On the night of August 27, 1982, eighteen-year-old Anna Olesiewicz sat on a bench on the Asbury Park boardwalk listening to music from a nearby club while her friend went to find a bathroom. When the friend came back, Anna was gone. Her skeleton was found on January 14, 1983, in a vacant lot behind a fast food restaurant on Route 35 in Ocean Township, with four bullet holes in the skull. A week later a twenty-two-year-old waitress named Theresa Smith, who had been living with Richard Biegenwald and his wife, went to the police. She said Biegenwald had shown her a young woman's body under a mattress in his garage, told her he had met the girl on the boardwalk and shot her in the head, and had wanted Smith to kill someone herself to prove she was tough. The ring missing from Anna's finger turned up in his wife's jewelry box.
Biegenwald was forty-two. He had killed before: in 1958, at eighteen, he shot a Bayonne store owner, Stephen Sladowski, during a robbery, and he was paroled in 1975. After his arrest he was charged in separate indictments with four more murders, those of Maria Ciallella in October 1981, Deborah Osborne in April 1982, William Ward in September 1982 and Betsy Bacon in November 1982. A Monmouth County jury convicted him of Anna's murder on December 7, 1983, and he was sentenced to death. A second jury convicted him of Ward's murder but could not agree on death, and he received life with thirty years before parole.
The nine entries in this file, from 1984 to 1991, are the fight over whether the State could execute him. In 1984 the Supreme Court of New Jersey held that a murder conviction still on appeal could not be used as an aggravating factor. In 1987 it upheld his conviction for Anna's murder but threw out the death sentence because of the jury instructions. In 1988 it held that the Ward conviction could be used at the new sentencing, and in 1989 the Third Circuit revived his suit over being kept on death row after his sentence was vacated. A second jury sentenced him to death, and on August 8, 1991, the court vacated that sentence too, by four votes to three, because prospective jurors had not been properly questioned about their views on capital punishment. Biegenwald was never executed. He died on March 10, 2008, at sixty-seven, at St. Francis Medical Center in Trenton.
The two long opinions, from 1987 and 1991, are each about thirty-seven thousand words and between them hold nearly everything the courts found. The 1987 opinion carries the trial facts summarized above, Theresa Smith's account among them, and page after page on the publicity: the prosecutor who invited some two hundred reporters to watch the digging for bodies at Biegenwald's mother's house on Staten Island, and the newspapers that called him the thrill killer. The short entries, one of twelve words and one of sixteen, are orders granting or refusing review, and in date order they show how the case moved. Three of the seven justices would have let the 1991 death sentence stand.
Everything here about the murders of Maria Ciallella, Deborah Osborne, William Ward and Betsy Bacon comes from the courts' procedural history, and the opinions say little more than their names and dates. Only the Ward case reached a verdict in these pages. Theresa Smith's testimony is the account of a witness who had lived in the house and, by her own story, had been urged to kill; the jury believed it, and the court treats it as the trial record, but it is her account. Dherran Fitzgerald, in whose apartment the murder weapon was found, was charged with the murder and testified against Biegenwald after the charge was dropped.
Twenty-three prospective jurors are named in the voir dire transcripts the 1987 and 1991 opinions quote, and here each is reduced to a title and an initial, as in Ms. H. or Mr. Z. So is the friend who was with Anna Olesiewicz on the boardwalk. None of them chose to be part of the case, and the court's point about each juror survives without the name. The table of contents at the head of the 1987 opinion, a list of page numbers from the printed reporter, has been dropped. The text otherwise is the Caselaw Access Project's digitization, without spelling repair, and it keeps its own flaws: Olesiewicz printed as "Olesiewiez" and her first name as "Anne," the statute cited as 2C:ll-3 with two letter l's, and the defendant's name misspelled in places as Beigenwald and Biegnewald.
STATE OF NEW JERSEY v. RICHARD BIEGENWALD.
April 6, 1984.
