State v. Laws

PLAINTIFF-RESPONDENT, JERSEY, THE STATE OF NEW LAWS, HORACE NELSON DEFENDANT-APPELLANT. JERSEY, PLAINTIFF-RESPONDENT, THE STATE OF NEW WASHINGTON, v. JOHN DEFENDANT-APPELLANT. Reargued January 9, Decided May Mr. Charles L. Bertini argued the cause for appellant Horace Nelson Laws.

Mr. Gerald JS. Monaghan argued cause appellant John Washington. Calissi,

Mr. W. Guy Bergen County Prosecutor, argued the cause for respondent State of New Jersey (Mr. Richard Aronsohn, F. Special Assistant Prosecutor, on the brief). Brennan, III,

Mr. William J. General, Deputy Attorney argued Sills, the cause on behalf of Mr. Arthur J. Attorney General of Handler, New amicus Jersey, curiae Alan B. (Mr. First Assistant Attorney General and Mr. A. Joseph Hoff- man, Assistant General, Attorney of counsel).

The opinion of the court was delivered by J. The defendants were convicted of murder in Jacobs, the first degree were sentenced to death. They appealed to this Court and after full consideration we found that their guilt was firmly established in a fair trial free from prejudicial error, from a apart error single which bore not. on guilt but on the death sentences alone. 50 N. J.

4.96 undoubtedly State, argument, At oral (In at trial before death could have waived the took (1965)), N. J. 501 Death Penalty, re Waiver of because full retrial a reversal that, rather than position should murder convictions error, of the sentencing convicted stand would defendants modified so However, life imprisonment. with murder first power lacked the Court that this the defendants asserted re- complete be a there must and that modify consequently J., on this reargument 188. ordered 50 N. We p. trial. a brief and General file invited the Attorney issue and J., amicus curiae. N. argue reargument at the supplemental their brief modification Court lacked defendants reasserted that on both retrial and that were entitled they through County State, and punishment. guilt Prosecutor, recommending filed a brief supplemental the matter be to stand and findings guilt permitted of penalty remanded for a trial limited to "the sole issue be a trial or before the that sat at the imposition, original unavailable, newly If such course is held impanelled jury.” as at the position, expressed by prosecutor State’s is that the of conviction should be reargument, judgments not full reversed for retrial but should be modified so that defendants would stand convicted of murder in the first life with indeed the in imprisonment; prosecutor J., dicated that since Dennis N. Kingsley (50 167) at p. other witnesses for the State had perhaps important disap not, reversal, he event of peared might be able to bring on for the matter such retrial all.1 The Attorney response questions during argument, In to addressed to Mm oral prosecutor stated that there was “an insurmountable obstacle particular in this case” to a retrial and that he did think there problems”; another “in would view certain and in answer inquiry requested direct as whether he the Court to affirm sentence, assuming so, with said, life had to do he “My position is that view of the circumstances of this I case say prefer I would would Court reduce it to life problems. because” of the retrial unequiv- asserted curiae which amicus filed brief General the sentences to review the power “this Court has ocally imprison- life and to sentences impose death herein with reaffirmed was this ment”; position reargument rather than a modification that there be the recommendation hand. in the case at reversal ap considerations moment any special for the Passing clear that entirely it would cases, appear plicable capital modify to review courts have power our appellate was a time There circumstances. in appropriate sentences N. J. L. 368 Gray, v. evidenced State history, with con otherwise thought when 1875), judges Ct. (Sup. reason and offensive to as patently now recognized sequences convicted lawfully was Gray In defendant sense. good the state prison sentenced improperly but was adultery the sentence jail; appeal, to the county rather than it, instead of court, modifying but the to be improper held miscarriages To insure against free. set the defendant a conviction that, whenever sort, provided this the Legislature may court sentence, the appellate for error is reversed rendered or have been which should enter the judgment court for that purpose. matter to the lower remand the 2:195-23; R. 916; R. S. 1898, 237, 144, c. S. See L. § Burns, & A. 601, J. L. 2:195A-13; (E. v. 136 N. State Garton, & A. L. 321 (E. 102 N. J. 1948); State & A. (E. 84 N. J. L. v. Huggins, State 1926); Culver, denied, 23 N. J. certiorari 1913). 1 L. Ed. 2d 1441 (1957), 77 Ct. 354 U. S. clear Gray gave the technisms of rejected

Court flatly sentences, modify broad power appellate expression judicial an inherent one which was found to be formerly supported as well as one J., 511) N. at (23 pp. J., rules. 23 N. acts and now in the practice practice 1:9—1; R. R. R. R. 500-504; R. R. 1:5—1 (c); at pp. 1:5-4. Quiver was convicted of armed lawfully the defendant In sentenced to life' erroneously imprisonment. but was robbery and that law common embodied Gray contended that He legislation that the free, stressing should be set under it he Gray to obviate had been enacted 2:1954.-13) (R. S. Revised 2A of the Title on the adoption had been repealed pointed properly Justice Vanderbilt But as Chief Statutes. recognition legislative out, simply the repealer court with dealt effectively had been subject identical au constitutional Court’s under the Supreme adopted rules Const., Art N. J. and procedure. thority govern practice contention J., as to the 502. And p. 3. 23 N. at VI, par. § Justice the Chief law principles, voiced common Gray ample with law a force living noted that the common aptly and current needs adaptation and development capacity J., Newark 505; Eye Collopy N. see at p. beliefs. light 43-48 27 N. J. Infirmary, Ear in re difficulty little beliefs, he found such needs and foundations with its archaic English Gray along jecting law, common our that, present as matter announcing an “to correct illegal have the inherent power courts appellate J., 23 N. at 505. p. sentence.” improper Johnson, N. J. Div. Super. (App. In State kidnapping were convicted rape the defendants 1961) On consecutively. appeal, to be served and received sentences ex- manifestly their sentences were contended they modified. In comprehensive opinion cessive and should be Gaulkin, Division Appellate upheld ap- by Judge “to revise sentence where it is ex- manifestly pellate power cessive, within authorized limits.” though statutory even 67 N. J. It cited the Super., pertinent language Culver, the out-of-state decisions which have held affirm, reverse, or modify judgments “the includes right N. to revise sentences” J. (67 Super., right p. 431) literature legal and the which sets forth persuasive many in favor of arguments appellate review of sen- compelling Hall, Reduction See Criminal tences. Sentences on Ap- L. Colum. Rev. 521 (1937); Mueller, peal, Penology Review Appellate Legal Sentences, But Excessive Appeal:

499 Minimum ABA Project 671 15 L. Rev. (1962); Vand. Ap Justice, Relating Criminal Standards Standards Draft, April Sentences, 13-20 (Tent. Review pp. pellate 29 J.L. 14 How. 20 L. Rev. 405 (1968); Stan. 1967); cf. J. 379 L. Yale 74 Rev. (1966); 18 Maine L. 133 (1968); L. Rev. 46 Iowa (1961); L. Rev. 186 16 (1964); Rutgers also State See (1959). 36 Det. L. J. 356 159 U. (1960); Mull, J. 239 231, v. 30 N. acknowl been repeatedly Johnson has authority of in most cases, though Division in later Appellate

edged have ex not to the lower court found them not (but all) Was v. See State discretionary power. its sentencing ceeded af serman, 485 Div. 1962), N. J. Super. (App. 75 Gibbs, 79 J. Super. N. J. v. N. 39 516 State (1963); firmed Furino, 1963); 85 N. J. Div. State v. 324-326 (App. N. Hall, v. 87 J. Div. (App. 1964); State Super. Ford, ; 480, 484-485 Div. (App. 1965) State Super. Driesse, Div. N. J. (App. 1966); Super. Div. 491, 494 And 1967). although 95 N. J. Super. (App. was ex sentences power modify illegal improper Culver, this Court has far thus not plicitly recognized modify manifestly excessive, had occasion to sentence as any However, in Johnson. Tyson, as was done State v. certiorari 411, 417 denied, N. J. 380 U. (1964), S. L. 2d 279 1359, 14 Ed. we (1965) recently gave

Ct. unmistak able “abuse showing indication discretion” by court we would not the trial hesitate reduce sentence statute; was within the outer bounds fixed though in could take lesser hardly any deed we course without being our reviewing faithless to responsibilities the true in right justice.2 terests of Johnson, supra, Appellate that, sentencing In Division noted apart, it could not recall matters exercise discretion “which today Super., 67 N. Mueller, reviewable.” J. And sentences, supra, following on review of his article made the comment: argued has been It the review is with inconsistent judge’s thing discretion. But there no such an un- au reviewing of this Court’s considering scope its cur in mind the fact that

thority, we must bear clearly v. Hager rent 1947 Constitution. See source of is the power Weber, 7 N. J. That document 201, organic our ju and purposefully strengthened modernized greatly dicial with wide In the it vested this Court system. process judicial more than that power, perhaps sweeping granted all to the end that any resort, other court of last and justice truly would be in fair to insure that position done. It the earlier and narrower replaced equally VI, “writ of error” with comprehensive “appeal,” (Art. § 5, par. 1), and directed that this Court “exercise appellate in all jurisdiction the last resort causes” provided VI, 2, Constitution. Art. 2. It par. granted original § jurisdiction to the extent to enable de necessary “complete termination of on Art. any VI, 5, cause review.” 3. par. § It broad to make rules “the delegated power governing prac all VI, tice and of courts within Art. procedure” the State. that, 3. And it par. provided lieu of the prerogative § which writs under inferior tribunals had been supervised 89 N. J. L. (Mellor Kaighn, 543, 545 & A. (E. 1916)), “in review shall be had the manner provided by rules of the Court, as of in criminal Supreme except right, causes where such be Art. discretionary.” VI, review shall 4. par. See § Judicial Control Jaffe, Administrative Action 170, 378, of 467 (1965). of the Eollowing adoption Constitution, comprehensive court rules were which promulgated faithfully sought carry out the of the high purposes constitutional draftsmen. One of these rules stated that the Court Supreme could set aside verdict as against the weight evidence. See Rule R. R. 1:2-20—now 1:5-3. Flanigan Guggenheim Smelt Co., N. L. J. ing (E. & A. 1899) had held that the of last court resort had no old such and in Hager v. supervised discretion; anarchy. argument it would be could This seem, only made, by be it would those who are of unaware Rev., dimensions of “discretion.” 15 Vand. L. new Weber, an was made on N. J. attack in an Justice rejected opinion rule. This quickly con- review is appellate Heher noted that explicitly secured “a remedial remedy procedure cerned with the and is of interference” the various provisions against legislative J., 7 N. 205-06. pp. Stressing the 1947 Constitution. nature of the Supreme broadened strengthened Court’s he said: reviewing power, Now, by writ error the Constitution common-law superseded by provided. VI, appeal has been therein Article V, paragraphs section, paragraph Section same 2. Under Supreme Superior Appellate Court Division of may original jurisdiction necessary Court “such exercise complete grant determination This cause review.” jurisdiction original significant design provide review law, as matters of well as of in fact accordance with the historic history “appeal.” function of an For the and uses of the varied “appeal” English jurisprudence, in and American Vaill v. see McPhail, 361, (1912). ground 34 R. I. 83 A. 1075 There no supposing for

whatever framers of the Constitution had “appeal” merely perform in mind an in law cases that would scope J., office of the old writ of error in and mode N.7 review. p. as do, we an and

Recognizing, power to review appellate in modify sentences of cases, run come now ordinary we to the capital cases. Unlike limited more constitutional pro visions in other states e. (see, the California g., Constitution in provides 6, 4, Article Section its Supreme Court shall have appellate jurisdiction “on questions law alone, in all criminal where cases death judgment has been our rendered”), Constitution provides unrestrict that an edly appeal may be taken as of right the Supreme Court “in VI, causes.” Art. capital 5, par. 1. There has § course been considerable legislation with dealing capital causes and history its has been carefully set on forth many Martin, occasions. See State v. 92 N. J. L. & 436 A. (E. Molnar, 1919); State v. 133 N. J. L. 327 & A. (E. 1945); Johnson, 34 State N. J. 212, appeal dismissed, 368 U. S. 145, 247, S. Ct. 7 L. 188, Ed. 2d certiorari denied, 368 (1961); Ed. 2d 195 370, 7 L. 933,

U. 82 S. Ct. S. denied, U. S. Sullivan, N. certiorari J. (1964), Nowhere in 2d 477 564, L. Ed. 990, 86 Ct. S. au legislative either any suggestion is there history all of indeed powers; curb thority appellate purpose that, whatever indication vain for any be searched murder, the legislators fixing altering restrictive or ever entertained ever gave any thought See appeal. court’s authority with views respect 576; 1, 270, c. 825; 1916, p. 235, 108, L. 1898, p. L. c. § § 2:138-4; J.N. S. 303; R. S. 1919, 134, 1, L. p. c. § 2A:113-4. directed, legislation, earlier as did

