 II), (Bey through jury discharges vehicle which the its is [t]he the determi- responsibility aggravating mitigating balancing

nation the existence of factors and the against jury obliged of the former the the latter. In the phase, aggravating jury the factor or factors. The first, existence determine, any aggravating must at least exists before the death find that one factor penalty * * * be If the “finds that no factors exist the may imposed. to subsection which b,” requires court shall sentence defendant pursuant finds an however, exists, term of If, imprisonment. mitigating it also exist. After then must determine whether any making findings or non-existence” of fact about “existence judgment mitigating must then make the whether factors, normative aggravating outweigh mitigating a reasonable doubt. beyond That of the death decision, effect, determines appropriateness the defendant. finding recognition respect fact to the that a tip of an existence or non-existence factor will death, requires life the that delicate balance between Act aggravating beyond of prove the the existence factors 2C:ll-3c(2)(a). Although the Act reasonable doubt. N.J.S.A. it, interpreted the Act to expressly does not mandate we have aggravating require in order for an factor to be considered that unanimously balancing process, jurors agree in the must See, II, Bey supra, 112 respect e.g., with to its existence. Thus, statutory aggravating the role of at 548 A.2d 887. impor- is capital-sentencing factors in scheme of critical our concerning the jury’s appro- determination tance to the ultimate imposed. We observed State v. priate punishment to be Ramseur, at that the supra, 106 N.J. A.2d statutory aggravating jury’s of factors serves consideration death-eligible guide as to of murderers as well narrow the class determining appropriateness discretion in death sentence. scheme, finding capital-sentencing a unanimous our

Under statutory aggravating factors any one the existence sentence, provided charged could result in a by the State aggravating factor out- determines that that weighs mitigating beyond a reasonable doubt. Un- factors deliberations, jury charged guilt-phase like the situation in aggravating factors deciding the existence several capacity in an might necessarily exhaust its deliberative if it should unanimity on all such factors effort to achieve factor, aggravating determine that one on which it does unani- agree, outweighs mously mitigating beyond factors a rea- Thus, although acknowledge we sonable doubt. the critical role aggravating deciding penalty whether the death is appropriate punishment, unwilling are we a jury’s imbue respect non-unanimous decision with to an factor reliability acquittal with the same as attends a verdict of aon charge. Instead, criminal penalty-phase proceeding, jury vote than less unanimous on an finding ais that that factor not exist for purposes does of its proceeding. use in that dissenting colleagues disagree,

Our emphasizing that “a non- a capital every unanimous verdict in case is a verdict sense of word,” post (O’Hern, J., 572 A.2d at 639 dissenting); “The itself recognized Court has that a non-unanimous verdict a jury constitutes verdict.” Post at 572 A.2d at 635 J., (Handler, addition, dissenting.) Justice Handler reasons that because at one least factor must be found to expose exist to a defendant convicted of murder to punishment, submitted to a are elements of the crime of murder. Id. 2d at Applying

A. 632. traditional double-jeopardy principles, seeking he asserts “a retrial the death based on aggravating identical unanimously found at the [not proceeding] first to a for tantamount retrial the same crime.” cannot, however, Post at 572 at A.2d 633. The issue be simplified categorically. jury so resolved Because the must find aggravating one the death before can be imposed, appropriate it is aggravating to consider factors as analogous to capital-sen elements of But in other crimes. tencing proceeding multiple aggravating which factors are jury, finding submitted to the that all such factors exist is not prerequisite context, to a sentence. In analogy down; “elements of a crime” breaks non-unani finding mous on “extra” factors cannot be analo- purposes, to a determination that the gized, double-jeopardy prove an essential element of a crime. State has failed although a non-unanimous ver Similarly, the Act authorizes sentencing proceeding, statutory authorization dict jury’s determination “whether the defendant refers to the * * 2C:ll-3c(l). to death *.” See should be sentenced N.J.S.A. clearly recog question, both the statute and our cases On permissible under the Act. nize that a non-unanimous verdict is Ramseur, at 524 A. 2d 188. See v. N.J. State Nevertheless, capital- have held that when a trial court in a we that a could not sentencing proceeding is first advised verdict, inquire the court should whether reach a unanimous jury’s report “indicated its final verdict or whether Hunt, v. wanted more time to deliberate.” State (1989); Ramseur, supra, 106 558 A. 2d 1259 procedure, 188. That intended to assure that a 524 A.2d capacity on the issue of life jury had exhausted its deliberative death, completely unnecessary inappropriate would be where, sentencing proceed as in the initial under circumstances case, sentence ing in this was unanimous on the death only of four factors. but non-unanimous on two Thus, verdicts in although the Act authorizes non-unanimous sentencing phase, that authorization is far from decisive of four question a non-unanimous vote on two whether factors, jeopardy, bars principles under of double sentencing proceed of those factors a second resubmission ing. overwhelming majority jurisdictions note that an