Certification to the Superior Court, Law Division granted.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. RICHARD BIEGENWALD, DEFENDANT-RESPONDENT.
Argued May 1, 1984
Decided June 26, 1984.
Alton D. Kenney, Assistant Prosecutor, argued the cause for appellant (John A. Kaye, Monmouth County Prosecutor, attorney; William J. Zaorski, Assistant Prosecutor, of counsel; Paul F. Jannuzzo and James W. Kennedy, Assistant Prosecutors, on the brief).
Glen J. Vida argued the cause for respondent.
Richard R. Shiarella, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Irwin I. Kimmelman, Attorney General of New Jersey, attorney; Richard R. Shiarella and Catherine A. Foddai, Deputy Attorneys General, of counsel and on the brief).
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
This appeal arises under the provisions of the New Jersey Code of Criminal Justice (Code) authorizing a separate proceeding for purposes of determining the sentence to be imposed upon a defendant found by a jury to be guilty of the crime of murder. N.J.S.A. 2C:11-3c. The case requires that we determine whether, during the penalty phase of a capital proceeding, the State may use as an aggravating factor, pursuant to N.J.S.A. 2C:11-3c(4)(a), a defendant’s prior conviction for murder when the appeal of that conviction has not yet been resolved. We now hold that a defendant having been found guilty of murder, cannot, pending the conclusion of direct appeal proceedings challenging the guilty verdict, be considered as “having been convicted” for sentencing purposes under the capital punishment provisions of the Code.
I
Defendant, Richard Biegenwald, was charged in separate indictments with a series of murders: Anna Olesiewicz, on August 27, 1982; William Ward, on September 21, 1982; Maria Ciallella, on October 31, 1981 and Deborah Osborne on April 7, 1982; and Betsy Bacon on November 20, 1982.
On December 7, 1983, defendant was convicted of the murder of Anna Olesiewicz. By its special verdict the jury directed that the death penalty be imposed. Defendant’s appeal of this disposition is presently pending before the Court.
Defendant next was tried for the murder of William Ward. During jury selection, the State indicated that should defendant be found guilty, it intended to rely on the Olesiewicz conviction and on defendant’s 1959 conviction for the murder of Stephen Sladowski as aggravating factors, pursuant to N.J.S.A. 2C:11-3c(4)(a), during the penalty phase of the trial. The trial court ruled that while the 1959 conviction would be admissible, the Olesiewicz conviction, awaiting appellate review, could not be considered a “prior conviction” for purposes of constituting an aggravating factor.
Defendant was found guilty of the murder of William Ward on February 16, 1984. The State subsequently sought leave to appeal the trial court’s earlier ruling that denied the use of the Olesiewicz conviction as an aggravating factor. The Appellate Division summarily denied the motion. We also denied the motion for leave to appeal. As a result, the only prior conviction constituting an aggravating factor — and the only aggravating factor — considered by the jury in the penalty phase of the Ward murder trial was defendant’s 1959 murder conviction. The jurors were unable to agree whether this aggravating factor outweighed the mitigating factors recognized. Accordingly, defendant was sentenced to life imprisonment with thirty years parole ineligibility, pursuant to N.J.S.A. 2C:11-3c(3)(c).
The State thereafter moved for trial the indictment charging the Bacon homicide. It sought to use the Olesiewicz and Ward convictions as aggravating factors in the prosecution of the Bacon case. The trial court permitted the State to amend its notice of aggravating factors to include the Olesiewicz and Ward murders but then ruled that these convictions could not be used “for any purpose unless affirmed by our Supreme Court.”
On April 6, 1984, this Court directly certified the State’s interlocutory appeal from that portion of the trial court’s decision that disallowed the State use of the Olesiewicz and Ward convictions. — N.J. -(1984). For the same reasons that prompted our consideration of the interlocutory issues in the cases of State v. Bey, 96 N.J. 625 (1984), and State v. Davis, 96 N.J. 611 (1984), we undertake to decide this appeal. We disclaim consideration or intimation of any views concerning the constitutional, statutory, and procedural issues that may be presented in subsequent capital cases.