The 1898 statute shall first of murder convicted every person 235, 108, 1898, p. 825); c. to death put (L. be § be death unless the punishment directed that statute 1916, c. life (L. recommends § our current directed, as does 1919 statute p. 576); unless the shall law, that punishment con thereof,” and after verdict, “and as part its evidence, imprison of all recommend life sideration shall be “in which case this no greater ment 303; 2:138-4; R. L. c. S. imposed.” § N. J. 2A .T13-4. of the cited statutes was addressed None manner after conviction appellate proceedings in any rules culminate which, explicitly provide, our practice “affirmed, a mandate from be appealed judgment R. statute, or modified.” R. 1:9—1. Under the 1898 reversed was no choice but the death impose penalty; there to under the had the choice jury the 1916 statute between life im death;3 and the under prisonment graver penalty and 3 1916, statement attached to the bill which L. c. The became originally punishment and which set forth that the shall be imprisonment, simply life death unless recommends read as follows: purpose possible this amendment to make it rendering jury, degree, in a verdict of murder in the first to clemency any penalty in exercise case where the death seems particular too under facts in. that severe shown case. statute, now, the 1919 as its choice of life imprisonment all by be of its verdict after consideration it of part Molnar, State v. 133 N. J. L. supra, evidence the case. See Mount, 333-334; pp. State 30 N. J. 215-220 (1959). Prom the thus outlined it is legislation indisputable there is no mandatory of death for first penalty degree murder. The is either death or the lesser penalty punishment of life In imprisonment. what deciding impose case, given exercises a which com discretion to that parable exercised the trial when by judge choosing between higher and lesser punishment other cases. Johnson, 34 N. J. Proctor re Justice cently the matter put appropriate terms as follows: jury deciding imprisonment A to recommend under whether life guided by implied N. J. S. 2A as a :113-4 is the same standard statute, judge assessing under other criminal e., statutory i. the determination of that within limits sentence justice society which best serves the interests of between Mount, (1959). State v. defendant. See 30 N. J. Cf. Steenback, (1961). Admittedly, In re general standard, N. J. is a only meaningful but one which is in this Additionally, jury’s we note context. discretion under by 2A N. J. S. :113—4N. J. A. is not absolute. is limited It statutory imprisonment mandate that a recommendation of life “upon must based after consideration of all the evidence.” White, State v. N. J. A determination of imposition capital punishment what circumstances make the unjust judgment or unwise is left to the collective discretion jury, as, contexts, ordinarily judge. in other it is left to the particular That determination must be made the facts of a Indeed, legislative specification case. of criteria for recommendation imprisonment might prejudice through of life a defendant given exclusion omission of a factor relevant in a case. We hold gives N. 2A J. S. :113—4N. A. J. S. discretion recommend life where it returns J., verdict of first murder is N. constitutional. 34 decision in our

There is no dis- precedential State.which cusses or deals with this Court’s first de- modify murder conviction sentence gree reducing of death to life The issue was not raised in State v. imprisonment. White, 27 N. J. nor (1958) was it involved in other

504 Sullivan, J. and 43 N. 209 cases v. supra, such as State Mount, as v. in the cited cases 30 N. J. 195. supra, Language its choice in making to the nature of discretion jury’s must of life imprisonment between and the death penalty clearly read com context, as thus course be read in in State this Court with the patible opinion unanimous however, are, Johnson, J., There v. N. 34 supra, significant is highly and it precedential out-of-state decisions to life death were reduced of them sentences of many akin to our own under local procedures our constitutional though lacking support expansive Ramirez, 623, v. 34 Idaho history authority. See State State, 155 203 P. 29 L. R. Davis v. 279, A. 297 (1921); State, 183 Ark. v. Ark. 244 W. 750 Williams 245, (1922); S. States, 121 870, 39 2d v. United Frady S. W. 295 (1931); 84 certiorari D. 348 F. 2d C. 78, (D. Cir.), U. S. C. App. 2d denied, 247, 86 15 L. Ed. 160 909, 382 Ct. U. S. S. States, 123 D. C. Coleman v. United U. S. (1965); App. State,-Nev.-, 357 F. 436 Spillers 2d 563 (1965); State, P. 40 Cr. 267 P. 2d 18 Hubka v. Okl. (1968); cf. State, 864 8 P. Fritz v. Okl. Cr. (1928); 307 Pa. A. Garramone, Commonwealth (1912); 733, 89 A. L. R. Austin v. United See also States, F. 2d 129 C. Cir. (D. 1967). States,

In v. United were con- Frady the defendants were victed of murder in the first sentenced to Code, death. District of Columbia Under controlling statute, under Hew have Jersey could recom- life in which imprisonment, mended event that would have appeal, been the On the court found no error as penalty. but found error which bore on the guilt death sentences. to the court’s took response Government inquiry, that under U. G. which affords position ap- § affirm, reverse pellate power modify, Court Ap- could “modify for a peals judgment by life providing by remanding sentence or the case to the District Court with 2d, 91; to do so.” 348 F. directions at p. Coleman v. United modified 2d, so States, F. 572. The court 357 at p. supra, course In the of life imprisonment. and sentences imposed was “im- that it noted Eahy Judge of the principal opinion, to same to reconvene possible, impermissible, re- was “not a new consider now the punishment”; a jury assuming for that purpose, to be convened quired sentenc- validly perform other than the trial could sentences Code; since and that under the ing” all of under solution” stand, could not “the appropriate of sentences entry was to direct circumstances 2d, 90-91. at pp. 348 F. life imprisonment. was con States, the defendant supra,

In Austin v. United not re had The prosecutor murder. victed of first degree recommendation jury’s and on the the death penalty quested On so sentenced. the defendant of life imprisonment evi that, although found of Appeals the Court appeal, it did degree, in the first murder dence did not establish not order It did degree. establish murder in the second be resentenced the defendant new trial but directed that a retrial was found that unless he by judge the trial opinion, Judge course of his In the justice. interests of courts, in which appellate numerous cases Leventhal cited acts or under practice power under their inherent acting have affirm, modify, reverse or their recognizing modified the of the offense and have either reduced the degree modification. 382 for lower court or remanded sentence Monaco, 2d, 43, 2d 248 140-141; v. 14 N. Y. F. see People Ritchie v. 197 N. E. 2d 532 41, (1964); N. Y. 2d S. 575 State, 189 N. E. 2d State 614, (1963); 243 Ind. State, Forsha v. 1, (1960); 355 P. 2d Or. Braley, Porello, 2d 463 State 604, (1946); 183 Tenn. 194 S. W. E. 2d 198 v. Jack (1941); 34 N. 239, 138 Ohio St. son, 268 N. W. 924 111, 198 Minn. fair and and clearly sensible

The foregoing approach Retrial bur justice. sound administration furthers the costly judicial system parties densome to the here, involve serious and, may danger miscarriage. a less be satisfied truly of justice may Where the interests defendant, which does not prejudice wasteful alternative Austin. Frady followed as should of course be be may readily state courts decisions Though self-limiting un rendered were cited,4 they it is of note worthy 1947 Constitu Jersey’s New der modern constitutions like readiness tion; with equal event reference much which have gone state court decisions made other than we are called further in sentences on modifying appeal Ramirez, Idaho See, supra, do here. e. State v. g., State, 297; P. 29 A. L. R. Davis v. supra, State, Cr. 750; Ark. 244 W. Hubka v. Okl. Hall, 864; 267 P. 176 Neb. 125 N. W. State v. cf. 918, 926 2d (1964). .-, State, 18, 436 P. 2d the supra,-Nev In v. Spillers with violence and his rape penalty convicted defendant was On Court appeal, Supreme at death. was set defendant’s contention that sustained the of Nevada unconstitutional insofar as it was authorized Nevada statute the defendant was tried aby where penalty death or was tried before a guilty not where he pleaded judge but a waiver of with the state’s consent.5 However, alone on did not set aside the conviction or order a the court new pp. supra, 4 Mueller, Vand. L. Rev. at 684^685: 15 See “modify” employing construed the term have been statutes Some modify appellate authorizing courts to excessive sentences. as not “modify” however, asked, might it not what means if does It statutory modify.” lack authoriza- It seem that would mean “to seriously argued terminology where such is used. tion cannot be infirmity 5 whether the constitutional not here determine We need Jersey’s statutory applies Spillers to New scheme. See found in 2A:113-4; 3-3; Sullivan, 209, N. J. 11 State v. 43 247 N. J. S. 2A: 990, 564, denied, (1964), Ct. L. Ed. 382 U. S. 86 S. 15 certiorari Reynolds, 597, ; ; (1965) (1966) v. 43 N. J. State 603 2d 477 556, 560-562, Petition, denied, 2d certiorari 294 F. re Ernst’s 198, (1961). 917, 7 L. Ed. 2d 132 But 82 S. Ct. see U. S. 368 Jackson, Supp. (D. 1967), F. 716 v. 262 Conn. States United -, 1209, reversed, (1968). Ct. L. Ed. 2d U. S. 88 S. 20 138 390 apply, we have reached case the result at hand If does for no would call alteration.

507 reducing of conviction by trial modified the judgment but life, years saying: of 20 the death to sentence penalty “reverse, authority court with invests NRS 177.240 im affirm, modify judgment appealed from.” The sentence 326, Allgood State, posed part judgment. 372 78 v. Nev. is a Thus, (1865). ; parte Salge, we (1962) 1 449 2d Ex Nev. P. 466 may modify therefor substitute an unauthorized sentence sentencing open proper v. court. State sentence that was Johnson, Moore, (1925) ; 405, 75 v. P. State 48 Nev. 233 523 ; al., Squier 481, (1959) also v. et P. 291 see Nev. 346 2d p. P. 2d at 54 P. 2d 227 436 Nev. 216 A. 2d 420 Pa. Aljoe, v. In Commonwealth Smith, v. Commonwealth distinguishing court, (1966) jury’s reduced 176 A. 2d (1962), 405 Pa. the trial his summation at prosecutor because the

penalty 2d,A. of parole. considerations injected had improperly Garramone, case Commonwealth 56. In the earlier p. fixed had judge Pa. 161 A. authorized to a statute which at death pursuant the penalty On imprisonment. appeal, him to death or life either impose examined the record Court Pennsylvania Supreme did justify judge’s circumstances concluded favor of more severe penalty. of his discretion in exercise Linn stated that there In the of his Justice opinion, course “no as to the court’s to reduce the doubt” do. to life which it imprisonment” proceeded “from'death Green, A., 735. See also Commonwealth A. 241 137, Pa. 151 2d. In other states similar action has been taken where the death sentence fixed by was Ramirez, than the v. the rather See State jury judge. supra, 279; State, P. Davis v. 623, 34 Idaho 203 Ark. supra, 155 State, 750; Hubka 245, 244 W. 40 161, Okl. Cr. supra, 864. 267 P. Ramirez,

In the defendant was found of guilty murder The jury in the first set the degree. punishment at death un- ader provided every statute mur- person of guilty in the first shall suffer degree der death or be punished by the for life as the decides. On jury appeal, it

court found that while the evidence established guilt law”; penalty “not sufficient to warrant the extreme the sen- reducing it modified the judgment by accordingly, contention In response tence to life imprisonment. “reverse, modify” affirm or that the court’s to appellate rather than the jury did to a where the not extend case com- made the following court had fixed the it punishment, which are here: ments persuasive perceive logical why judgment of the We no reason the why potent court, court this should than of be more the may former, relates far as it review the hut in so latter not the may penalty why re- to to Nor the evidence be inflicted. verdict, sufiiciency support but to viewed determine its to justifies of the infliction to determine whether record, penalty. why, in a was error Nor case where there reversal, in order but not of such as to warrant character imposition penalty warranted avoid when not the extreme reversing evidence, put this court should alternative he injustice judgment permitting to be done. nevertheless justice uphold proposition Considerations of both reason modify judgment has found court where the guilty and fixed the defendant of murder the first justice requires death, at when the furtherance such pp. modification. 282-283. P. See State v. 98 Ariz. 404 P. 2d Goodyear, reversed on 100 Ariz. (1965), other 413 P. 2d grounds, Valenzuela, Ariz. 403 P. 2d (1966); ABA on Minimum (1965); Project Standards Justice, Criminal Relating Standards Review Appellate Sentences, supra, State,

In Fritz v. Okl. Cr. 128 P. 170, the found the defendant of murder. guilty The statutory was either death or life penalty imprisonment and the jury fixed it at death. On appeal, the court modified the con viction by affirming finding guilt reducing to life imprisonment. response the contention its action intruded on the Governor’s commutation had the court this to power, say:

509 modify judgment inflicting power of court The this to penalty for murder to at labor when for life hard proper justice of in no sense the deemed the furtherance power of commutation of the court. Com- sentence lower granted only by state, can be of mutation the chief executive judicial granted clemency. power and is as a matter The to modify judgment power pardon, and sentence and the executive wholly parol, or commute are distinct their nature. The one is justice grace. an award other is an act Commutation may imperative, ais matter of discretion and be refused. Justice is and must not be The denied. fact that Governor has the abridge right appeal to commute does not the defendant’s words, provision this court procedure relief. other of our criminal duty record, it act makes of this court to review the necessary proper case, justice, and in modify if furtherance judgment prevent imposition punishment so p. which the evidence will not warrant. P. 128 177. State, In Williams v. 183 Ark. supra, 870, 39 S. W. 2d 295 the defendant killed a of a policeman during the course The robbery. found Mm of murder fixed guilty the sentence at death rather than life imprisonment. On appeal, it appeared evidence to the defendant’s relating criminal previous conduct had been admitted erroneously the trial. during It was found that this error impair did not judgment it have guilt although prejudiced defendant on punishment. The Arkansas Court Supreme that, held unless the prosecutor notified that he it elected to with a full proceed retrial, modify would the conviction 39 W. reducing to life S. imprisonment. 2d, Sorrentino, in State v. procedure 31 Wyo. 224 P. 420, 426-427 (1924) was along the same line. Hall, Rev., See 37 Colum. L. at pp. 774—775; Brown cf. States, v. United S. C. U. D. 112 App. 299 F. 2d C. certiorari (D. Cir.), denied, Thornton v. United States, 370 U. S. Ct. 1593, 8 L. Fd. 2d ; State v. Berger, P. Wyo. 2d 1061, (1962)