We rejected double-jeopardy the issue have also have considered introduction, resentencing, challenges to the unanimously in the initial factors not found to exist (trial (Fla.1984) State, 461 So. 2d 84 proceeding. See Rose resentencing that was aggravating factor at court’s reliance on jeopardy), proceeding did not violate double not found at initial denied, 86 L.Ed.2d 471 U.S. cert. (1982)(where (1985); Redd, 290 S.E.2d Zant v. Ga. 528

defendant’s death sentence appeal, was overturned on State could resentencing resubmit at charged factors original trial), but not found to denied, exist at cert. 463 U.S. 1213, 3552, 103 S.Ct. 77 (1983); L.Ed.2d 1398 David, State v. (La.1985) 468 L.Ed.2d1133 (jury finding single aggravating factor exists does not acquittal amount to an aggravat other ing presented denied, jury), 1130, cert. 476 U.S. 106 1998, 678, denied, S.Ct. 90 reh’g 1014, L.Ed.2d 478 U.S. 106 3321, (1986); S.Ct. 92 Gilbert, L.Ed.2d 728 State v. 277 S.C. (1981) (no 179 double-jeopardy 283 S.E.2d violation in submit ting aggravating factor to trial), not found at initial cert. denied, 72 L.Ed.2d (1982); 102 S.Ct. U.S. Hopkinson State, (Wyo.) (holding P.2d aggravating factors not found to exist at first trial could be submitted resentencing violating without principles of double jeopardy because “there is thing no such as acquittal an from circumstance in penalty phase.”), cert. denied, 464 U.S. (1983). 78 L.Ed.2d 246 Silhan, Contra State v. N.C. 275 S.E.2d 450 (holding that considerations of jeopardy preclude double relying from at resentencing on aggravating factors not found original proceeding).

IV. Having principles concluded that present bar, no we next consider whether the State’s reliance at resentencing on aggravating charged but not unani mously proceeding found the initial offends notions of funda mental frequently fairness. We invoke the doctrine of funda mental fairness in criminal matters scope “when the particular protection constitutional has not been extended to protect Yoskowitz, a defendant.” State v. 116 N.J. (1989). 563 A. 2d 1 Accordingly, precepts of fundamental fair prohibit ness have been used types various governmental action though even a defendant’s rights constitutional were not directly implicated. See, e.g., Tropea, State v. 78 N.J. (1978) (fundamental precludes any 2d 355 fairness retrial A. produce an essential element of appeal where on for failure to defendant’s earlier on same proof court vacated conviction Rosenblatt, charge); Rodriguez v. 58 N.J. 277 A. 2d 216 (1971) (considerations municipal court of fairness dictate that necessary protect indigents against appoint counsel where may inability cope fairly from their injustices that result them); Calvacca, charges against N.J.Super. State (custodial 434, 440, im (App.Div.1985) sentence 489 A.2d drunk-driving “infringe[d] posed for conviction on [defendant’s] sentencing” court relied right to fundamental fairness where imposing drunkenness in custodial sentence for on defendant’s auto). conviction of death (1964), Currie, 41 focuses on 197 A.2d 678 fairness” doctrine the context of double

the “fundamental Currie, jeopardy. police stopped officers defendant’s car. away, approached, officers defendant drove As one of the striking police car. Another officer was the officer and speeding car. Defendant was injured as he tried to avoid the charged, municipal ultimately apprehended, and convicted leaving driving and the scene of an accident. court for reckless later, charged was with and year More than one defendant battery. Both the by jury of atrocious assault and convicted rejected claim Appellate and this Court defendant’s Division prosecution double-jeopardy the second was barred grounds. Court, Jacobs, writing also considered whether

Justice unfair, stating applying prosecution the second was “[i]n * * * primary against prohibition [t]he fairness and fulfillment of reasonable considerations should be and common law expectations light in the of the constitutional concluded the goals.” 197 A.2d 678. Court Id. oppression or prosecution did not “elements of second involve expectations of the de- or violate the reasonable harassment” Rather, barring the second 197 A.2d 678. fendant. Id. grossly to the State. Ibid. been unfair prosecution would have analysis suggests that The Currie the doctrine of fundamental may right fairly penumbral fairness be considered “a reason ably extrapolated specific guarantees other from constitutional ** Abbati, *.” State v. 99 N.J. 493 .2d513 A omitted). (citations applied principles

We also have fundamental fairness Ramseur, death-penalty proceedings. In State v. we precepts require held that “juries of fundamental fairness of, exercise, in cases be free informed and to the option final, statutory to return a non-unanimous verdict ** 308-09, 311-12, 106 N.J. at 524 A.2d In Biegen 188. II, supra, wald we held that the dictates of fundamental require in jury, impose fairness that the to order a death sentence, statutory aggravating must find that the factors by outweigh mitigating adduced the State beyond a 62, reasonable doubt. 106 524 .2d N.J. at A 130. We concluded adoption that the the reasonable doubt standard other Legislature’s contexts indicated the “probable intention to im pose capital sentencing the same burden” on balancing 60, process. Finally, III, at 130. Id. 524 A .2d in Biegenwald we held that consideration of a murder conviction at the second penalty-phase proceeding, resentencing which occurred before original trial, unfair, after but was fundamentally not surprise because there was “no element of unfairness or to the 540, defendant.” 110 at 542 A.2d 442.