II
N.J.S.A. 2C:11-3c(4)(a) provides that a jury at the penalty phase of a capital proceeding may consider as an aggravating factor the fact that “the defendant has previously been convicted of murder.” The issue posed is whether the previous conviction must be “final” in the sense that appellate review has been concluded or exhausted.
Whether a prior conviction under N.J.S.A. 2C:11-3c(4)(a) contemplates the absence of a pending appeal from such a conviction is unclear on the face of the statutory provision. The relevant language — “has previously been convicted of murder” — simply does not explicate the necessity for or degree of finality that must attach to a prior conviction in order for it to be available for consideration as an aggravating factor. We must, therefore, resort to intrinsic and extrinsic aids of statutory interpretation to glean the legislative intent. State v. Butler, 89 N.J. 220 (1982); State v. Brown, 22 N.J. 405 (1956).
In resolving doubts and uncertainties as to the meaning to be given a statutory provision, reference to related statutes can be instructive. Consistent construction of other statutes and statutory provisions in pari materia can be indicative of the intended understanding to be accorded the legislation under scrutiny. Further, the historical antecedents of a statute can be enlightening with respect to its proper meaning. State v. Gill, 47 N.J. 441 (1966); State v. Brown, supra, 27 N.J. at 415.
Under the Code as originally enacted (effective September 1, 1979), murder was a first degree crime punishable by a sentence of either (1) thirty years with a minimum parole ineligibility term of fifteen years or (2) as a first degree crime with a maximum term of thirty years. Parole eligibility applied to the latter option. The sentencing court was vested with the discretion to determine which option would be imposed, subject to the general guidelines set forth as aggravating and mitigating factors in N.J.S.A. 2C:44-1. The defendant was also exposed to the possibility of an extended term, pursuant to N.J.S.A. 2C:43-7. As such, he could be sentenced to a specific term ranging between thirty years and life imprisonment. Such sentence made him parole-eligible. If he fell into one of the categories specified in N.J.S.A. 2C:44-3, he could, in addition, receive a fixed minimum term of one-half of a specific term of years imposed or twenty-five years without parole if a life sentence were imposed. See State v. Maguire, 84 N.J. 508 (1980).
As a result of the Code amendments establishing death as a possible penalty for murder (effective August 6, 1982), there are now three sentencing options: (1) death; (2) a sentence of thirty years without parole; (3) a sentence between thirty years and life, with a mandatory minimum thirty year term of parole ineligibility. N.J.S.A. 2C:11-3b. The reference to an extended term sentence was deleted from N.J.S.A. 2C:11-3b. N.J.S.A. 2C:43-7a(1) was likewise deleted. Cf. State v. Serrone, 95 N.J. 23, 26 (1983). This history is instructive, as it indicates that from the outset the most severe sentence for murder was subject to extended term sentence requirements and implicated N.J.S.A. 2C:44-3 and N.J.S.A. 2C:44-4. One factor justifying the imposition of an extended term is that defendant is a “persistent offender” — one who “has been previously convicted * * * of two crimes.” N.J.S.A. 2C:44-3a. Significantly, N.J.S.A. 2C:44-4b defines “prior conviction” for these purposes by providing that a finding of guilt by court or jury “constitutes a prior conviction, although sentence or the execution thereof was suspended, provided that the time to appeal has expired * * *.” N.J.S.A. 2C:44-4b (emphasis added). Thus, a defendant who has been found guilty of a crime in a prior proceeding, but who is pursuing a timely appeal, has not “been convicted previously” of a crime for purposes of sentencing him or her to an extended term of imprisonment. Similarly, the Model Penal Code § 7.05, from which N.J.S.A. 2C:44-4 is derived, requires the absence or resolution of a pending appeal before a prior conviction may be used to impose an extended term.