Reference to Hew Jersey’s constitutional and legis lative history, with the cited along out-of-state decisions and their obvious good sense, has left us firmly convinced of the discretionary a modify to power of our

sufficiency appellate Since so of justice require. the interests sentence whenever a matter involved it should is the exercise of discretion judge. than rather jury whit that the is sentencing sentencing that since Indeed it has been elsewhere suggested significantly a different contributes each case by “all is sentences, there unfounded between disparity where the in those cases judicial more reason for review Minimum, on ABA Project participates sentencing.” Justice, Relating Ap Standards Criminal Standards for matter Sentences, 17. But Review supra, pellate of a narrower one before us is need not be for the issue pursued disposition. be confined to its and our holding may properly alone a to the sentence there error legal relating Here a new as we find and the prosecutor, assuming rather unavailable, seeks modification alone is waived. retrial; being death than in effect the and during could waived before It have been undoubtedly 45 N. J. (In Waiver Death Penalty, supra, the trial re of denying and there no rational basis 501) of since the filing waive now. Indeed it be noted that may a J. formal in this case N. opinion (50 159) prac earlier broadly provides has been adopted very tice rule of court waive the may “the with the prosecutor approval R.R. 3:1-3A. death penalty.” as to validity We entertain no doubts adminis- which bore on the prosecutor’s authority trative directive 45 J. N. Historically waive the penalty. has vested with broad discretionary powers been prosecutor mani- to be exercised conscientious discharge LeVien, office. v. 44 fold his See State responsibilities States, N. J. 326-327 Newman (1965); v. United cf. Cir. (D. F. 2d 480-482 C. 1967); 382 United States v. Shaw, A. 226 2d 366 C. 28 L. (D. App. 1967); Mont. Rev. 41 60 Nw. L. Rev. U. 103 Pa. L. (1966); (1965); U. Rev. 1057 He (1955). may appropriate circumstances de- that a murder indictment termine is not called for all LeVien, J., may- he 44. N. at pp. 326-327); (State supra, or a 2A:113-2) a J. (N. seek obtain second S. degree a degree first J. 2A rather than manslaughter (N. :113-5) nolle indictment; pros. a dismissal or may he seek obtain Hickling, first lesser indictment (State ; L. 152, N. J. Ct. and he recommend (Sup. 1883)) in to a murder and obtain defendant plea by acceptance of a dictment J. codefendant (N. though S. 24-113-3) plea States, has been See Newman v. United F. rejected. 479; Bedau, 2d Death in New Jersey, Sentences Rut cf. L. Rev. gers

In all first the cited instances finding murder of without recommendation is course avoided. At no time has the the of Legislature questioned breadth the nor it cast general prosecutorial authority any has ever on shadow specific authority to waive the prosecutorial penalty murder case. Such was ex authority plicitly our unanimous Waiver recognized (In directive re Death 45 Penalty, N. J. and has in supra, 501) effect been State, in cases elsewhere. Williams v. recognized See supra, Sorrentino, 183 Ark. 39 2d 295; S. W. State v. supra, 129, 224 P. 420. Wyo. It finds strong support only not but on legalities any considered view the realities. As a matter, whenever practical prosecutor decides not to ask for the death penalty he somay tell the jury and that effectively eliminates its return. That true, it being would be utterly wasteful and needlessly burdensome to conduct the trial as it were though and capital case thereby entail voir extensive dire as examinations to the prospective jurors’ on capital punishment. views can There be no question that furthered, the directive said, the public interest and expeditious fair and “the administration of justice.” criminal J., 502. 45 N. at has p. It been implemented in the court 3:1-34,- R. (R. B. B. rules 3:7—2(/) ), has operated with satisfaction, and is now great unhesitatingly reaffirmed. are satisfied We new trial on punishment alone not be appropriate. would See Frady v. States, United supra, could 2d, the old F. Obviously, 90. p. at counsel reconstituted; argument at’ oral indeed

now be trial, that since advised for the defendant Washington a new could Nor become his client. jurors one had being without alone on matter of jury pass 24:113-4; State J. “all evidence” (N. familiar with L., all Molnar, that includes N. J. 334); v. at p. supra, commission on defendants’ the evidence bearing J., Mount, N. 215-220. pp. v. supra, crime. See State would be unable produce the State It conceded trial, any suggestion all of at the original the witnesses to read be called fairly new could trial, former at the testimony thousands of many pages to be too would witnesses, appear in lieu of live hearing discussion. unrealistic require event, provide our does not present practice no trials, prej- which found opinion bifurcated guilt original udicial error record relating that no death trial, premise rendered on the clearly choice would be rested that record modification Court or a full would be between a J., 188-189; 50 N. see Review retrial. at pp. Appellate Procedure, 379, 388, n. 52 Yale L. J. Sentencing Gransamer, J. 179, 23 N. 188-18.9 See also Meszaros Mount, J.,N. (1957); Whether should for the future adopted bifurcation be is some- here, the subject which need not be dwelt thing calls for patently thorough study including examination of to the actual date several states which experiences results of study have such such and ex- proceedings. will presentation amination warrant in undoubtedly regular 1:23; a judicial course at conference. R. R. forthcoming see Cases, Note, in System The Two-Trial 39 N. Y. Capital U. 50 (1964). L. Rev. States, in v. separate Frady

In his United opinion supra, after referring to difficulties Judge Burger, incident to bi- said: trials, furcated “This enumeration of a few of the

513 two-trial system of problems confronting designers such institution folly should make clear the utter all ramifications. careful its system study after except we are not equipped We have not made such study 2d, 116; F. 348 do so in the of an appeal.” resolution cf Texas, v. S. Ct. 648, 87 U. S. 554, 567, 385 Spencer v. Jack 17 L. Ed. 2d United States 606, 616 655, (1967); son, 20 L. 1209, Ct. Ed. 2d 138. U. S. 570, 390 88 supra, 2d 904 certiorari Cir.), v. 358 F. Curry, United States In (2 17 L. Ed. 2d 100 (1966) 385 U. S. S. Ct. denied, 147, 87 that, in the absence of congressional it was suggested federal courts would have enactment contrary, trials; to order bifurcated but inherent procedural power indicated that since such trials do not work always the court of defendants it would be “loath to compel to the advantage to submit de procedure defendants unwilling hut which in prejudicial vised for their benefit its 2d, case.” 358 F. 914; p. see particular application Jackson, v. U. S. 390 United States S. Ct. 88 States, L. Ed. 2d 138 v. ;6 Pope United F. 2d 372 20 Court, Supreme striking penalty In Jackson the in C, Kidnaping provision 1201(a), Act U. S. § of the Federal authorizing Act as bifurcated declined to construe the trials. opinion Court, for the Justice course of his Stewart reiterated by Judge Burger Frady problems which had been listed States, supra, following F. 2d at 116 and made the United comment: legislatively jury proceedings with Even States established issue, attorneys penalty always defense have not been advantage prepared to features of take those Note, designed Clemency to benefit their clients. See Executive Capital Cases, Y. N. U. L. Rev. If novelty penalty proceedings impaired has thus relative representation effective jurisdictions pro where the contours of such by statute, ceedings fixed seems clear have been the diffi even more the defense would be culties for formidable under the system case-by-ease amorphous the Government asks us to today. legitimize Circuit, no It wonder the Second while two-stage altogether, foreclosing compel trials was “loath unwilling to submit” to United Curry, them. States defendants p. 1216, S. Ct. at 19. n. F. 2d Laws 1967). say, 728-730 Cir. Needless and Wash (8 defendants”; light their “unwilling are such ington criminal records retrial limited to alone prior L. Rev. 39 N. Y. would be death oriented. See U. inhumanely position their Understandably present a full on both they guilt punish should have retrial indicated, would disserve but, have already ment as we justice. administration of advance the proper rather than States, J., 187-189; 50 N. v. United Frady at pp. Cf. F. 2d 84. the general appellate reluctance to exercise Judicial at has been is concerned where sentence modifying power law criminal of English aspects tributed long-abandoned in American counterparts had any never fortunately of this for perpetuation criminal law. There is little basis a mod with in an reluctance, enlightened particularly who delegates ours. structure such as judicial ern Court vested deliberately drafted the 1947 Constitution would end that with sweeping judicial power administered. soundly fully justice to see equipped vision, their faith and match if their Surely, keep we are to defendants here. The found wanting not be power may wholly on in the first degree of murder guilty were adjudged free which was a fair trial evidence. had They sufficient There was to guilt. from error any prejudicial relating about the brought error which have sentencing to life imprison modification of the penalty sentences but all harm from that error. will now remove possibility ment to the de call for no relief justice greater Right would be a clear whereas the new trial seek they fendants about a society well might bring gross imposition all in justice. Under of the circumstances miscarriage waiver of we the death prosecutor’s penalty, cluding no there is hesitancy concluding have adequate modify conviction, judgments appellate each of will do, we now so that the defendants stand con- of life im- iu first with sentence victed of murder the prisonment.

Modified. voting majority the join J. (concurring).

Pkoctoe, I only imprisonment the in this case to life reduce sentence death penalty. to waive the because the has prosecutor agreed the oral argument did indicate at prosecutor Although issue of would a remand of the case on the he prefer if we de clear that alone, abundantly he made it a a wish reversal of remand, cided he did not against partial the conviction rather would that the Court prefer permit but and a reduction the sentence waiver the death penalty In re Waiver Death Penalty, to life In imprisonment. N. J. 501 this Court announced that (1965) prosecutor of the waiver binding does effect possess power order, death R. R. 3 :1-3A. This administrative penalty. See view, no than the realities my does more recognize situation which when the does not seek prosecutor arises majority the death and I with the here that penalty agree If de the exercise of this is valid. power prosecutor cides not to the death his penalty, presentation request that a death sentence State’s case and his request a jury not be returned will lead to -recommendation generally of life if a verdict is returned. guilty light un certainty, of this that the great probability, approaching would not be imposed, wanted death penalty question waiver is on the prosecutor’s legally binding whether the moot. The of the situation is that reality becomes not, will in waiver, whether considered binding practice Indeed, from eliminate the death the case. virtually penalty a death penalty despite “non-binding were to return waiver” of that favorable penalty prosecutor court consonant with such waiver (as Justice charge by dissent could recognizes Erancis’ it well be done), might death verdict was influenced argued by prejudice, so, or mistake. Since this is we passion, ought recognize, directive, supra, our administrative as we did re- consuming procedures time so that binding, waiver is — examina- a voir dire such cases only capital quired capi- views to their relating jurors of the prospective tion — This case. from eliminated can be tal punishment is con- waive the of the prosecutor for a an indictment seek with his broad power sistent re- an indictment pros, to nolle of murder or lesser degree turned. a binding pretrial as I do the permissibility

Accepting no dif- I have by prosecutor, of the death penalty waiver exercise may he our that, approval, with in ficulty concluding if we re- Certainly, of the case. posture that at this power trial, the prosecutor a new for complete manded this case a to return or penalty request could waive the death eliminating possi- in a manner practically life sentence Jacobs points As Justice penalty. of the death sentence bility by best served permitting of are out, justice the interests a retrial. now rather than requiring to be made waiver fears, the if, colleague majority However, my dissenting as has inherent this Court may imply be read opinion discretion for that of the and to its to substitute power to life over the imprisonment a death sentence reduce in I cannot join majority opinion. objection, prosecutor’s waiver I would by prosecutor, of the In the absence a this case for new trial. plenary Although to remand vote this Court has the power reduce, no doubt that I have in in which the excessive, sentences cases has Legislature as minimum maxi sentencing (within the matter left judiciary’s discretion, to the I do mum not believe limits) extends to first murder cases. N. J. degree power as the prescribes penalty %A:113-4 for murder, subject only to the jury’s power first to “ex degree clemency” (Statement attached to bill which ercise became c. life 270) recommending imprisonment. L. No the statute is there indication where in trial judges, are to have any power to circumvent the appellate, gen- eral penalty death. many the authorities cited by majority, well as all the decisions in State, this ap- pellate power modify sentence is limited to the im- position the proper sentence which the trial judge empowered to impose In a originally. first murder case, however, the has Legislature made it clear that has no judge determine whether the sentence death; should be life or has Legislature mandated that this decision is for the strictly jury.

The death in this case stand because the trial court erred in its charge jury on sentencing, not because this Court with disagrees verdict on jury’s an level. evidentiary The statutory language, my opinion, forecloses the possibility this Court could reduce death sentence because merely we felt that had we been jurors we would have recommended life place what we considered to be an excessive penalty imposed by jury-1

As reveals, Justice Francis’ dissenting opinion many problems this area be eliminated might bifurcated trial on I guilt punishment. see much to Although commend the adoption such I procedure State, would reserve decision on the matter. In my such opinion, a drastic innovation a is not fit for subject in adoption the decision of an but appeal, rather should be if at adopted, all, aas formal rule of law after deliberation thorough out- side the context of a specific case. This deliberation should include consideration whether legislation would be needed to effect the change. I Accordingly, request that we place the on the question agenda of judicial the next conference.

Justice "Hafemaf in joins this opinion. express I do not a view here inconsistent with this Court's power against weight to set aside a as death sentence the of the complete case, moreover, evidence and order a new such a trial. prosecutor might wish, here, penalty, the to well waive the death eliminating necessity the for a new trial. this Court

Erancis, judgment In my J. (dissenting). a set aside murder case to in first has no authority and to substitute death mandatory jury-fixed pres- circumstances sentence of life Under imprisonment. an be limited must function case, judicial ent this for a new trial for a new trial on all issues order Moreover, assuming alone. even issue of punishment sen- the death commute power Court does have certain beyond it is acting one of life impose imprisonment, tence com- disregarded it has its so here because doing be- choosing in the statute standard set out pletely the two pen- The choice between tween the two penalties. alone, but in view, be made in my alities must all the evi- and after the consideration event any “upon 113-4. Neither the ma- N. J. 2A: dence [in case].” majority says nor member of the jority opinion to life imprisonment decision to sentences change of the evidence. was based consideration

I April a short time before testimony The reveals that hold-up and others Washington planned Laws Ter- Company the Public Coordinated Transport Service a discussion Oradell, minal at N. J. On April following Laws was produced. about guns, single-barrel shotgun him “if it showed how to handle it and told Washington was at all no means hesitate.” necessary gun by use the men, On 26 at about 3 :00 a.m. two of whom April three Laws, found to be held Washington up robbery terminal. While the progress, Christopher driver, a bus came on the scene. On Jaeger, ap- Jaeger’s admonition, faithful to Laws’ earlier pearance, Washington, hesitate. He blew did not head off part Jaeger’s with A blast. shotgun large portion the skull was found some from main distance part body. killing Jaeger was murder the first degree. 2A

N. J. :113—2. At it should point be noted that

519 a the to be for par the inflicted power prescribe ticular crime with the branch of legislative rests government, not with is part sovereign the courts. This the right of the to maintain order and to take life social or order. liberty when deemed interest of that necessary in The wisdom or propriety thus established punishment (within limits, constitutional not involved case) judicial matter for When Legis consideration. lature fixes a single penalty for mandatory particular crime, the have no courts alternative but to pronounce sentence. It when the lawmakers have prescribed only for minimum and maximum limits of provided punishment judicial be applied by have department judges discretion as to punishment to be administered. State Orlando, 119 N. J. L. Ct. (Sup. State v. 1937); Griffin, 84 N. L. J. Ct. affirmed, 85 (Sup. 1913), & State, N. J. L. 613 A. (E. 1914); Mach v. Ind. 355, N. E. (1932); Warren on Homicide § 2d, Law, ed 21 Am. (Perm. Jur. 1938); Criminal § The fact that Legislature prescribed punishment more than severe the courts affords no approve ground judicial for If otherwise, interference. the rule were then mandatory sen tences establishd generally our by Legislature could be dis regarded by courts, and a suspended sentence or sen of probation tence imposed. punishment has ordained Legislature as for murders * * *

such as that of killer “shall Jaeger suffer death verdict, unless the its thereof, shall part all evidence, after the consideration of recom- mend life in which case imprisonment, this and no greater shall be N. J. 2A imposed.” :113-4.