In the jeopardy, context of double determination of whether government concepts action offends of state fundamental fair depends largely ness policy underlying interests guarantee. Currie, constitutional supra, 41 at 539, 197A.2d 678. aggravat We conclude that resubmission of ing factors that the first proceeding did unanimously implicate policies find exist does not underlying clause, double-jeopardy primarily which seek prevent using the State from its vast resources to harass and oppress through multiple prosecutions defendants punish ments for the same offense. Id. at 197 A.2d 678.

531 Proper capital-sentencing our scheme re administration of penalty phase in the be based on quires that the decision consideration of the “individual characteristics offender III, supra, at Biegenwald his 110 N.J. crime.” Accordingly, recognized A. 2d 442. we have possible sentencing, “the must have before it all ‘regarding the characteristics of relevant information individual offense, including nature and circum the defendant and his character, stances the crime and the defendant’s back ” physical ground, mental condition.’ Id. history, condition Ramos, (citing U.S. at A.2d California (cita L.Ed.2d end, omitted)). death-penal tion To that we have construed present only ty impose on defendants the burden statute to such ing mitigating order for factors to evidence by jury penalty-phase Bey in its deliberations. be considered Moreover, II, any juror 2d 887. 112N.J. 548 A. weigh mitigating permitted, balancing process, in the other juror, juror if no factor found to even exist agrees. 887. Nor has the State Id. at 548 A.2d ever from suggested preclude a defendant resubmit that we should mitigating ting, sentencing proceeding, a second proceeding. jurors the first rejected by all interpreted by Capital Punishment Act as We note that the safeguards against unfair and provides extensive this Court in penalty. As we observed arbitrary imposition of the death I), (1988): A .2d 846 (Bey Bey State v. proceedings acknowledge in the sentence and differ We We and believe from incarceration noncapital several prosecutions. respects subject record to court must the intense that in cases an death penalty appellate litigant’s life the fact is at stake intensifies The stark scrutiny. * * * obligation judicial engaged have in that meticulous very review. [W]e searching that has come in case before every capital and review record (Citations omitted.) us. charge Nevertheless, to the State to are satisfied that allow we supported by aggravating resentencing factors that were found at the initial unanimously but not sufficient evidence sentencing hearing poses no fundamental to unfairness defen We dants. conclude that resubmission of such penalty proceeding factors at a second is consistent with the premise that “regarding basic all relevant evidence the individu al characteristics of the defendant and his offense” be con by jury. III, the Biegenwald sidered 110 N.J. at (citations omitted). 542 A. 2d 442 Exclusion of this relevant regarding information and nature circumstances of a defen unnecessarily dant’s crime would impede crucial determining in pun function whether death is appropriate ishment.

Judgment reversed. J.,

HANDLER, dissenting. In the earlier trial of defendant for the murder of Amie Hoffman, unanimously found two factors: prior (N.J.S.A. that he had a 2C:ll-3c(4)(a)) murder conviction and that he killed course sexual assault and (N.J.S.A. kidnapping 2C:ll-3c(4)(g)). jury, however, The did alleged find two other by factors that were “outrageously State: that the murder wantonly was vile” (N.J.S.A. 2C:ll-3c(4)(c)) “escape committed detection” (N.J.S.A. 2C:ll-3c(4)(f)). agree was unable to unani- mously respect factors, voting to those two eleven to one former, eight favor four favor of the latter. Following Court, appeal to our the case was remanded trial another to determine put whether defendant should be death. remand,

On defendant moved to bar the submission of the previously i.e., factors not jury, found had “outrageously he committed an wanton and vile” murder escape agreed, “to holding detection.” The trial court that our decisions Biegenwald, State v. 106 N.J. 524 A .2d 130 (1987), (1988), and 110 N.J. A.2d barred the State charging from any aggravating penalty factors at the second

533 prove unanimous-jury satisfaction trial which it failed that determina penalty majority first The reverses trial. tion, concluding unanimously to determine “that a failure statutory aggravating factor does not consti existence of factor, barring presentation at ‘acquittal’ an of that its tute grounds.” at 572 resentencing double-jeopardy Ante at A. 2d 628. O’Hern, dissenting opinion of Justice disagree.

I concur, I aas matter of federal constitu which demonstrates applies specific to the jeopardy that context tional law double phase and should bar sentencing capital-murder trial aggravating factors were the resubmission by in the trial. Post at prior found Missouri, (citing v. 451 U.S. Bullington 572 A.2d at 639-640 (1981)). 270 I also hold 101 68 2d would L.Ed. statutory given this treatment of State’s state, factors, as as jeopardy under well principles double federal, preclude re-presentation at constitutional standards rejected by a that have new trial of been determination. jury, by either a unanimous or non-unanimous recognized consistently the bar of We have essentially the same crime. against prosecutions successive (1987); DeLuca, 527A.2d 1355 State State v. N.J. See (1983); Lynch, State v. Dively, A.2d (1979); Tropea, 78 N.J. A.2d 629 by (1978). capital murder is defined The crime of A.2d 355 As underscored Justice aggravating factors. relevant O’Hern, penalty under our death statute indisputable it of the crime are essential elements penalty can be murder for which the death capital murder —a committed murder is shown to have been imposed. Unless a establishing factor under under circumstances statute, capital murder not constitute it will penalty. 572 A.2d warranting the death Post seminal case recognized Ramseur 639. This Court itself offense elements aggravating factors constitute that the 534 Court, here, capital murder. The reiterates this under-