With the 1982 amendments the Legislature enacted N.J.S.A. 2C:11-3c(4)(a) as one in a series of aggravating factors. The operative language used therein — “previously convicted” — is identical to that utilized in the extended term provision, N.J.S.A. 2C:44-3a. It is not unreasonable to surmise that the Legislature intended the definition of “prior conviction,” as articulated in N.J.S.A. 2C:44-4b, to apply to N.J.S.A. 2C:11-3c(4)(a) as well, so that before a prior conviction of murder may be used as an aggravating factor at the penalty phase of a capital proceeding, the direct appellate process affecting that conviction must be exhausted. See generally State v. Bander, 56 N.J. 196 (1970) (intention of Legislature must be derived from whole act, so as to effectuate general statutory scheme); State v. Madewell, 117 N.J.Super. 392 (App.Div.), aff'd, 63 N.J. 506 (1971) (in construing penal statute, all provisions are to be related and court must consider statute as whole); State v. DeMarco, 174 N.J.Super. 411 (Law Div.1980) (meaning of particular language must be gleaned not only from words used within confines of given section but from those words when read in connection with entire enactment).
Our reading of the statute is guided too by pragmatic concerns for judicial finality. Construing the operative language to require that all avenues of direct appeal be exhausted before a prior conviction may serve as an aggravating factor diminishes the risk of resentencing in the event that such a previous judgment of conviction is subsequently reversed.
We are supported in this position by the weight of authority that while an appeal is pending, a defendant cannot be considered as having been convicted for purposes of recidivist sentencing schemes. Annot., 5 A.L.R.2d 1080, 1092 (1949). The sentencing of the recidivist offender implicates concerns of judicial economy, which are reflected in the policy that limits recidivist sentencing to cases in which a defendant’s prior conviction has become final so as to avoid the costs, time delays, and drain on judicial resources that would attend resentencing in the event that the relied upon but still pending conviction was subsequently reversed. See generally State v. Harris, 97 N.J.Super. 510, 513 (App.Div.1967) (erroneously relying on prior conviction to enhance sentence imposed pursuant to second judgment is not harmless error, even if same sentence could have been imposed, as judge might have reached different conclusion had he not considered first judgment); Janiec v. McCorkle, 52 N.J.Super. 1 (App.Div.1958), cert. denied, 362 U.S. 944, 80 S.Ct. 811, 4 L.Ed.2d 772 (1959) (fundamental fairness requires procedure to allow those subject to sentence as persistent offenders to challenge early judgments even if they have served full sentence on those judgments).
A parallel approach was noted by the Third Circuit Court of Appeals in United States v. Allen, 566 F.2d 1193, 1195 (1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978). The court concluded that these same considerations most likely prompted Congress, in 1970, to amend the punishment-enhancement provision of the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C.A. § 841(b)(1)(B), by substituting the words “has become final” for the words “previously been convicted.” Pub.L. No. 91-513, Title II, § 401, 84 Stat. 1260 (1970). By limiting recidivist sentencing to cases in which the conviction has become final, i.e., the time for appeal has expired or a pending appeal has been concluded, it seems likely that Congress intended to avoid the risks and evils of repeat sentencing.