There can no doubt if the statute ended after the death,” “shall suffer phrase punishment would be If mandatory. Legislature had not made provision other penalty, judicial branch of the government be bound would mandate. If on appeal from such a sentence trial error appeared the record, the au- would to the error rectify of the tribunal thority appellate a life im- Obviously new trial. for a be limited to an order for the death not be substituted could prisonment sentence the statute in however, in adopting The penalty. Legislature, n —(cid:127)a a single form, qualification its did establish present — death penalty the compelling mandate on its qualification shall suffer murderer is that the for first murder. It degree a and after consideration death unless the jury In my all life imprisonment. the evidence shall recommend the judiciary does not this grant judgment, qualification had it before qualification than any greater authority all did, in view my All was added. the Legislature to lower authority do, intended to was to give — in its judgment if the death to life — trial appellate not the court’s either or judgment, appeal should shown. On clemency evidence was such that he of the court remained sentence, authority from death added the law- the same as before the was qualification shown, If kind was any makers. trial error either ease, or or of the guilt penalty aspect innocence a fair which was to the defendant’s trial prejudicial right not the law, there is indication according slightest intended to courts to Legislature empower the substitute a life sentence death sentence for the which the verdict case, mandatory. made such courts’ authority should considered confined to all (a) he retrial on ordering issues case, will be as discussed in detail (b) hereafter, a new on the trial issue of ordering punishment when- to that ever the error goes issue alone and cannot be said to have had adverse influence on the aspect guilt case, aspect clearly settled by the verdict of jury.

It should noted that the basic problem involved here novel. is not This Court dealt with it expressly State v. White, N. J. 158 (1958). There the defendant’s guilt clear, of murder the first and the jury re- turned such verdict. its During deliberations, however, case, of the court about the jury, inquired pos- if a verdict sibility parole life recommending imprison- ment were case, returned. as in this the court Again gave erroneous instructions on this Court subject. On appeal reversed the conviction and ordered new trial on all issues. does opinion indication that the Court give any felt it possessed the death sentence authority convert into one of life The same course should be imprisonment. taken here, alternative, unless as an which I believe war- ranted, remand is made for retrial of the matter of punish- ment alone. The majority opinion brushes aside State White the issue of saying this Court’s to a authority change death verdict to here, life was not raised. So no party to the raised the issue. It proceeding injected was sua the sponte by majority. of section

The the homicide of the Crimes Act re history murder, :113-4, to for N. J. 2A lating S. a for action reveals total absence of taken support by in this case. In Few under the common law majority Jersey, statutes, early no of murder were degrees recognized. On conviction of murder or of there was one plea guilty, but n — n punishment. The made it Legislature mandatory death. Paterson, Laws New Jersey, 1821 Revision p. p. of 245, 262. I have searched in vain for an intimation in case or law a statutory court, trial or could appellate, disregard mandate, and order life In imprisonment. fact, in early times judges endeavored to an dissuade accused from to an pleading guilty indictment murder, because he by plea condemned himself to death. As Chief Genz, Justice Beasley said State v. 57 N. J. L. Ct.

(Sup. such a 1895), plea “merely a provided ready facile road to the gallows.”

In 1874 the modified this harsh rule Legislature court, a murder, authorizing plea guilty of to pro- ceed by examination witnesses to determine the degree of the crime and to sentence Few “give accordingly.” Jersey Revision, 1709-1877, 68, 69, Crimes 239. If after §§ offense to be second degree court found the

such hearing terms), punish defined general murder was (which imposed. for the term was prescribed ment of imprisonment found, a was death sentence But if first murder was degree 1709-1877, Revision, Crimes p. New mandatory. Jersey Davis, Ct. U. S. Hallinger an indict defendant pleaded guilty L. Ed. (1892) statute, murder. After a hearing provided by ment for found him of first murder degree the court guilty Court him to death. United States Supreme sentenced even infirmity procedure, found no constitutional no trial on hearing. there was such right though murder indictment went to trial on plea Whenever re convicting defendant was jury upon not guilty, its verdict whether the was offense designate quired course, murder degree (unless, only or second first first involved, as in a murder strict felony-murder time the had no At this to make case). authority of life imprisonment. recommendation the death sentence impose In 1893 authority the court’s Section of the Crimes on a was withdrawn. plea guilty and to author plea guilty Act was altered so as to ban the of non-vult in plea ize discretion to accept the court its ** * to be shall be imposed “the sentence event murder of conviction of upon the same as that imposed 1893, 36, c. 83. p. L. This statute the second degree.” if a was also, today, plea guilty as it does provided thereafter, shall be disregarded, plea offered “it event, In as when a not plea entered.” such guilty accused, a “shall try was entered guilty N. J. 2A:113-3. the intention of the Obviously case.” S. in 1893 the rule was to Legislature change exemplified by in the death sentence imposed plea guilty Hallinger Davis, and to remove the death from the penalty Sullivan, 209, control. 43 N. J. 245-246, court’s denied, 990, 564, certiorari Ct. 15 L. Ed. U. S. S. Thereafter, 2d 477 unless the trial court accepted in plea cases, non-vult homicide the issue of guilt or innocence went to the and on a jury, verdict of first degree murder the court was death obliged impose the penalty. If prejudicial trial, error of kind any occurred at the appellate only court’s a new trial. authority was to grant 1916, for of the death following agitation abolition penalty, statute every amended to again provide person convicted at trial of murder in the first “shall degree suffer death unless the at the time of rendering verdict in such case shall recommend at hard life, labor for in which case this and no greater punishment shall be L. imposed.” c. 576. The p. legislative purpose was not to alter the court’s lack of power, appellate, interfere with the mandatory penalty. The statement on the bill when introduced makes this plain: purpose possible “The of this amendment is to make it jury, rendering degree, in a verdict of murder first to exercise clemency case where the death seems too severe under particular (Emphasis added.)8 the facts shown in that ease.” But for amendment, the matter of or com clemency rested, mutation such cases rest, and continues with still another branch of the government, the Governor. N. J. 8. 2A :167-2. The last change, made brought act to its substantially form, i. present e., that a person convicted of murder in the first shall suffer death “unless the jury shall its verdict, and thereof, part evidence, the consideration all the recom after * * *” mend life imprisonment. (Emphasis N. J. added.) S. 2A: 113-4. See R. 2:138-4; S. L. c.

The evolution of the Act, Homicide N. J. 2A:113-1,-4, over the years discloses no legislative disposition to confer courts, on the trial or appellate, any fix authority to extent of punishment as between life imprisonment and death. The statute as a matter of substantive law gives that to the jury alone. The Court of Errors and Appeals, Molnar, in

in. of the State change speaking & 327, N. J. L. said: 1945) A. (E. subject death, statutory punishment for first murder is “The only jury to the in its absolute discretion chooses the condition life; imprisonment hard labor for to at a recommenda- recommend however, except made, consideration tion that shall not after by incorporating the recommendation of all the evidence the guilt.” (Emphasis added.) of

verdict Mount, 30 N. Court, J. This State (1959) Molnar: with agreed responsibility jury of “Thus the had the the instant matter sole obligation passing death, to deal or was its solemn life considering possibility of an at with issue without all the necessarily indeed, appeal appeal court; to to this court justice of with- other confined matters than the wisdom holding imprisonment of the recommendation of life placed effectively statute has in the absolute discretion of

jury upon added.) (Emphasis evidence.” its consideration all the matter, later, in to the same this Court Somewhat referring fix spoke penalty the absolute discretion being life rather than limited imprisonment “upon its decision be made only by the requirement and after all the evidence.” v. John consideration son, J. certiorari denied 368 N. U. S. Ct. 7 L. Ed. 2d 195 (1961). after Court,

In Slate v. Mount referring diver- punishment, views about said also: capital gent views, regard opposing Legislature for the our has “With due fixed effect, policy by providing, the State’s shall have particular absolute discretion determine case before it justice of all basis evidence before it whether imposition will be better life served rather legislative policy given If this than the death. is to be sweep sympathetic entitled, judges to which it is our trial will carefully sway action calculated avoid in its choice appellate judges carefully rulings and our will avoid comparable J., N. which have a effect.” 30 for murder is a I the penalty pre repeat prescribing of a When terms rogative prescribed of the Legislature. substantive, mandate is one of mandatory single penalty, hand of the Court. law, and it is procedural beyond Constitution, this VI, II, the 1947 Art. gave Although § ¶ Court and pro sole to make rules authority practice law. In cedure, the to substantive grant subject connection the admonition Justice of the late Chief Vander bilt in certiorari Winberry 240, 248, 5 N. J. Salisbury, denied, 340 U. 71 Ct. 95 L. Ed. 638 (1950) S. must be should "subject heeded. He said the to law” phrase abe continuous reminder that our must power rule-making not be exercised law so as invade the field of substantive decisions ma through cases The presented appeal. jority opinion here on the grieviously trespasses Legislature’s substantive declaration as to the for first murder, and as to the which shall decide it. agency

No dispassionate majority reader of the opinion of my can avoid rul- the conclusion that are colleagues they ing expressly that this Court has the authority change a sentence, death a trial court after mandatorily imposed by a jury verdict of of murder in the a guilt first degree, sentence of life There is a imprisonment. some reference to so-called waiver of the death penalty by the dur- prosecutor a ing argument But this is appeal. judicial mere fillip. I am without doubt that in the future this case will be utilized as a a precedent vacating sentence one of substituting life imprisonment even when the prosecu- tor strenuously objects to such court action. See infra. fact, the language employed the present makes opinion the death plain sentence would have been changed if life imprisonment the matter of waiver had never been mentioned.

Much of the forepart of the majority opinion is devoted to establishing principle that this Court has to re- authority a duce sentence of imprisonment imposed by trial court in terms of minimum and maximum period years. that a sentence be excessive thesis projected even within the though case and therefore illegal, given minimum maximum fixed Legislature. limits reduce such not had occasion to our Court has Although An sentence, to do so is present. unquestionably felt always an and I have excessive sentence is one illegal back to send the cause judicial authority either reduce it at to the trial court or to to reassess the penalty, level, to serious Such appellate question. was not open action empowered is within the which legislative prescription judicial a sentence between the department to impose a minimum maximum limits. The legal propriety trial court’s boundaries is sentence within those although a matter for review. certainly appellate But that is not has the situation here. The Legislature established one for murder in the first mandatory penalty im- degree—death. The trial court had no alternative but to it pose when the returned a first verdict. The degree power life is conferred impose imprisonment alone, alone, statute on the jury and “unless” they, they after all evidence, it, recommend considering mandate The limit of trial or applies. court appellate function after first degree murder verdict is to determine if prejudicial legal so, error occurred trial. If in during the present law, state a new trial must be ordered. As I hereafter, shall suggest procedural matter and there- fore within the ambit of the Court’s constitutional power, can trial, we direct new limited to the issue of punishment, on this basis: If the trial error related to the issue of —alone error in example the exclusion of evidence mental weakness not rising level of insanity but offered legal under the recently promulgated Mount, v. doctrine of State supra,-—and the jury verdict guilt clearly justified and not open to any reasonable Court, question, my judgment, inmay its discretion order a new trial as to punishment alone. Johnson, N. J. State heavily relies majority Judge Div. Gaulkin 1961)

Super. (App. “to revise a sentence existed held appellate [in- ex- an where it is manifestly volving term] authorized limits.” cessive, statutory within even though how- action, That key appellate rule sound. The ever, under review manifestly is that the sentence be within the mini- although legislatively prescribed excessive No mum and maximum limits. member of the majority the death sentence is excessive. Obviously, here says sentence authorized for court only legislatively imposition when returned the verdict of first murder. degree Johnson, In relying majority overlooked a sentence Gaulkin’s Judge opinion: appellate original jurisdiction “[T]he courts have to do all accomplish justice, needs to he save those cases in which done to Super., trial must correct error.” N. had J. (Emphasis added.) That one, qualification is sound and should be here. applied Moreover Butler, it is consistent with State v. 27 N. J.

597-598 Butler, the defendant was convicted first robbery-murder sentenced to death. We re- versed and ordered a new trial because trial court denied a request by defendant to define the crime of On robbery. appeal, the State that if suggested the facts in appearing the record would not support verdict of of guilt robbery, this Court affirm should the conviction by in- “its invoking herent powers and sustain the verdict as one of murder in the second We degree.” disposed of the sum- suggestion marily, saying “we have no authority intrude exclusive function of the jury.”