standing: v. 106 N.J. at 185 We observed in Ramseur, supra, A.2d [524 188], jury’s aggravating consideration of factors serves to narrow the statutory death-eligible guide jury’s

class of murderers as well as to discretion determining the of a death sentence. appropriateness [Ante 572 A.2d 525, at 628.] According to one standard test principles under well-settled jeopardy, by elements; of double a crime is defined its essential crimes are the same if their elements are the same. Blockbur States, ger United 284 52 U.S. 76 (1932); DeLuca, supra, L.Ed. State v. atN.J. 1355; Ohio, 161, 163, 527 A.2d see Brown 432 U.S. 97 S.Ct. 2221, 2224, 53 187, 193, (1977). Thus, L.Ed.2d the subse quent prosecution for an offense that is based on the same elements of a crime in an prosecution involved earlier would prosecution involve the of the same crime for jeopardy double See, purposes. e.g., DeLuca, State v. 108 N.J. 1355; 2d Dively, supra, A. State v. 92 N.J. A. 2d 502. impose It follows that there a when verdict to the death penalty involving rejection specific factors, aggravating seeking retrial the death based on aggravating identical Here, factors is tantamount to a retrial for same crime. two the elements of the previously crime tried and deter mined not exist are identical two the elements of the retried, namely, crime that will by be murder as defined c(4)(c) c(4)(f). factors may The State not any retry other context a defendant for the same crime involv ing respect the same elements to which there was a See, rejection. Grunow, e.g., State v. 102 N.J. (1986). not,

A.2d 708 The State should in the context of a prosecution, given opportunity murder be in the retrial of a defendant to establish the same previously rejected. that had been explains majority its jeopardy conclusion that double apply not in this focusing does case on asserted differences distinguish that can guilt from a trial trial suggests It purposes. all, not, elements that serve may after constitute warranting penal- capital murder define the crime of and, therefore, respect determination with to an ty, factor, negative finding, is it an affirmative or be acquittal. equated conviction can with a a result that be regard position capital- is In a Court’s this untenable. The to prosecution differences between the trial murder there are penalty. guilt determine the criminal and the trial to determine trials, however, principally distinguished cannot be These question no the purposes. There can be double capital-murder prescribed by our statute proceeding bifurcated put to a defendant shall be death entails whether determine protections. The with maximum that must be conducted trials the of murder and that can eventuate a verdict trial respects a criminal trial that is sur- sentence is all any protections guaranteed the constitutional rounded all of defendant, relating including jeopardy. to double criminal those this, acknowledges at 520- majority as it must. Ante The Bullington v. (citing quoting 2d at 625-626 572 A. 270.) Missouri, supra, 451 68 L.Ed.2d U.S. S.Ct. conclusion that double escape the majority endeavors by relying death-penalty on fully to trial jeopardy applies Arizona, 147, 106 90 L.Ed.2d Poland v. U.S. expressed the (1986), Supreme view where the Court alleged aggravating find factors of the sentencer to the failure “acquittal” jeopardy purposes because an for double not the determina- such factors does not involve determination of 155-57, essential elements. 476 U.S. tion of a crime or its Accordingly, the at 132-33. 90 L.Ed.2d 106 S.Ct. of here rules that the determination majority sentencing only the determination trial entails factors at of determina- to the level subsidiary facts and does not rise capital murder. Ante at crime of tion of the elements of the however, superimposes majority, 572 A.2d at 629. The scheme, inapposite statutory holding the Poland on concerning legal significance effect redefines our law first, legerdemain involves, statutory aggravating factors. Its equivocating over whether constitute murder; second, viewing essential aggra- elements of vating equatable factors somehow as incidental facts not crime; and, third, characterizing the elements of a the determi- something nation of such incidental facts as less than a verdict. Because it now as chooses describe facts, crime, incidental not essential majority elements put it has trial more believes into a accurate perspective for jeopardy purposes. By down-grading factors, jury’s the Court can then consider ordinary fact-finding deliberation these factors as rather truly than a critical part and discrete functional So trial. viewed, factors, actual determination such there- fore, decision, i.e., significant does not constitute a either a “acquittal,” “conviction” or an implicate and does reason, protections jeopardy. of double For this the Court capital sentencing hearing declines to view “the as a set aggravating mini-trials the on existence of each circumstanc- es,” surmising it that were to characterize the of determination aggravating death-penalty factors in a trial entailing as more facts, than the resolution of incidental that would convert the 522, penalty trial into a of series trials within a trial. Ante at Arizona, (quoting 572 A .2d at 626-627 Poland v. 476 155-56, 106 1755-56, U.S. S.Ct. 90 132-33). L.Ed.2d at however, presentation, The in this flaw from flows the labels misguided the confusing that Court uses. It is to label jury’s aggravating consideration and determination factors “mini-trials,” entailing premise as even those are, indeed, factors the elements of the crime of murder. required mandate, by statutory The is judicial whimsy, not separately to deliberate on each factor and to consider, highest with proof, accordance standards of functionally whether each factors is exists. This no different from jury’s responsibility in any criminal case