Further, our interpretation is bolstered by considerations of fundamental fairness. We have long recognized that an individual’s prior conviction may be used to affect his or her testimonial credibility as a witness. N.J.S.A. 2A:81-12; State v. Sands, 76 N.J. 127 (1978); State v. Hawthorne, 49 N.J. 130 (1967). In State v. Blue, 129 N.J.Super. 8 (App.Div.1974), certif. den., 66 N.J. 328 (1978), the court held that a defendant’s prior conviction was not admissible for the purpose of impeaching credibility when that conviction was then on appeal. The Appellate Division observed that it was “fundamentally unfair to permit the use of a prior conviction to impeach credibility while the very credibility of this conviction itself is under attack through the appellate process.” Id. at 12. The cogency of this reasoning applies, even more forcibly, where life is at stake. Indeed, it would be anomalous to permit the use of convictions that are awaiting appellate review when sentencing defendants to death in light of the fact that such use has been deemed impermissible in a setting in which only a custodial term can be the ultimate sanction. Imposition of the penalty of death is “profoundly different from all other penalties,” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973, 990 (1978), and, as such, requires more, not fewer, procedural safeguards than would attend imposition of a custodial sentence. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
We acknowledge that our resolution of the question presented is not free from doubt. We note that Model Penal Code § 7.05, the source of N.J.S.A. 2C:44-4, now appears to be the minority rule. See, e.g., State ex rel. Corbin v. Court of Appeals, Division I, 103 Ariz. 315, 441 P.2d 544 (1968) (interpreting the phrase “who has previously been convicted” under Ariz.Rev.Stat.Ann. § 13-604 (amended 1980) not to require absence of pending appeal); Swift v. People, 174 Colo. 259, 488 P.2d 80 (1971) (interpreting the phrase “has twice previously been convicted” under Colo.Rev.Stat. § 16-13-101 (1973) (amended 1979) not to require absence of pending appeal); State v. Martin, 316 So.2d 740, 742-43 (La.1975) (interpreting the phrase “having been convicted” under La.Code Crim.Pro. Ann. art. 529.1 (West Supp.1982) not to require absence of pending appeal). However, in many such instances a statutory provision specifically dispenses with the requirement that a conviction be final. See, e.g., Ark. Crim. Code § 41-1003 (1977) (permitting proof that defendant “has previously been convicted” by any evidence demonstrating that defendant “was found guilty”).
We recognize too that our holding may result in the serial murderer’s escaping the sentencing onus of his prior convictions. However, we hasten to add that the exclusion of previous convictions that are awaiting appellate review surely will not automatically result in the imposition of a life, as opposed to death, sentence in any given case. We note also that in the event a murderer escapes the death penalty, the alternative— imposition of a life sentence with the mandatory minimum term of parole ineligibility — remains a severe sanction.
In the final analysis, we are compelled in this context to resolve any doubt or ambiguity in favor of the accused. State v. Maguire, supra, 84 N.J. at 514; State v. N.J., Juvenile, 125 N.J.Super. 566 (App.Div.1973). We recognize that the relevant statutory language plausibly could be read to apply to convictions despite the fact that a direct appeal is pending. While on balance we reject this interpretation, we acknowledge that this is a matter committed to the wisdom of the Legislature and that the Legislature may clarify or modify the present scheme to the extent that our interpretation does not commend itself to some as yet unarticulated statutory purpose or policy.
The judgment below is affirmed.
For affirmance—Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK, O’HERN and GARIBALDI—7.
For reversal—None.
Improper introduction of a judgment as an aggravating factor would result in a need for resentencing. In fact, states whose death penalty statutory schemes are comparable to ours (insofar as they require the jury to balance aggravating and mitigating factors when deciding whether to impose the death penalty), see, e.g., Ark.Stat.Ann. § 41-1302(1) (1977); N.C.Gen.Stat. § 15A-2000(b) (Supp.1979); Tenn.Code Ann. § 39-2-203(g) (Supp.1979); Wyo.Stat. § 6-4-102(d)(1) (1977), have generally held that a sentence of death that is based on both valid and invalid aggravating factors must be set aside. See, e.g., Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), cert. denied, 459 U.S. 1042, 103 S.Ct. 460, 74 L.Ed.2d 611 (1982); State v. Moore, 614 S.W.2d 348, 351-52 (Tenn.), cert. denied, 454 U.S. 970, 102 S.Ct. 517, 70 L.Ed.2d 388 (1981); Hopkinson v. State, 632 P.2d 79, 90 n. 1, 171-72 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982).
STATE OF NEW JERSEY v. RICHARD BIEGENWALD.
July 12, 1984.