My colleagues Johnson, cite State v. 34 N. J. 212, appeal dismissed, 368 U. 145, S. 82 247, S. Ct. 7 L. Ed. 188, 2d denied, certiorari 368 933, U. S. 82 Ct. S. 370, L. Ed. 2d (1961), furnishing some support their view. But of language the opinion must be in evaluated the frame- constitution attacked work case. The defendants of the statute the ground 2A :113-4 on of N. J. S. ality of the judgment guide no standard established after life imprisonment recommend whether to deciding at rejected murder. We of first guilt finding by was provided an standard adequate tack holding make or to the decision the requirement should for life imprisonment a recommendation withhold all the evi a consideration of and after “upon be reached of suggesting Court had no intention dence.” The action pro to take the drastic judicial power existence opinion being case. The concurring posed present v. Johnson clear evidence the author of State filed here absence of such intention. Culver, denied, J. certiorari U. S. N. 1387, 1 L. Ed. U 1441 cited 925, 77 Ct. also (1957), S. here. is irrelevant The trial court majority, imposed on Culver he was a fourth offender. believing life sentence he had been convicted two Actually previously only high Eol Therefore the sentence was incorrect. misdemeanors. resentence, and remand for new separate lowing appeal were on the basis of the two crimes. The imposed sentences vacated. life sentence was Defendant lack appealed urging in the trial court to resentence. This Court jurisdiction held that the trial court and an had appellate court simply an to correct term sentence illegal time and to one within the proper statutory limitations. impose See Kershner, 9 N. J. also, In re certiorari denied, 344 Ed. 73 Ct. L. U. S. authority R. evolved from S. 2:195A-13 of therefor the Criminal Act in Eule incorporated substantially Procedure 1:2-19 (c) 1948, and at in R. R. present also, 1:5-l(e); at the 2:7-13, Eule :7-13, level from later Eule 3 and now, form, more limited in R. R. although 3:7-13(a). R. 1:5—1(c), RE. majority opinion seems to reliance, is, course, a procedural rule. place great It says “if a of conviction judgment shall be reversed for error sentence, court render such appellate judg- * * ment as should have been rendered *.” (Emphasis In this there The case is no error the sentence. added.) jury found defendants murder first guilty the majority the evidence. says amply supported The trial judge lawful sentence he pronounced only could with verdict. how impose this, that But more than can this Court that life say imprisonment is the judgment that “should have been rendered”? On what procedural can basis it do so? cannot nor Certainly majority say, do they say, to after attempt all jury, considering evidence, erred recommend im- to life failing prisonment.

530 degree. in the first of murder guilty an accused finding after the sole has to the given view the Legislature In their punishment. the upon to decide duty, well the as as authority, of is related to the matter a trial error Thus, even when to reduce are alone, powerless courts appellate punishment life imprisonment. to by sentence returned a death Green, 209, 47 2d 302 P. Cal. in v. People Eor example said: Court Supreme 314 the 307, 2d (1956) People Bollinger “Construing said in section 190 this Court 25, 207, 191, the (1925) 237 P. amendment 196 ‘Before Cal. (Stats. 1873-74, 457) it read as follows: in 1873-74 that section “Every degree person guilty in shall suffer of murder the first ** beyond question language the It clear that section—“Every person guilty of in murder the amended of the prison death, degree in the or confinement state shall suffer first * * *”— jury trying same; life, of the the for discretion punishment changes in law as for made to murder two were punishment may degree—first, that be either death in first imprisonment; second, determining the discretion or life imposed punishment shall was vested alone. which Eor, * * * (1899), [Winston in v. United States as declared 212, 456], places 303, 19 43 the law no S. Ct. L. Ed. U. jury’s discretion, such exercise of nor restriction does presenting attempt palliating its to cases confine exercise * * * legislature mitigating circumstances The has “confided the punishment power to affix the within these two alternatives ’ ” * * *” jury. discretion absolute rule in This has existed California since People v. Leary, 486, 24, 105 Cal. P. court held: (1895). jury, court, law “The submits under the instruction of the question degree murder, any, if of which de- guilty any instance; fendant and section 190 of the Penal provides guilty Code further found one murder the first degree prison ‘shall suffer death or confinement the state for life, jury.’ the discretion of the Whatever have been the actuating legislature enacting consideration in minds of the 190,—whether they section because believed are there instances of falling murder within degree, the definition of murder in the first which, atrocity because characterized a less or other mitigating circumstances, punishment call milder than that death, something or whether their reason was else—the fact power they to affix the have confided the remains jury, absolute within these alternatives discretion of the two to the court to review their action in with no reserved respect." (Emphasis added.) Moore, 451, 2d 6, See 53 Cal. Cal. Bptr. also People 2d, denied, 348 P. certiorari U. S.

S. Ct. 5 L. Ed. 2d 189 The California Supreme Court has that it its as to said cannot substitute judgment choice of “even where we doubt the punishment may ap of the death when there propriateness also that penalty”; is trial error to relating only penalty, selection the death it cannot correct error reducing punishment, iCbut must reverse and trier of remand the question 901, fact.” 2d 7 Rittger, 720, Rptr. v. 54 Cal. Cal. People Linden, 355 P. 2d 653 645, Cal. 2d (1960); People v. 52 1, 338 P. 397, 2d 410 denied, certiorari 364 U. S. (1959), 849, 94, 81 5 L. S. Ct. Ed. 2d 73 also People See Love, v. 56 2d 720, Cal. 16 Cal. P. 2d Rptr. 777, 780, 366 33, Borchers, 36 321, v. 50 (1961); People Cal. 2d 325 P. 2d 97, 102 (1958). States,

Winston v. United 172 303, 212, S. 19 U. S. Ct. 43 Green, L. Ed. 456 referred in (1899), People to v.

dealt with the then federal existing statute which authorized in jury, cases, murder to qualify its of guilty verdict thereto, discretion, in adding its “without capital punish ment.” The United States Supreme Court declared that by that act of Congress question whether the accused should be punished capitally committed to the sound discretion of the “and jury of the jury S., alone.” 172 U. Ct., Ed., 313, at 19 at 43 L. p. 215, S. p. at 460. p. See States, also Andres United 333 U. S. 740, 763, 68 S. Ct. 880, L. Ed. 891, 1055, 92 1068-1069 (1948) (Frankfurter, J. That view concurring). reechoed the earlier opinion of the first Harlan Justice in Colton v. People Territory Utah, S. 9 U. S. Ct. 32 L. Ed. 870 (1889). of There the returned a jury verdict of death. The trial could rec- that they had advising

court overlooked court event life imprisonment, ommend error, that sentence. Bor impose could such its discretion reversed and ordered Court Supreme the United States Harlan said: trial. In so Justice doing new court, in the absence such recommendation the “Without of sufficient trial, grounds to sentence has alternative but a new no for instructed ease the were to While accused suffer death. they degrees, first and murder second as to what constituted in the statute, right, under to recom to their were not informed as penitentiary imprisonment labor for life at hard mend place their had called If attention been death. they statute, a rec he would have made such it punish thereby ommendation, enabled the court reduce the opinion are of the ment life. We directing erred to this court in not attention p. 86, p. 436, (Emphasis added.) matter.” U. S. at 9 S. Ct. L. Ed. the federal appellate recalled passing might courts continue adhere to the doctrine of non generally of criminal death sentences. United States reviewability F. 2d 605-606 certiorari Rosenberg, Cir.), (2d denied, 97 L. S. Ct. Fd. 687 (1952). U. The fact courts a general that such have statutory power ** * “affirm, or reverse” on modify judgments appeal has not as for been review of regarded justification legal 2106; but excessive sentences. U. S. C. allegedly Ap § F.R.D. 257 Sentences, Review of pellate few Within the weeks the United past States Supreme Jackson, Court in States 390 U. United S. Ct. L. Fd. 2d 138 (1968), construed the death penalty Bederal of the Act provision Kidnapping contains than stringent less N. J. S. 2A language :113-4. The statute says: * * * knowingly transports commerce, “Whoever in interstate * * * * * any person unlawfully kidnapped who has been * * * * * * punished for or held ransom shall (1) otherwise be

by kidnapped person unharmed, death if the has been not liberated jury recommend, (2) by if shall the verdict of the so years life, penalty term of or for the if death imposed.” 1201(a). (Emphasis added.) O. § is not 18 27. 8. The Government construed the to mean a that language defendant be tried who elects to cannot be by jury put death even if so jury recommends—unless the trial concurs judge punishment that should be capital imposed. rejected. This contention was The said: Court reject argument “At outset we the Government’s that Kidnapping gives judge Federal aside Act the trial discretion set jury aware, recommendation of death. So far as we are not 34-year history jury’s entire has judge. once of the Act recom- mendation of death been discarded Govern- trial The apparently judges ment would have us assume that trial either always agreed jury punish- capital have ment under with recommendations assumption the statute—an unrealistic at best—or they statutory duty that pendent have their abdicated to exercise inde- fact, judgment penalty. explana- issue of In simpler unequivocally that, is a far tion The one. statute states ‘if the verdict punished shall so recommend’ the defendant ‘shall * * * * * ‘shall,’ ‘may.’ *.’ word is acceding exception death, without recommendations of judges simply trial have carried out the of the mandate statute. urges Congress’ The Government nonetheless that we overlook imperative. might choice of the Whatever been assumed have past, we are the the now asked to construe the statute so as to eliminate jury’s power penalty approval to fix the death without presiding judge. reading,’ said, ‘This would conlrcm long judge ‘to the tradition makes that the federal difficulty courts the arbiter of the sentence.’ And so it would. The Congress intentionally is that passed discarded that tradition when it Kidnapping forcefully the Federal Act. Over the articulated objection jury sentencing represent would an unwarranted departure rejected practice, Congress from settled federal a version Kidnapping of court’s discretion and Act would have left an instead chose alternative that shifted from single judge inflicting to a of 12 the onus of accept suggestion jury’s death. To the Government’s sentencing merely advisory role be treated would return to the judge duty Congress deliberately placed the ultimate in other hands.” 88 8. Ot. at of plain The the implication quoted is language that the United States Court still Supreme follows the principle of

534 States, e., had i. that Congress v. United

Winston as the decision alone jury and to the committed to the jury be imposed. should penalty to whether the death that 4701, provide 18 P. S. Pennsylvania, of The statutes § de in first of murder the an convicted accused is whenever * ** or to death to suffer sentenced he “shall be gree the life, for discretion undergo * * * in manner ease, which the the shall jury trying Smith, 405 v. In Commonwealth fix the provided penalty.” Pa. 2d 619 Court of 176 A. the 456, (1963) Supreme reason of by out it repeatedly pointed state said had not be changed verdict of death could the jury statute In case defendant Supreme the Court. by reduced jury’s was an abuse of the discretion urged penalty the and criminal record. In deal of his mental defects view ease, an court earlier quoted the contention the ing with Edwards, A. 380 Pa. 2d 53, 216, Commonwealth effect: following the (1955), of of PS The Penal Code P. “Section L. duty penalty fixing the between vests in the of § imprisonment upon degree death and life of first murder. conviction sentencing court first No discretion allowed for degree penalty jury. murder has been fixed Nor where court, upon judgment has the review of for this sentence imposed degree murder, first jury’s verdict, which was accordance with legal penalty warrant to reduce the so fixed: * * * this act For court assume to otherwise would unconsti- province tutionally trench Board of Pardons which agency as an functions another coordinate branch of our State government. Neill, supra 276], [362 Pa. 2d Commonwealth A. degree penalty murder a conviction first with where of death !i* * affirmed, aptly opinion [its] the court concluded with the * * * imposed penalty ‘The succinct statement and, of death * * * they in whom it since the statute vests discretion penalty, to fix is not for court this to review their decision.’ * * * Court],—‘Whether Or, [this as stated elsewhere fixing penalty a wise exercised discretion at death is not Simmons, matter for court determine.’ Commonwealth v. 391, 405, 2d A. Pa. lacle jury in a court change specified by a conviction scrupulously regarded by been murder has this court first duty fixing penalty capital was ever since the the cases first May 14, 1925, reposed Act P. Since the the L. 759. single penalty date, has been a where the there not instance degree murder, jury, for a the has been interfered first fixed appeal—a with on fact heretofore remarked which we have several omitted, emphasis (Citations added.) times.” case present The majority opinion suggests from departed Court has Pennsylvania Supreme of Commonwealth v. It Commonwealth v. rule Smith. refers to Pa. A. 2d 16 A. L. R. 3d Aljoe, (1966) with trial court where the court case remanded the Aljoe to sentence the death and penalty directions vacate to life imprisonment. 18 P. the is- statute,

Under the Pennsylvania § are determined sues guilt separate adopt). can and should trials which I we (a believe procedure that, upon fail to agree The jurors Act also if the provides if no them penalty, judge may discharge trial ordered, “shall sentence he retrial the indictment already recorded upon to life defendant imprisonment” In dur- Aljoe, first murder. verdict of guilt case the prosecutor trial of the ing punishment aspect about the jury remarks to made unfair and prejudicial from Court, on Supreme appeal The parole. need for new was no reversed and said there

sentence, as if the The was then treated trial case punishment. e., mistrial, i. record had produced conduct prosecutor’s a jury the same result that was considered have produced the Court used would achieve. On basis disagreement to direct the court to express statutory authority to life The court’s imprisonment. the death change strained, but in the result it did is rather reaching logic of Commonwealth holding intend to v. Smith. It impair “clearly distinguishable.” said Smith cites two additional majority opinion Pennsylvania Green, eases, 396 Pa. Commonwealth 151 A. 2d 241 Garramone, and Commonwealth v. 307 Pa. 507, 161 (1959) A. 89 A. L. R. 291 In of them the de each situation (which fendant to murder. pleaded guilty court the trial could not arise in Yew statute Jersey), by punishment, decide to hear evidence to proceeds The Su death or life imprisonment. be either of the death penalty Court held that preme imposition if on appeal, such a reviewable statutory proceeding life reduced to bemay too severe in of the evidence light awas v. Green there In Commonwealth imprisonment. Smith, v. of Commonwealth dissent the author strong that be noted also, In this connection it should supra. statutory California, is given express where the trial court a penalty stemming discretionary authority modify verdict; from a the trial court jury only the rule is that an tribunal. do so. Its decision is not reviewable by appellate Linden, 2d, 410; v. P. at v. p. People 338 People 2d, 909, 7 355 P. at Rittger, supra, Rptr., p. Cal. that of Iowa’s statute is similar to respecting punishment Hew the pun- It to direct whether Jersey. jury requires Iowa Su- ishment shall be death or life The imprisonment. to the preme solely Court has held that the statute leaves it a between jury elect the two permissible punishments of first court cannot finding degree murder. Therefore the Brown, reduce death fixed v. 253 jury. State 658, Iowa 113 N. W. 2d 286 (1962). O’Donnell, case,

An Iowa 337, earlier State v. 176 Iowa 157 N. W. 870 (1916), considered the problem length. found jury defendant of first guilty degree murder and assessed the death penalty. The Court on Supreme appeal found the evidence a first inadequate support degree conviction because of insufficient proof of premeditation. it reversed the Consequently judgment ordered new trial. It was that argued instead of trial, a new ordering since the evidence supported of murder finding second the court should degree, reduce the sentence to life im- the maximum prisonment, sentence for second mur- der. The Supreme refused, Court saying:

537 manifest, statutory then, “It election between two that punishments solely jury, change punish- is left such changes ment this court makes election and deals with an * * * wholly jury. jury, court, act It is the imposed punishment. power change It has no punishment; nothing merely has but formal to formulate predetermined into sentence what has exclusive * * * grant Legislature. from the Having duty, once determined that has failed its then punishment by determining to fix the what the evidence establishes attempt jury, an to turn this court into a substitute no matter guise proceed.” pp. in what we N. 157 W. at 874-875. See, to same effect, White v. 64 Rhay, Wash. 2d 390 15, P. 2d White, 535 (1964); v. 60 Wash. 2d 551, 374 P. 2d 955 Odom, v. 200 (1962); State Tenn.