537 charged beyond to determine each element crime a 2C:1-13a; Federico, doubt. reasonable N.J.S.A. see State (1986); Martinez, 510 103 A .2d 1147 State v. 97 N.J. (1984)(quoting 483 A.2d 117 v. Virginia, Jackson 2781, 2788-89, 61 L.Ed.2d U.S. S.Ct. den., reh. L.Ed.2d U.S. (1979)). Yet, ordinary prosecutions, setting in the criminal impelled jury’s are to consideration and determi we call charged nation elements of the crime “mini-trial.” of essential Furthermore, responsibility specific for the determination capital-murder prosecution heightened such elements prosecution. In the compared ordinary as to an criminal latter impermissible request special return generally juries it is to to respect specific interrogatories par verdicts or answer See, Simon, e.g., ticular issues or elements. fact (1979). opposite The is true of a 398 A.2d 861 capital-murder prosecution special wherein we insist that such jury. interrogatories be answered See N.J.S.A. 2C:11-3. Hence, apply just jeopardy any as double would necessarily the existence of an determination resolves crime, apply jury’s so it determina- element of a must when tion the existence of factor. resolves given jury’s ag- or label deliberations on characterization nothing gravating simply has to do with whether double A of the elements of can attach. determination legal significance. give to which we a crime is itself matter specific Surely, the 2C:l-13a. determination See N.J.S.A. separate statutory aggravating required in a capital-murder case is an identifiable trial event invested with significance. similar legal concept factors are

Having undone the murder, proceeds ignore the Court then elements of “non-unanimity” in judicial recognition of statutory and a non-unanimous capital-murder sentencing. It now rules that significance of non- accorded the a determination cannot be It unanimous verdict. states: unwilling are imbue to a non-unanimous decision with to [W]e respect aggravating factor with the same that a attends verdict reliability acquittal charge. on a criminal at 572 A .2d at 629.] 1Ante majority, noted,

The repudiates, as earlier expressly without acknowledging, statutory equates our and decisional law that with the essential elements of the crime of capital murder, by jury which must be determined in a death-penalty proof apply trial the same standards of liability its determination of criminal and its determination of jury required sentence. Because the is conscientiously to make a in determination satisfying exacting and, indeed, trial proof, standards of do so even greater clarity, specificity, solemnity than may surround its determination of the elements of criminal guilt, aggravating properly factors are subject considered the jury contrary position “verdict.” The today Court’s is depreciates unfathomable because it non-unanimity the role of Thus, in a capital-murder 2C:ll-3c(3)(c) trial. explicit- N.J.S.A. ly clearly provides: If the a unable reach unanimous the court verdict, shall sentence [providing

the defendant to subsection b pursuant for a sentence rather prison than the death penalty]. recognized Court itself has that a non-unanimous verdict constitutes verdict. We clearly, precisely, have stated and simply: language, Legislature From it this is clear that statutory contemplated

three final verdicts in a possible case: unanimous verdict results a unanimous verdict that results imprisonment, death, and a non-unani- mous verdict results imprisonment. [State Ramseur, 106 N.J. A.2d 188.] Moreover, we emphatic could not have been more about the legal significance of a non-unanimous determination as consti- tuting a verdict: jurors trial, unlike criminal need not ordinary prosecution, reach a unanimous a true deadlock verdict; results not a mistrial but is a final verdict.

[Id. A.2d 188.] significant understandably suggests that there is a The Court encompassing guilt or innocence a “verdict” difference between of other issues itself and a “determination” or the sentence were, rejection, as it notion of non-unanimous the trial. The former, according Undoubted Court. applies only to the determination this a verdict and a ly, the difference between semantical, surely cannot follow but it is more than context reach a unani determination —a failure to that a non-unanimous aggravating factor the existence of an mous determination —of and our The statute to a “non-determination.” is tantamount aggravating factor be explicitly that an law demand decisional contrast, a jury agreement. only by unanimous found by a non-unanimous deter mitigating factor can be found even weighing and delicate used in the critical mination and be (II), 112 548 A. 2d 887 process. Bey See State legislative (1988). completion of our Clearly it is within the deter jury asked to consider and scheme that once a has been exists, its unanimously—whether factor mine— rejection of that equate legally with the failure to do so must pre entirely that consistent with factor. This conclusion verdict, and must be for the return scribed same treatment. accorded the ruling a determi- justifies its non-unanimous

The Court legal final determination aggravating factors is not nation of integrity of by impugning the respect to those factors with “non-unanimous jurors who have reached jurors, stating that are “unreliable.” decisions” finding capital-sentencing of the existence of a unanimous scheme, our Under charged one oí the statutory the State could result

any such determines death sentence, in a provided outweighs mitigating Unlike a reasonable doubt. factors beyond deciding jury charged several guilt-phase the existence of deliberations, might in an effort not exhaust its deliberative capacity aggravat- found that one if it has on all such factors already achieve unanimity outweighs mitigating agree, ing it does on which factor, unanimously a reasonable doubt. factors beyond [Ante at 572 A.2d 628.] describing phantom jury