This matter having been duly presented to the Court, and the Court having determined that the application is in the nature of a request for clarification of the opinion of the Court that was filed on June 26, 1984, and the Court having further determined that clarification of said opinion is desirable, and good cause otherwise appearing;
It is ORDERED that the opinion of the Court shall be clarified to show that prior convictions for murder cannot be used in subsequent prosecutions pending the conclusion of direct appeal proceedings that challenge the guilty verdict before this Court or the Supreme Court of the United States. Applications for post-conviction relief or collateral proceedings shall not prevent the use of such convictions as an aggravating factor. (See 96 N.J. 630)
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD BIEGENWALD, DEFENDANT-APPELLANT.
Argued February 5, 1985
Decided March 5, 1987.
Glen J. Vida, Union, argued the cause for appellant.
James Fagen, Assistant Prosecutor, argued the cause for respondent {John A. Kaye, Monmouth County Prosecutor, attorney).
Boris Moczula, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey {Irwin I. Kimmelman, Former Attorney General, attorney).
[OPINION BY WILENTZ, C.J. type=majority]
The opinion of the Court was delivered by
WILENTZ, C.J.
Defendant, Richard Biegenwald, was convicted of murder and sentenced to death by a Monmouth County jury and judge in December 1983. He appeals directly to this Court as of right. See R. 2:2-l(a)(3). We affirm defendant’s murder conviction. Because the trial court failed to instruct the jury properly in the sentencing phase, however, we must reverse the sentence of death and remand for a new sentencing proceeding.
I.
Facts
On the night of August 27, 1982, eighteen-year-old Anna Olesiewicz and a friend, D.H., drove from Camden to Neptune City planning to stay at D.H.’s uncle’s house. They went over to the Asbury Park boardwalk. Olesiewicz and D.H. sat on a boardwalk bench to listen to the music coming out of a nearby club. D.H. left for a short while to use a bathroom, and when she returned, she found that Olesiewicz was no longer on the boardwalk bench where she had left her. After she failed to find Olesiewicz, D.H. returned to her uncle’s home and filed a missing persons report the next morning.
On January 14, 1983, the skeleton of a female body was discovered in a vacant lot behind a fast food restaurant on Route 35 in Ocean Township. By matching dental charts, authorities identified the body as that of Anna Olesiewicz. When the body was discovered, it was clothed in the items Olesiewicz was last seen wearing—blue jeans and a dark shirt—except that a black and gold ring was missing from her finger. In the skull were four bullet holes, and three of the bullets were lodged within the skull. Testimony at trial indicated that the victim died as a result of the bullet wounds. It was estimated that death had occurred several months prior to the autopsy. Inadequate tissue remained to enable blood alcohol or chemical tests to be performed on the body.
One week after the body was discovered, twenty-two-year-old Theresa Smith, who had shared an apartment with the defendant, forty-two-year-old Richard Biegenwald, and his wife, Diane, came to the police and recounted a story implicating Biegenwald in the shooting. This story was essentially the same as that to which she testified later at Biegenwald’s trial.
Smith had previously worked as a waitress with Diane Biegenwald and lived with the Biegenwalds from June through October 1982 in a multi-apartment house in Asbury Park. Shortly after she moved in with the Biegenwalds, Smith and the defendant became friends.
Smith told how during the course of their relationship she became the defendant’s protege and he encouraged her to find and kill a “victim” to prove to him that she was “tough.” They discussed that Smith should murder “Betsy,” Smith’s co-worker. On Friday, August 27, the date of Anna Olesiewicz’s disappearance, Smith drove around shore towns with Betsy, having contemplated and discussed with Biegenwald a plan to murder Betsy. Smith, however, called the defendant and told him that she could not go through with the murder plan, and she returned alone to the Asbury Park apartment to sleep. Smith testified that Biegenwald awakened her later that same night, although she did not recall why. Unable to return to sleep, she went to the kitchen, and, looking out the window toward the driveway, saw a “shadow of a body” sitting in the car that Biegenwald had given to her. She returned to sleep.