S. W. 2d State, Williams v. (1956); Tenn. State,

S. W. 2d (1950); Batts v. 189 Tenn. State,

S. W. 2d 190 (1946); Mays 143 Tenn.

S.W. 233 (1920). Williams State the defendant tried for murder.

During deliberations the asked court “if whether, we this man a for a give sentence term will it years,” mean that i£he will stay have to the whole time?” prison The court answered: “Not It would necessarily. depend of upon the behavior the and the good of defendant attitude the law, Parole Board but under the sentence indeterminate with which to do.” something you nothing have After deliberation, jury less than five minutes further the returned with the death the Supreme On penalty. appeal Court was trial, reversed and new that it holding ordered error for the trial to enter into discussion with judge the as to the effect of certain jury Among punishment. other it said: “Evidently the the instant things case would sentenced have the defendant to some term in the had penitentiary they believed that he would have to serve the full term the sentence.” No suggestion was made that the tribunal could appellate reduce the punishment rather than order new trial.

538 304, Ariz. Goodyear, also v. cite

My colleagues 100 Ariz. 404 P. ou other grounds, 2d 397 reversed (1965), State, 161, v. 40 Okl. Cr. P. 2d 566 Hubka (1966); State, 244 W. S. Davis 155 Ark. 267 P. 864 v. (1928); P. Ramirez, 34 Idaho and State (1922) State, In Davis support position. their (1921) revealed circumstances a 3-2 the court declared under the committed by evidence, rape the death sentence show all to tend was too severe because the “circumstances innocent entirely was witness prosecuting was re force.” the sentence victim brute Consequently said to dissenting judges duced life imprisonment. sen rather than death to life power impose imprisonment In solely jury. tence conferred statute on was at death view, punishment their when the fixed the to sustain finding and the was sufficient evidence Court no reduce the authority had guilt; Supreme punishment.

But to the cases seem have point, emptied more later State, value as precedent. Davis of real Allison v. W. 2d 442 re Ark. 164 S. Court (1942) Supreme life fused to for a death sentence substitute * * * otherwise,” holding in Davis was “although will be observed that the discretion “it conferred saying, * * * the jury, relates to and not Act] [the 2d, State, Further, W. courts.” 164 S. in Nail v. Ark. 328 W. 2d 836 a murder case (1959), wherein the set penalty, defendant appeal the sentence excessive and should be lowered urged life The same court cited Allison and imprisonment. matter of assessing punishment said: strictly “[T]he and we within the province jury, have no the fixed unless the change fails to proof for which the charge sustain'the defendant is convicted.” 2d, W. at p. 328 S. to v. Goodyear,

With respect should not be over- Arizona A. statute, R. looked that 13-1717, sub- § a sentence from that on appeal B, provides section specifically have court shall “the it is excessive the ground of the punishment or duration extent to reduce the power but is proper, the conviction if, opinion in its imposed, the circum- under than is greater the punishment imposed ease the such be inflicted. case ought stances sentence, not more any legal shall impose court supreme in its opinion imposed, than that originally severe is proper.” Ramirez, Court con- Supreme divided Idaho

In State review as suffi- appellate statute governing strued its broad a death sentence authority to modify to confer cient when the trial error life it to changing trial, and a new warrant reversal sufficiently prejudicial crime and the type relating and where the evidence was such as to convince of the defendant and character warranted” and was “not the extreme penalty court This type excessive punishment. therefore represented have been followed Oklahoma which seems to procedure, to substantial criticism. See well, subjected has been infra. State, a defendant of murder convicted In EubTta death. There was no prejudicial and fixed punishment his but evidence conflicting trial error the record. Substantial been introduced. It was shown had sanity of defendant’s had to kill or the de- injure deceased threatened was considerable It was also there fendant. shown and decedent defendant over animosity purchase between defendant’s The Criminal Court of a farm owned mother. it had the to review power held that but legal Appeals all After the circumstances reviewing excessive sentences. homicide, it found the of death to this relating excessive, and ordered reduction to life imprisonment. to be on Minimum Project The A. B. A. Standards Criminal Justice, Review of Relating Appellate Standards Sentences Draft, out that in April 1967) points Oklahoma the (Tent. uses “the review of Criminal Appeals Court effect defendant for errors that were compensate committed at trial but that do not rise to the level of for re- grounds ** * versal.” The comments that “the report practice 49-50. specifically disapproved.” pp.

The A. B. A. just cited is referred to col- report by my leagues on three occasions as a source of majority for their support views. At one point opinion refers to in each suggestion case different sentencing contributes significantly to unfounded between disparity sentences. Then it from 17 of the A. A. quotes page B. report that this is “all the more reason for judicial review in those cases where the participates The sentencing.” opinion note, however, fails the report expressly says it “does not deal with whether the death should penalty an be available so, sentencing alternative if who should in its participate 13, 43. imposition.” pp. Later the report “Both points out the Model Act and the Sentencing (§ 12) Model Penal Code 6 and (Articles 7) clearly deny role with the sentencing, again exception cases.” 45. capital p:

It important note that in the four cited cases the courts, in appellate asserting power review, reduced the to life penalty imprisonment because con sideration of all the evidence found they sufficient mitigating circumstances to induce the conclusion that the extreme was too severe. if a Undoubtedly error of legal nature involved in the present case appeared cases, in those a new trial would have been ordered. See Calton v. People Utah, S., Territory Ct., U. at p. Ed., 32 L. p. Moreover, in those cases the test applied by appellate courts was whether, on the evidence, the death penalty constituted excessive punishment. In our case no member of the majority says that after a evidence, review of all the finds the he death penalty ex said, I cessive. As have already even if our Court had to reduce authority here, the sentence which I dispute, the action of the majority is violative of the single standard whether the determining sentence should be death or

5-41 e., it and after “upon life i. must done imprisonment, Otherwise, evidence.” for an error a consideration of all the here, snch judge of law as occurred of the trial charge must be new trial. court appellate remedy on the majority puts emphasis considerable opinion State, Nev., 2d 18 case of 436 P. Spillers recent That too was a 3-2 of the Court with a opinion Supreme dissent. The declared unconstitu strong prevailing opinion set penalty tional scheme out the statute. Defendant a convicted of jury was which fixed rape by penalty The statute in on a death. of question provided plea could guilty jury not defendant be tried by court, if he waived trial with of jury the consent the State If of the court. tried court approval by the alone and convicted, the was limited to punishment imprisonment for less than 20 years. The death could not be But if tried by jury, that was imposed. body empowered to the death We need impose not discuss the penalty. portion as of the statute condemned unconstitutional. Accepting of for our declaration invalidity, purposes means that of the death sentence imposition was because illegal statute authorized two different penalties for the same crime. remedy The the court was applied by to regard authorized as the same whether the punishment trial the issue of was with or without guilt jury. Consequently, guilt being the court the sentence to plain, changed the maximum open court, for a “imprisonment term of not less than extend years to life.” The lack of to our In analogy case is obvious. effect, the Supreme Court struck from the statute the simply unconstitutional clause death, shall if “or he suffer the jury by their verdict affix the death penalty.”

There remains for consideration the three District of cases stressed heavily Columbia the majority opinion. States, first is Prady The United 121 U. S. App. D. C. F. 2d Cir.), C. (D. certiorari denied 382 U. S. 86 Ct. 15 L. Ed. 2d 160 this case a murder first degree the defendant of convicted nine- of the A majority fixed the death. punishment but found of the guilt judgment affirmed the judge part court advised inferentially 'which court error charge had to to verdict with respect punishment that the lack because to be incorrect This said be unanimous. in order” under altogether “is as to unanimity The IV, 1965). 22 D. C. statute, (Supp. Code § to punish if cannot as statute provides agree either jurisdiction impose ment the court shall have found majority or life imprisonment. sentence was polled in which the jury further error in the manner return of their verdict. as what course troubled were Eight judges One voted re- judge to the sentence. respect with pursue murder. of first degree verse because insufficient proof as one para- This in five well separate opinions resulted e., a result, change which dictated the i. per curiam graph to life There was no ma- imprisonment. the death sentence in Pour an jority opinion. joined opinion which judges in 28 found U. G. 2106 to authority “modify” 8. § sentence; a fifth went judge along because the government entry of life judgment had indicated be “a course.” But proper would fifth in a judge, proclaimed his comprehensive opinion, view that capital “the enlightened cases cause efficient criminal ad- ministration is best served aby trial. In two-stage is focused stage, inquiry upon first the issue of whether is as guilty the defendant charged. second, the jury matter of to be up penalty takes exacted.” He went say: to on evidence “It obvious that relevant the one well be unre- equally inability

lated the other. It obvious that to adduce operate prejudice both can evidence of both the de- public in fendant and the the elucidation those considerations entering directly into most assessment seriously purports to have been arrived at rational means.” p. 2d F. necessary authority Of the four who found judges in the view that in 28 C. two concurred U. S. § two reserved bifurcated trial was desirable procedure, four remaining judges their bifurcation. The positions to life dissented from the order the death sentence changing no statute imprisonment, justification there was saying un case law for out such action. Their opinion pointed statute, murder, der the of first degree finding must be death penalty jury unanimously unless the recom Therefore, mends life it said that since the imprisonment. jury made no such recommendation and did not report as to disagreement the death sentence was re punishment, statute; by the “it must follow a quired verdict of guilty unless the jury affirmatively acts the manner detailed 2d, in the statute.” 348 F. 113. These four judges that in agreed the absence of authorization the Congressional federal courts have no power to adopt two-stage practice.1 The disparate views of these conscientious judges very furnish little in the of substantial way for the support in our majority opinion case. States,

In Coleman v. United U. S. D. C. App. 357 F. 2d 563 C. (D. Cir. 1965) defendant had been con victed of murder in the first sentenced to death under the mandatory statute then in force. The conviction was affirmed 5-4 in the Court of Appeals, 295 F. 2d and certiorari denied United States Supreme Court, U. S. Ct. 7 L. Ed. 2d 615. While the appeal pending Congress abolished the mandatory death and left the issue of death or life imprisonment judgment the jury. The statute provided that as to cases already before the court for sentence or resentence “the in his judge may, sole discretion, consider circumstances and in mitigation aggravation and make a determination as to whether the case in his opinion justifies a sentence of juncture appropriate At this say only it that unlike our Court, possess the federal courts do not the sole under the practice Constitution to deal procedure. with matters of and

o44 de- sentence the he shall life in which event imprisonment, * * *” 2404. D. C. Code fendant to life imprisonment. § unsuccessfully Act, this defendant after Shortly passage the On appeal under it from the trial sought judge. relief to con- trial directions was with judge cause remanded the in “of an to aid him consideration evidentiary hearing duct A in dif- aggravation.” and mitigation circumstances and refused to reduce ferent trial held such judge hearing review, the death On third which is cited penalty. case, the Court of found error in the trial Appeals procedural vote, aby 6-3 rather judge’s handling hearing for again hearing than remand before another di- judge, death rected that sentence he reduced to imprison- life ment. the abolition Plainly mandatory death sentence was in measure for this un- Congress large responsible The majority usual result. said: designation judge “When we sustained than of a other judge to consider sentence as far we went as we should process go upholding sentencing lacking participation judge presided go who To trial. further this sole re- maining resentencing mandatory case due to abolition sentence, designation judge, direct of still another support any applicable law, finds no solid Rule or reason.” added.) p. (Emphasis 357 F. 2d at 572. The continued: majority though add, unnecessary decision, “We to our capital punishment no one recommends in this case. The United doing from States refrains so. The Probation Officer recommends against Chaplains, Protestant, Catholic, it. two one one recom- against testimony mend during it. The past indicates these years appellant only penitent has not remorseful, been but has likely subject become most rehabilitation and influence for good prison.” 357 F. 2d at ad This hoc decision subjected to a strong dissent which referred to the federal long-standing rule that appellate courts have no authority modify a death sentence and one of life impose imprisonment. The dissent said: proper question whether is a “The Congress policy. peculiarly legislative Once the for crime one appellate capital punishment, provide federal has decided including any sentence, power a death to review courts lack the * * * imposed. validly sentence * * * legitimately however, Assuming, find that we could that judge failing erred to consider certain circumstances equally mitigating, case as the law is clear that this authority modify death sentence and lacks itself court imprisonment.” p. impose 357 F. 2d a sentence of life 574. States, The dissenters referred to Gore United U. S. 2d 1405 386, 393, 78 Ct. 2 L. Ed. wherein (1958), an Court declared that as appel United States Supreme a sentence, late increase or reduce court it had no power 2d, n. 3. 357 F. at p. They even death sentence. See trial error affecting declared also that when there was was limited to sentence, remedy matter of the appellate 2d, for resentence. F. new trial ordering remanding here is Austin v. case cited by majority The third States, In that 382 F. 2d 129 C. Cir. (D. 1967). United and fised sen murder found first degree ease the was no doubt about There life imprisonment. tence at defendant; the essence of of the homicide commission ad a divided court On insanity. appeal was his defense a first degree to support insufficient the evidence judged verdict. for a second degree conviction, ample but murder verdict was the first degree that since said majority been shown beyond murder had degree and second illegal and a of sec finding government, doubt a reasonable in the necessarily incorporated murder ond degree entry of for the remanded case should verdict, court unless the trial murder, of second judgment justice.” interest of in the a new trial “determines court majority attention escape It should dealing were they opinion a separate plain made They said: not support. would the proof a verdict with equate intention in this with an action case should our “No one holding step we have the direction of to take Judge imposed by As Court. power the District of sentences of review out, appellate points no to alter courts ‘have Leventhal ” express authority.’ 382 F. in the absence sentence lawful p. 143. 2d at of of explanation added footnote, by way In a majority the Coleman and Frady, supra: power principle in the absence to a sentence [lack “This of reduce by statutory authority] explicit this court’s not disavowed of * * * Frady opinions and v.