The Court must be summoned is, opinion. however, special serve a role its There not the slightest suggestion that the real in this case the first flagging, impatient, trial like the acted inattentive the jury required by Court’s scenario. The case this was express to every instructions consider and determine and each proceeded factor it to mitigating consider before factors, which it must have then it done because was also to weigh aggravating instructed do so it could before against mitigating jury factors. If the had followed the Court’s here, script we jury willfully would have to conclude that the failed If operating to follow instructions. that becomes an premise respect way to jurors discharge the we believe it responsibilities, their will undermine the foundation on which upheld constitutionality death-penalty this Court has the of the statute. That is integrity foundation based the belief in the must, jurors, guide of who under clear standards to their discretion, deciding act as of community the conscience the (II), whether the defendant lives or dies. v. Bey supra, State 112 N.J. at 548 A .2d 887. jaundiced jurors Court’s of view contradicts both its

holding reasoning Ramseur, and its that jurors responsive will be conscientious and oaths their even they when reach a non-unanimous determination. underlying reasoning jurors We do not believe that this premise —that given if take will, out fail chance, easy and even to reach way try agreement jurors’ sound. The of death process and qualification, oath, —is designed jury the trial court’s instructions are all assure will make a reaching conscientious to follow the law in its verdict. The entire attempt jury representing of on the system belief punishment depends guided conscience of the will exercise its discretion in community responsibly deciding range who shall live and who shall die. from To hide the full permitting of its thus its decision to be based on uninformed options, goals and is to inaccurate mock the possibly speculation, rationality jurisprudence. modern A consistency required by disagreement disagreeing genuine does not “avoid its ais responsibility” by — conclusion its deliberations. statutorily permissible (citations omitted).] N.J. at 548 A.2d 887 [106 legal significance non- of the The Court’s obliteration engenders greater confusion we jury decision when unanimous holding: statement of its “a remind ourselves Court’s respect jury finding with to the existence non-unanimous ‘acquittal’ statutory aggravating factor does constitute factor, barring resentencing on presentation its of that grounds.” Ante .2d 572 A at 628. double-jeopardy infirmity determina Unexplained is whether the such is non- it jeopardy purposes is the fact that tion double unanimous involves factor. or the fact that it an' former, holding the unextracted from the Court’s If the then inference that a unanimous rejection aggravat of an apury ” ‘acquittal’ trigger ing factor constitute “an would barring re-presentation of the same jeopardy, death-penalty say trial. The Court should so. a new latter, acknowledge aggravat If the then the Court must elements of the crime of ing factors are not essential capital- of our own capital-murder, repudiating the .construction implications. its It murder and state constitutional statute say should so. here view our case law that we are

I adhere to the under rejection by an legally jury the a confronted what illogical jury inform a that of a It is to essential element crime. permissible acceptable, legally and a non-unanimous outcome is results, any specific and then fail to engender will attribute Indeed, explicit- finality we have ruled significance or thereto. opportuni- lost capital murder that even the ly in the context of and return a non-unanimous verdict ty jury to have the consider trigger jeopardy and concerning will double the seeking penalty. a the death bar retrial given case has coercive hold a trial court in a erroneously We that where Czachor, [State violation of instructions supplemental agree, its to law must a that has the inability A.2d 593 to expressed ] might that have final non-unanimous verdict afford defendant the benefit of the Having a been the coercion. erroneously deprived been returned absent resulting in to receive a verdict imprisonment substantial opportunity subject than the death, rather defendant not be to another sentenc- may ing proceeding. N.J. at [Ramseur, 524 A.2d supra, 188.] deprecates holding majority by asserting the effect of its disregard completely to that the non-unanimous verdict is not unfair the fundamentally by to defendant —who has been told Legislature by the this Court that a non-unanimous verdict Here, specifically is a verdict. has been instructed agree unanimously a that failure the existence that factor means that cannot be considered any way in the can deliberations that eventuate in death Yet, says aggra sentence. Court that resubmission of vating resentencing at rejected by were non- “poses unanimous determination no fundamental unfairness defendants.” Ante at 572 A .2dat 631-632. That cannot squared already be with what have we concluded to be the determining effect of a non-unanimous verdict in whether circumstances, put defendant should be to death: “In these we regard intolerably would as to require it unfair the defendant to undergo capital resentencing proceeding.” Ramseur, a second Moreover, at A .2d 188. the Court thought consoles itself with negating effect non-unanimous determination of an factor will also “helpful” jury. be next .2d Ante A That, however, 631-632. cannot Presenting be determinative: prosecution prior issues foreclosed cannot forestall the bar jeopardy, enlightening they may no matter how be in subsequent repeatedly trial. We have stressed that underlying jeopardy] all the is the protections [double clause provided by principle all State with its resources and be should not allowed to make power alleged an for repeated convict individual attempts offense, thereby subjecting compelling him to embarrassment, and ordeal and him to expense continuing enhancing live in a state of and as as well anxiety insecurity, though guilty. even innoeent he be found possibility may quoting DeLuca, 108 at [State Green v. A.2d United U.S. States, L.Ed.2d 221, 223-24, (1957).] Court, here, again The acknowledges jeopardy that double protections “primarily prevent seek using the State from its vast resources to harass and oppress through defendants multi ple prosecutions punishments for the same offense.” Ante (citing Currie, 572 2d at 631 A. State (1964)). 197A.2d 678 It doing strikes me that what the is Court today “intolerably is both unfair” and a use of State resources oppress” “to harass and defendant.

The Court’s rationalization enlightenment of fairness and support holding particularly of its sounds Notwith- hollow. standing explanation a crocodilian to the contrary, the Court prosecution protections sanctions a flouts patently unprincipled. flatly and is Its is holding holdings war construing applying capital- with our clear murder The legislative statute. Court redefines scheme prior into essays capital- converts our decisions curious jurisprudence. murder Because Court does not confront them, prior holdings our disquietingly appears and overrule it capital-murder principle abandon the fundamental that a system only is tolerable if the execution of defendants based firmly nondelegable responsible jurors clearly on the decision of guided by exacting disturbing, opin- standards. As the Court’s betrays patience ion a loss current administration of insist, capital-murder justice patience if that is essential we —a must, may as we a defendant execute protection. providing without first the fullest measure of joins opinion Justice in so much of this as CLIFFORD departs ruling” from the Court’s “new that non-unanimous are “unreliable.” decisions

O’HERN, J., dissenting. drag system through No one to see cases like this wants suffering years. families of the relive their as victims view, my wisely long goes as on. the trial court the case problem create dimension in this declined to constitutional to decision stand. case. We would be well advised let its has of a cruel murder. Defendant been convicted and vicious question appeal may subjected on his is whether he to a The be capital jury trial on murder a former second elements says majority may in his The he be twice resolved favor. prior these murder in the tried for elements of because jury charged deciding “a the existence of proceeding might aggravating necessarily factors exhaust its several unanimity in an effort to on all capacity deliberative achieve factor, aggravating if it such factors should determine one unanimously agree, outweighs mitigating does on which it beyond a reasonable doubt.” Ante at 572 A.2d at 628. with, begin understanding

To this is an incorrect of how we expect juries proceed explained cases. We (II), .2d 887 Bey 548 A that: jury obliged In the the existence of determine, first, phase, jury aggravating least one factor or factors. must find that at any jury factor the death If the exists before be penalty imposed. may * * * “finds that no factors exist the court shall sentence the defendant subsection which a term of b,” requires pursuant imprisonment. jury must determine however, finds an then it If, exists, making findings mitigating also exist. After fact about whether any mitigating jury the “existence or non-existence” of factors, judgment aggravating outweigh the must then make the normative whether the

mitigating factors reasonable doubt. That deter beyond decision, effect, [Id. mines the of the death for the defendant. at 158, appropriateness 548 A .2d 887.] Besides, principle reasoning may this of abstract have relevance public policy social or other fields of in which to certain sciences verdict, however, A is not finality is not end in itself. if its just may another decision that be reviewed and revised premises questioned. are always significance to a have accorded the most solemn

We judge may No command that a verdict be entered. verdict. may juries. judge partial verdicts with reconstituted No allow questioned its jury may be about reasons for verdict. No less, It is not that we the truth-seeking process value but Hence, that we value the the more. apply we would never majority’s principles to any setting. example An other will jury suffice. If a non-capital convicted a defendant of murder acquitted him underlying but of an felony, related such as a rape robbery, or retry we could never underlying him rape robbery or on theory jury that the' had not “ex- 525, capacity.” its deliberative Ante 572 A.2d at haust[ed] ironic, then, Is it “[imposition 628. not that we can say is ‘profoundly all different from other ** * and, such, more, penalties,’ fewer, requires proce- as not * * safeguards 630, Biegenwald, 639, dural 96 State v. N.J. Ohio, A.2d in (quoting part 477 318 v. Lockett 438 U.S. 586, 605, 2954, 2965, 973, (1978)), 98 S.Ct. 57 L.Ed.2d 990 safeguards yet apply not those here? may capital

The answer made be verdict is acquittal different not because it is a unanimous in the same guilt acquittal sense that a is. But a non-unanimous verdict in every is a in case verdict sense of the word. Our (II), 123, 887, decisions in 112 Bey State v. 548 A.2d N.J. 330, Hunt, (1989), and State 115 558 v. A.2d 1259 have made that clear. cases, many an aggravating self-prov- factor of murder is