en in Coleman v. United States banc * * *, invoked because of 2106 was States where Section United sentencing process not be remedied in which could an error the p. 141, n. a 382 F. 2d at on remand.” Ap- of the Court above, the action As has been shown O’Donnell, supra, in Austin to contrary is peals Butler, N. W. 871 and to State Iowa (1916) 27 N. J. 597-598 (1958). both jurisdictions in the various The review of the cases in favor of the and, the according majority opinion, against sen- to reduce defendants’ power view that this Court has abiding has left me with the tences to life imprisonment, and study no The authority. conviction that we have such in however, because wholly is not rewarding, comparison clear language the result must be dictated analysis last own statute. That viewed language, particularly of our evolution, exclusive to the gives authority of its light sentence, and death between life when the evi- to decide a verdict of first murder. supports My dence in that lead me to from the regard quote conclusions dissent States, v. United supra: in Coleman majority acting only expediency from “I fear and with * * * seizing shortsightedness grave (c) [Revised Rules 1:5-1 * * * supervising as a basis for 1:9-1] [this sentence]. and developed by exceptions subjective will such a The standard depend likes, dislikes, only prejudices sympathies on can who, well-intentioned, judges substituting however are in fact personal philosophy our civilization of what is best for * ** existing replacement 2A:113-4] J. S. [N. other men, unfortunately necessarily results This but rule of laws. legal authority.” unsupported F. statute other either p. 579. 2d at is more serious than majority excerpt The error At Coleman and Austin the Fed- Frady, describes. least Court of found the evidence insufficient eral Appeals the sentence It obvious that support imposed. perfectly evidence verdict sentence our supports case, and there slightest suggestion contrary. is not from the fact that the defendants the action oppose Aside the reduction the sentence de- majority, unfairly of its public statutory right prives gave issue punishment. Legislature public cannot and should not take it away. this Court right; if “we are to colleagues’ opinion suggests keep My who with the drafted the Constitution delegates faith” vision,” our to match their transform this “and should not be sentence to life found competent if those men envisioned a need wanting. Certainly had of which never been authority, the desirability for or of our State, in the history they exercised recognized the authority by express have established language. would that even on clear the dele- to assume unwilling day I am then, What saw and clearly, see forever. they could gates of form demo- tripartite need for our of the perpetuation was of each of independence and the its parts. government cratic of document fathered they find in the language not the I do judicial an the branch of the permit of intention any sign valid of the enactments nullify legislative government branch.

II has no to reduce the death authority this Court Since here, what course should the take? The appeal sentence eourse, and the one followed in our previously conventional 548 court’s error in the trial

State, is reversal for the obviously all was issues. new trial Such and remand charge White, J. 27 158 N. (1958). the order in State he indicated could the Prosecutor argument At the oral witness who testified one out-of-state important locate of Prosecutor’s because Primarily trial. first in a witness, he felt he was not one situation with this e., issues, all i. guilt a new trial on to take position much was focused But so attention punishment. reduce the death sentence this Court could whether question rule was made of the life no mention of of testimony permit reading would new has long witness to the at a trial. It unavailable ease, a criminal if either that on retrial of been settled witness or defense who testified the original State an unavailable, transcript since or become official has died on direct and cross-examination testimony of his in Rule jury. principle incorporated read to the recently by Rules Evidence both adopted 63(3) 1967, L. Legislature. this Court and Joint Resolution 1290, Former California testimony, 5. Evidence No. See also § Texas, 1965, 299; L. Pointer Code, c. v. State approved L. Ed. 400, 1065, 380 85 Ct. 13 2d 923 U. S. (1965); S. Alabama, S. 85 U. S. Ct. Douglas State of L. v. Hogan, Pd. 2d 934 132 N. J. (1965); L. 1944); Wigmore, Ct. Evidence ed. (3d (Sup. § 11 A. L. R. 2d Annotation, See also Barber v. 1940); 20 L. S. Ct. Pd. 2d 255 Page, U. State to have the the right testimony Since read at a witness retrial was missing overlooked in the and on oral argument, parties briefs quite obviously waiver the death penalty -the so-called Prosecutor on a different takes during argument complexion. The he referred to as being obstacle the practical way of a all issues does not exist. The new trial on majority opinion, suggestion to the to be discussed referring hereafter that remanded for a retrial matter be limited to -the punishment fairly new could alone, “The that says: suggestion of many read the thousands of pages be called in lieu trial, hearing at the of live wit- former testimony discus- nesses, to be too unrealistic to appear require would The sug- The record contains no such suggestion. sion.” that the of the witness testimony single missing is gestion nature on proceeding to the whatever the jury, be read burden, of justice remand. Such the interest achieving defendants, as the not one. heavy for the State as well calling what I cannot refrain from me to brings This waiver made Prosecutor the “so-called” death penalty set fails to oral The majority opinion .the argument. during prior forth full situation. The Prosecutor said that and con- his the trial of the case he consulted conscience murder, that cluded, of nature of this because the heinous His penalty. him to seek the death public duty his required was as to the same when opinion duty appeal view Court’s On aware of this argued. becoming had committed error responding inquiry trial court “a can render as to whether verdict life without and make possibility parole not retry the Prosecutor feared that he could binding,” if could punishment case as to both he guilt produce For reason, witness. he re- important missing retrial, ordered, if be limited to the issue quested alone. It from the briefs and the punishment plain oral that in the limited retrial argument making suggestion no consideration to the State’s to read the right he gave a retrial whether ordered on all issues testimony witness’s alone. when Consequently, pressed by or could not have a retrial Court to assume he as to pun- alone, and to on that say ishment whether his assumption be a reversal of the and a judgment choice would new trial an order acceptance on all issues court reducing to life he sentences imprisonment, reluctantly said preferred downgrading penalties. he Prosecutor put were from the Court questions were, answers His the death penalty. terms of his waiving waive, have the purpose “it is my position * * * power. expediency I have It is that I a a jury power. very strong * * * have no power [apparently conviction ^[*] * under the ^[*] because of the [0]nly that I do not for the law to absence of the will take half a witness] loaf, better than I would say none. I would make * * ^[*] My a wish, as deal. I brief, back on bifurcated stated is that the case go assume it would back on again go basis.” Pressed basis, he said “if I call it please, the Court want to because I feel other I would expediency, way. strongly I will take life I say imprisonment. have to that.” On say asked Justice being Schettino: “Assuming who for first the same witnesses were available retrial, you say you would trial are still available for would penalty?” be satisfied instead the death with life responded Mr. Callissi sir, I

“No would not.” of a known a voluntary relinquishment If a waiver the descrip- fits scarcely language Prosecutor’s right, ma- clear that earlier, it seems tion. indicated But, as without his grudg- the same result would reached jority have concession. ing Eirst, the Prosecutor beyond dispute.

Two factors are has no death change this Court contended that that such has been authority to life imprisonment; sentence Second, he in- jury. Legislature committed has no to make waiver of the authority sisted prosecutor trial which would be during death before or penalty binding an court after appellate or on verdict jury, returned. My had been penalty agreement on the domain legislative when it trespasses Court under- to reduce the sentence has been already expressed. takes As of the prob after consideration claim, deep the second statute, by reason convinced that lem I have become waive the death cannot :113-4, 2A a prosecutor N. J. S. when, at on the binding and make the waiver a conviction indictment, a he seeks the trial of murder a finding by aon says first murder. The statute degree un death shall of first murder the jury punishment degree a con after the jury less recommends life not vested has The Legislature sideration of all the evidence. that he say jury to the the with to prosecutor authority re cannot jury waives the death and therefore the penalty, in the statutes anywhere such There is penalty. nothing turn from away can take which even the suggests prosecutor lawmakers. it alone conferred on much in administering has discretion prosecutor law. a second degree he could seek Undoubtedly criminal in from if his Jury judgment murder indictment the Grand Jury Grand facts warranted no If the greater charge. would such an the death indictment, penalty returned at trial in trial of a first Eurther, degree not be the case. on the case, tell murder a can in his discretion prosecutor and the court that is not death seeking the State a jury In such would unlikely situations it is penalty. a return verdict death carrying penalty. Ordinarily, prosecu- the court its would of the charge speak favorably decision not to ask for death. tor’s But neither the nor face prosecutor could, the court of the mandate, statutory take from the away right its on life or duty decide death for accused. quantum

Regardless discretion the prosecutor in administering law, criminal possesses the discretion be exercised within must the limits of the authority conferred and the duties him imposed by statute. N. J. 2A :158- in support of the view a Apparently has prosecutor authority bind the jury his decision seek the a first murder degree case, the majority refer prosecutor’s authority to only seek second murder from

degree Jury practice indictment the Grand (a cases I proper have advocated. See State long Sullivan, J., 43 N. refer also They at p. 346). his court dis to seek and obtain from the trial authority missal or nolle of a murder indictment. pros, first degree Reliance on most such discretionary authority surprising. Obviously to seek a second prosecutor’s authority degree murder him to do so in indictment does not empower in ease which he a first knows on the facts warrants degree dictment; nor him would such to obtain authority empower a iiolle if he pros, of first murder indictment degree knows he can trial with and evidence proceed to witnesses clearly first murder. willful Such failure to showing his “all law discharge statutory duty to use reasonable and * '* * ful for the indictment and conviction diligence offenders the laws” against would constitute misconduct in Winne, office. N. J. 152 Nor is the situa State v. tion changed by the undeniable fact that a prosecutor may decide to seek the death on a properly penalty first murder degree indictment and that as a practical matter the in all jury likelihood in the great majority of cases will g'o with the view along prosecutor’s that the extreme penalty is not warranted. The can no prosecutor’s authority rise than the higher criminal statute he is enforcing. Arrogation of power to himself in of statute, excess even if in, would never frequently engaged justify its The exercise. wisdom of the statute control of the death giving penalty jury first cases is not degree open consideration by this Court. That rests in question legislative hands.

In 1955 in State 19 N. J. Pontery, 457, the prosecutor told the jury the State was not asking the death penalty. a, result, As the trial court in its charge to the jury said that if a verdict of first degree murder was returned it had to be with a recommendation of life imprisonment. This Court declared that charge to erroneous. It said, “the court could properly have charged jury that [trial] under these present circumstances it would assume, as did the prosecutor, that the death not be would returned it was for, not asked but the could not be of its stripped right J., do so given 19 N. Legislature.” at p.

In 1965 Court this an issued administrative directive on subject, entitled Re Waiver Death J. Penalty, 45 N. all (1965), Superior Court was County It judges. felt that practical difficulties a jury drawing when prosecutor was not the death seeking penalty warranted memorandum. By it, the trial were courts directed in such cases to instruct the jury that verdict murder in the first must be accompanied aby recommendation life imprisonment.

I joined But directive. the more study exhaustive of the made problem in this case me convinces were we wrong and that the directive was an in- encroachment dependent Legislature. Under the circum- stances, in my judgment should be withdrawn and the rule of v. Pontery revived. A sound view on the subject expressed by Washington Supreme Court Rhay, 2d, White v. P. at p. 540: he infliction “Petitioner mistaken when assumes way involving capital penalty in is in deputies, conducting dis- death cretionary trials cases attorney, prosecuting with the or his the trial for the discretion vests neither in counsel Such state. jury. court, solely nor the but and the alone finding.” makes this Iii since connection, notes that majority opinion earlier in this N. J. (50 159) case filing opinion new practice “very rule has been our Court which adopted by with the broadly provides” prosecutor that “the approval R. the court waive the R. If penalty.” death 3:1-3A. “very the words are broadly” signify pur- intended to that the pose of the rule was to this with appellate invest Court over a death sentence which did not exist or to previously, authorize the prosecutor appeal to waive death penalty which he and obtained from I sought the jury, deny it. No

554: the reference to one knows better than my colleagues related to the trial “the of the rule approval court” the believe, court. neither Moreover, if, firmly I now a jury- nor make prosecutor authority has any court have only waiver rule can of the binding penalty, decides, Hereafter, significance: prosecutor when the he case, to or trial murder prior first during degree necessary will not ash for the death it will be penalty, him to obtain informs of the trial before he consent court mur- jury of his nature of the view that the non-binding der such that he does feel seek the obliged death penalty. conclusions. inescapable

All two foregoing produces claim that our Court has The Prosecutor is correct his imprison- the death sentences to life authority no to reduce that he is also contending ment. He on sound ground before or during waiver of the death penalty, cannot make case, which would be first murder degree the trial or Under the circumstances on the the court. jury binding cannot draw for its vaca- support majority opinion from the so-called waiver by of the death sentences tion the Prosecutor.