ing, e.g., situation, in felony-murder 2C:ll-3c(4)(g), N.J.S.A. officer, killing police 2C:ll-3e(4)(h), or the as in State v. Rose, 454, (1988). 112 A.2d 1058 A conscientious invariably will almost find such an factor unani- mously any remaining aggravating to exist. The trial on deciding may in be critical whether defendant will any aggra- or die. A live non-unanimous verdict on other vating factor would a verdict in such be favor of a defendant. put His her life would have been at risk once for violation of factor. put, a defendant twice on Can be the same goal all death-penalty jurisprudence elements? The is to “ ‘reliability appro assure the determination that death ” Florida, priate punishment.’ 430 U.S. Gardner (1977) (White, J., 51 L.Ed.2d S.Ct. Carolina, concurring) (quoting Woodson North U.S. (1976)). 49 L.Ed.2d It is hard persuasion advancing “reliability are to assert with that we punishment” appropriate that death is the determination may when one defendant receive the of a non-unani benefit live, not, may depending mous verdict and another on the but non, of presence, vel another the case. majority has hoc made ad determination that this not defendant should receive the benefit of a favorable verdict all, some, the elements of murder. The but understandably this face Court wishes defendant to the full punishment for this murder. We have an intuitive measure nearly finding sense that the unanimous eleven-to-one vote 2C:ll-3e(4)(c) presence “outrageously of the N.J.S.A. or wan tonly allow retrial of that factor. But our vile” should intuition; principles more must use Court must use than it if, case, application. aggra other consistent What another vating a premise factors used to death sentence were found see, wanting, Biegenwald, 106 legally e.g., v. (1987) c(4)(c) (foreclosing aggrava on 524 2d 130 factor based A. an battery/torture), ted and the defendant had won eleven-to- any one in his favor on the absence of other factors? vote appeal say that defendant whose set aside the Would we could be retried on the factors relied think found in his favor? I should not. statute, aggravating are

Under our essential capital Biegenwald, crime elements of the murder. State A. 2d supra, 106 N.J. at 130. Without factors, double-jeopar is murder. Under a homicide not acquittal dy principles, of an essential element form of homicide, knowledge purpose, retrial e.g., forbids Grunow, 133, element of homicide. See State v. 149, (1986). wiped clean” on 506 A .2d708 When “slate [is] 520, appeal, ante at 572 A. 2d at the defendant in a non-capital case never loses the benefit of a favorable States, verdict. Green v. United 355 U.S. 78 S.Ct. (1957). L.Ed.2d 199 majority How then can the applica avoid principles tion of those proceeding? to this Constitutional guarantees apply sentencing phase to the of death-penalty proceedings in states in death-penalty which require statutes “all of the hallmarks Note, of a full-blown criminal trial.” “Fairness to the Right End: The to Confront Adverse Witness Capital Sentencing es in Proceedings,” 89 Colum.L.Rev. (1989) (citing Missouri, Bullington 451 U.S. 68 L.Ed.2d 270 (double-jeopardy guarantees trial-type extend to capital sentencing proceeding)). Arizona, Poland v. 476 U.S. 106 S.Ct. 90 L.Ed.2d (1986), sentencing does not deal proceeding with a like New Jersey’s. law, capital Under Arizona sentencing reposed judge. Poland, the court had returned an advisory finding on the interpretation factor based on an Factually, Arizona law. it found the factor to exist. As a law, questioned matter of the court killing whether to steal was factor under the Arizona statute. The case robbery. involved a question bank was whether the homi “killing pecuniary gain” cide was opposed as to the classic example gun. not, then, of the hired Poland v. Arizona is rejection clear case of a factual of an factor. But, important, more Arizona’s scheme is not Jersey’s. Legislature, like New Our in order to channel the sentencing juries, discretion of statutory aggra has established vating unanimously factors that a must find to exist beyond (II), Bey reasonable doubt. State v. 112 N.J. 887; 2C:11-3c(2)(a).1 548 A.2d A N.J.S.A. 1985 amend Act, 2C:11-3f, requires: ment to the N.J.S.A. now Biegenwald, supra, 1State v. 106 N.J. at 524 A.2d established this Act, principle in reliance on a later amendment to the which we believed should apply appeal. to cases on sentencing inform the the trial court shall deliberations, Prior to the b. of this subsection sentences which be may imposed pursuant not sentenced to death. if the defendant section on the defendant verdict shall result to reach a unanimous informed that a failure shall also be b. court to subsection pursuant case, ordinary prosecution, criminal unlike the “In a Thus, a decision verdict. not reach a unanimous jurors need outcome, results not acceptable which agree legally is a not to Hunt, supra, 115 mistrial, in a final verdict.” State in a but Ramseur, (citing 106 N.J. State v. 558 A.2d (1987)). .2d 188 524 A later, double-jeopardy question will this federal Sooner issue, may wrongly on this it judge If we resolved. have be retrial, again prolonging yet result in another well remaining statutory There are disposition of this matter. final case, including prior murder two aggravating factors this Jersey mur New (the murder and another Florida convictions der, Koedatich, 112 238 n. 548 A.2d see — U.S.-, denied, 102 L.Ed.2d (1988), 109 S.Ct. cert. Those factors will (1989)), underlying felonies. sentencing determination. jury to make a reliable enable join opinion. in this HANDLER Justices CLIFFORD and Justices Justice WILENTZ For reversal —Chief POLLOCK, and STEIN—4. GARIBALDI CLIFFORD, HANDLER and

Dissenting—Justices O’HERN—3.

Case Details

Case Name: State v. Koedatich

Court Name: Supreme Court of New Jersey

Date Published: Apr 19, 1990

Citation: 572 A.2d 622

Court Abbreviation: N.J.