Ill adopt the Court should argues The Prosecutor trial of murder cases in trial procedure bifurcated cases, in such means simply This practice State. our In the first stages. in two stage, proceed would trial and decide the issue of or guilt would consider in the first re- of murder If a verdict innocence. e., into the second i. move stage, would then turned, the or life punishment—death by determination imprisonment. case when the accused pleads criminal ordinary

In the trial, a trial judge after found guilty isor guilty presentence until a report prepared is imposed sentence no and submitted officers sen- probation experienced mandatory. R. 3 tencing report R. :7—10 Such judge. (b). Culver, of 23 N. J. 495. It is a supra, State biography life, education, defendant, over ranging family his activities, mental experience, capacity, employment religious record, etc. any, if community criminal reputation, previous in of aid to trial reports judges Such are immeasurable crime. to the offender as well as to the fitting punishment White, J., 27 N. 183-184 at pp. (concurring trials, of all opinion). Yet most serious criminal homicide cases, until recently jury when inexperienced laymen decided that accused of murder in guilty the first were whether he degree, they decide required should die or sentenced to life imprisonment solely basis of the evidence to commission of the crime. relating Mount,

In State v. Court decided within supra, this reasonable limits, evidence of an accused’s back- general life, family education, mental and condi- ground, physical like, tion should be admitted at the trial of first cases, murder as an aid deciding matter of if a is made. Mount finding guilt awas step But right direction. it has practice limited Trials cases efficacy. always murder have been e., unitary affairs, i. guilt issues of and punishment are of in disposed one Thus a proceeding. defendant who as- serts he is innocent of the killing finds it im- frequently unwise practicable psychologically to take advantage the Mount doctrine. It is understandably difficult for an accused to his assert innocence and seek an acquittal, at the same offer time background evidence for the purpose from asking clemency if his claim of innocence is disbelieved. Obviously there much evidence which would be relevant as to sentence and not only irrelevant on issue of guilt innocence, but actually prejudicial the defendant on that issue. we And know from our own Mount experience since that defendants have not availed themselves of its humane because purpose fear an they ad- verse reaction on the basic problem We guilt. know

also when an accused who denies guilt offers background behavior, evidence of previous antisocial a unitary trial a he runs risk of serious on the prejudice guilt aspect the case. State v. 41 N. Reynolds, 163, 177-178 See J. (1963), denied, 1000, certiorari 377 U. 12 1930, S. 84 S. Ct. L. Ed. cases, 2d 1050 In such I believe (1964). the defendant left impermissibly unprotected the matter of punishment. Banmiller, ex United rel Scoleri v. 310 F. Compare States denied, 828, 2d 720 Cir. 1962), certiorari 374 S.U. (3d 1866, 10 L. Ed. 2d 1051 83 S. Ct. United States (1963); Price, F. 2d ex rel. v. 258 918 certiorari Thompson (3d Cir.), Ed. denied, 295, 77 3 L. 2d 241 922, (1958). 358 U. S. S. Ct. Texas, 554, 87 also 385 U. S. S. Ct. Spencer See S., 385 U. 648, 17 L. Ed. particularly 2d (1967), Ct., 655-656, Mr. Justice 567-568, 87 at pp. pp. at S. Ct., 656, Mr. at Chief 569, at S. Stewart concurring 570, dissenting and Mr. Portas Justice Warren Justice Ct., 662; United States 580-581, S. certiorari Cir. 904, 914, 1965), F. 2d Curry, (2d 2d 100 147, 17 L. Ed. Ct. denied, 873, 87 385 U. S. crime, defendant, his regardless If no convicted (1966). of our under the mandate murder, can be sentenced except and re investigation until after presentence rule practice protec and process equal due to the sentencing judge, port implicated. dimension of constitutional problems tion As of Mount. Tenta- deficiency remedy for the There is says: A. I. Penal Code (1959) L. Draft Ho. tive a method between choice no reason insist “There is guilt and or innocence of the trial of the fairness which threatens rationality determination from which detracts one solution, Royal proposed Com- The obvious the sentence. proceeding, Capital Punishment, is to bifurcate mission strictly by abiding until unless rules of evidence there opening guilt conviction, determined but once has been record to sentence.” is relevant Comment further information §201.6, 74-75. State, In our bifurcation would mean a simply two-stage in first degree murder eases. The first stage would settle the issue of If or innocence. guilt verdict re- guilty sulted, the second stage would proceed before the same and the matter of would be decided. In this evidence deemed phase, relevant to sentence the trial court may be introduced. This would include back- defendant’s ground, family, educational and employment history, mental physical condition, as well as mitigating aggravating circumstances, within reasonable limits.

Pour states have adopted California, Cal. practice, Penal Code 190, 190.1 Connecticut, Gen. Stat. (1957); §§ Conn., 1963 York, 50-10 Supp. New N. Y. Penal (1963); § Law, 125.30, 125.35 Purdon’s (1963); Pennsylvania, §§ Ann., Pa. Stat. Tit. The Pro § Official A. L. posed Draft I. Model Penal in Code cludes it in (May 4, 1962). The follows proposal §210.6 the highly favorable on the trial comments two-stage appear in Code, Tentative Draft No. 9 of ing 74- supra, pp. other that draft notes a Among things, report the Institute that the results of the California procedure "are eminently satisfactory.” p. 75. See 1 Evi Wigmore, dence, 660-661; 194b ed. (3d 1940), pp. see also Knowl § ton, Cases, Problems Jury Discretion in Capital Pa.U. of Rev. L. 1135—1136 (1953); Penalty California Trial, 52 L. Rev. 386, Note, 406-407 Va. (1964); Calif. Handler, Rev. L. Evidence (1966); Background Cases, in J. & Murder Crim. L. P. C. 323-327 S. Commission on (1960); Report Royal Capital Punish of ment, 1949-1953 M. O. No. (H. 1953) (Cmd. 8932), 194-208, 214. A note, The Two Trial in System Capital Cases, Y. L. N. U. Rev. 77 (1964) points out some in system York, in New con shortcomings adopted but that "the overall scheme of cludes these amendments to is a capital punishment laws the di- significant step * * *”2 * no have found I a worthy of goal.

rection outweigh procedure trial the bifurcated criticisms of respecting have arisen Problems advantages. its decided Al trial. penalty admissible at the evidence nature of street, with a one-way be trial should though such of mitigating evidence to offer alone permitted the defendant of control over circumstances, measure some reasonable counterproof ag of the State’s and competency nature could This be imposed. should circumstances gravating prob sensitive court empirically be accomplished no because always problems, There will be lems involved. of the death will make administration mode procedure all reason to strive the more run But easy. had fair and efficient procedure. that can for the best comment, “There is And, to the Model Penal Code repeat a method which to insist choice between no reason and fairness or innocence threatens the guilt detracts from the of the determination rationality one which Draft No. of the sentence.” Tentative States, indicated, Frady United earlier pro- three members of court the bifurcated trial approved cases, believed the court had capital authority cedure it. Some felt had not Congress to institute conferred the and still others reserved power, opinion on the question. as noted in the majority Court, One judge, opinion our problems referred to some involved system such made “clear the utter said of institution of they folly such after careful of all except study of its system ramifications.” Connecticut, California, 2. As the statutes New Tort Pennsylvania proposal reveal, and the Model Penal Code there procedural aspects stage in are variations of example, significant For the trial. one factor if the agreement punishment, reach cannot judge unanimous to the trial a not order need retrial of that issue. In his discretion he impose a life sentence. Cal. Pen. Code § 190.1. ample The variations need be considered here. There is material Court, making expertise, available to this enable with its rule to adopt equitable procedure. the most sys- with the view has my ample experience there been it, study tem in four jurisdictions ample employing of of its and effect to require rejection students operation “utter notion that our Court would be its adoption Moreover, my of folly.” contrary suggestion colleagues, the Court of of in Appeals the Second Circuit United States a Curry, left the such trial of to discretion grant court, of the trial in said that the future whenever de- aby defendant, manded “it would be preferable grant” 2d, 358 F. 916. The made request. p. lone dissenter his view that plain two-stage procedure should and that in adopted, to do so the failing majority disregarded great “the weight commentary authority, ease which for calls the establishment of a mandatory two-stage trial 2d, 358 F. rule.”

In our State no doubt can exist as this au- Court’s thority to adopt bifurcated trial. Under the Constitution we have exclusive authority over matters procedure. Constitution, Art. VI, II, 3. Although establishment of § ¶ the sentence in case capital is matter of substantive law, and therefore legislative function, the in manner which such a case is tried obviously is the control of Court. this

In my judgment reasons for adoption of the split verdict procedure capital cases are compelling. This is especially true when one considers the unsuitability of the alternatives presently in our vogue State. It remains only reiterate what already has been noted above, namely, as an instrument justice, the procedure finds little dissent among authoritative investigators the subject, law, students the criminal and states which have adopted it. In this connection I find particularly appropriate the employed by language my colleagues arguing their sentence change to one of life imprisonment. * * * “There is little basis for perpetuation reluctance embrace the bifurcated trial], particularly in [to such as ours has modernized purposefully and greatly its strengthened judicial system. In process, this Court judicial power, with wide vested constitutionally has been other state any than that granted more perhaps sweeping would be resort, all the end that last court of truly Surely done. to insure that justice a fair position rationally par- be found wanting power may its here.” insertion (Bracketed circumstances presented ticular mine.)

IY not discuss specifically does majority opinion The has constitutional Court Supreme whether question does make It procedure. to establish the authority split surprising Mount some where reference State v. page dictum, seemingly “further would legislation suggested J., 30 N. in New adoption Jersey.” be to enable its required in this main of the majority’s 218. The thrust opinion case, however, is that a new trial on the issue of punishment be The reason advanced is that would not appropriate. reconstituted, nor could new be jury could not original familiar on without jury punishment being the matter pass :113—4, 2A evidence,” “all the N. J. and production with crime no of all the evidence commission bearing feasible because of witness. longer missing no His presents problem. testimony witness missing I a new jury. can read to with agree language be murder statute, degree that for first the accused guilt death unless the “shall its shall suffer verdict recommend life imprisonment, thereof” should be as part mean which returns the verdict interpreted murder should continue the next and of first to decide proceeding punishment. That separate phase with the statute and is extremely method is consistent prac- which is familiar with all the tical because evidence commission of the crime turn as to the its attention factors bear the additional on punishment. to all If of bifurcation were followed and on that method appeal as to appeared error the issue only prejudicial punish- could order this Court doubt that ment, can there retrial, alone? On such limited to a new trial :113-4, the prosecu- N. J. 2A of the 8. language because and the circumstances the crime tion would have to reprove to decide upon punish- the new jury enable attending be open reappraisal. would not ment, but the issue guilt trial can establish the two-stage that this Court Assuming established, on if retrial cases, punish- in and that capital in and had for trial error occurring would be ment alone firmly all of which I stage, to the punishment relating rule, do new trial Court has the power believe this in this alone ordered the issue of punishment on Before the procedure. state of our case the existing trial, trials in cases unitary capital of the bifurcated advent have trials resulted one which in all jurisdictions or without a murder with of first degree verdict—guilty California, Yet in life imprisonment. recommendation branch of the does government where the judicial example, over authority procedure possessed by extensive not have the statute of the Court, authorizing before long adoption this cases Court Supreme capital the bifurcated The court held that on punishment. a new trial ordered did not affect the issue of guilt error the prejudicial when choice of as between innocence, penalty only but or a remand could be ordered on and life imprisonment, death Green, alone. People of punishment the issue 2d, although fixing 322-324. It said that P. at pp. of the “two con- necessary one normally of the penalty verdict, involves penalty of the elements” stituent and distinct from clearly separate which is determination 2d,, P. 323. It p. of guilt. determination of our case that in the context noteworthy particularly under the of the provision was ordered new trial limited “reverse, court affirm authorized the code penal from.” or order But the appealed judgment modify on conferred no it to reduce provision said Court because the jury to life imprisonment sentence death "is vested with exclusive discretion to determine punish- 2d, ment.” P.

V dissent, Summarizing reasons above for this expressed are: they

1. This Court is without reduce a authority to sentence to life imprisonment. The will of the people, as expressed Government, branch legislative is being overruled by the order of the majority of col- my leagues.

2. A prosecutor cannot waive the death in a first murder case and make the waiver binding jury. 3. The bifurcated trial practice capital cases should be adopted with case, and a beginning remand ordered for trial of the issue of punishment alone.

4. If the Court is not inclined to adopt that general prac- now, tice then under its plenary authority procedural matters as in R. exemplified R. 1:9-l, modify judgment, its action here should be limited to an order for retrial as to punishment alone.

5. In the event the majority hold the opinion new trial as to punishment alone is not within the ambit of the Court’s power, then the only recourse is to order new trial on all issues in the case. Haneman,

Proctor JJ., concur in result. Weijsttraub For Justice and Justices modification—Chief Jacobs, Proctor, Hall, Schettino and Haneman—6. For reversal—Justice Eeancis—1. notes majority opinion homicide statute directs the entry of death on a judgment first degree murder verdict unless life jury recommends imprison- ment, “in which case this and no greater punishment shall be It out that the imposed.” points statute is not “addressed manner appellate proceedings after conviction.” Then it B. points B. 1:9-l which says that the mandate from the court appellate (after opinion the court is shall “merely provide that filed) or judgment, order * * * affirmed, determination from is appealed reversed modified, or and that the record shall be remitted court below to be there proceeded with accordance with court, the rules and practice relating consistent with court.” How opinion appellate can language fount regarded beyond me. Finding sup- port there death sentence changing to one of im- life a seven prisonment truly league tour bootstrap de force. This has authority Court under the Constitution to regulate matters of procedure, but we cannot confer power upon ourselves to make or to emasculate substantive law. In other courts hold jurisdictions appellate that statutes, either the same as or the same precisely as N. import J. 8. :113-4, vest the jury 2Á with discretion to recom- absolute life mend to withhold recommendation

Case Details

Case Name: State v. Laws

Court Name: Supreme Court of New Jersey

Date Published: May 6, 1968

Citation: 242 A.2d 333

Court Abbreviation: N.J.