At the end of the next day Biegenwald took Smith into the garage where he lifted a mattress to show Smith a female body in unzipped jeans, a dark shirt and no shoes. Smith did not see the face because a large green plastic bag covered the head and was secured around the neck. Biegenwald asked Smith to touch the body—to “pick her leg up” and tell him how it felt. The defendant told Smith he had shot the victim in the head after meeting her on the boardwalk, telling her he had marijuana, and taking her back to the house. Biegenwald told Smith that Olesiewicz had been intended to be Smith’s first victim but when he had tried to waken Smith while the victim was still alive, Smith would not get up. Biegenwald removed from the victim’s finger a black and gold ring which one month later he gave to Smith. The next day Biegenwald and Dherran Fitzgerald, a friend of the defendant, who lived in the neighboring apartment, disposed of the body behind the fast food restaurant.
The police arrested the residents of the Asbury Park house— Richard and Diane Biegenwald, Dherran Fitzgerald, his girlfriend, and her daughter—based on Smith’s statement. In the basement of Biegenwald’s apartment the police discovered three weapons, ammunition, and controlled substances later determined to have been stolen from the hospital where Diane Biegenwald worked. The murder weapon was found in Fitzgerald’s apartment as was an extensive cache of weapons. The black and gold ring missing from the victim’s finger was discovered in Diane Biegenwald’s jewelry box. Smith testified that after wearing the ring for several weeks she gave it to Diane Biegenwald. The only ammunition found that fit the .22 Short, the murder weapon, was discovered in a bag near the basement room where Biegenwald slept. The ammunition sales registry at a sporting goods store in Ocean Township showed that both Diane Biegenwald and Dherran Fitzgerald had purchased .22 Short ammunition.
The defendant was indicted by a Monmouth County Grand Jury on May 4, 1983, on ten counts: (1) the murder of Anna Olesiewiez (N.J.S.A. 2C:ll-3a(l), (2)); (2) felony murder (Sec. a(3)); (3) armed robbery (N.J.S.A. 2C:15-la); (4) possession of a weapon for an unlawful purpose (NJ.S.A. 2C:39-4a); (5) unlawful possession of a weapon (N.J.S.A. 2C:39-5b); (6) possession of a weapon by a convicted felon (N.J.S.A. 20:39-7); (7) possession of marijuana (N.J.S.A. 24:21-20a(4)); (8) possession of a controlled dangerous substance with intent to distribute (N.J. S.A. 24:21-19a(l)); (9) possession of a controlled dangerous substance (N.J.S.A. 24:21-20a(l)); and (10) unlawful possession of a number of weapons (N.J.S.A. 2C:39-5b, 5d). The sixth count was severed before trial. Biegenwald pleaded not guilty to all counts.
Fitzgerald was initially also charged with the murder of Anna Olesiewiez but this charge was dismissed in exchange for Fitzgerald’s testimony against Biegenwald.
The case received extensive pretrial publicity in the local press. The defendant was linked to possibly four or five previous local murders, most of teenaged girls. Local and regional papers covered the Biegenwald arrest, investigation, and trial extensively, nicknaming him the “thrill killer” because, it was reported, he killed only for pleasure.
Defendant’s attorneys moved for a change of venue, claiming the extensive publicity would not allow Biegenwald a fair trial in the local area. On July 29 this motion was denied, as was a motion to dismiss the indictment based on defendant’s claim that the prosecutor’s actions constituted prosecutorial misconduct. The trial court ordered both sides to cease commenting to the press regarding the indicted matters or others pending indictment.
The trial itself, which began on November 14, was extensively covered in local news reports. The day before the trial, news reports discussed Biegenwald’s prior conviction for murder, repeated the prosecutor’s statements that he killed Olesiewicz because “he wanted to see someone die that night,” and linked Biegenwald to five area murders.
The venue motion was renewed at the start of the trial. The trial court initially stated that it would refuse to grant the motion unless 250 jurors indicated their inability to be impartial. Counsel did not renew the venue motion after the close of voir dire.
During voir dire the trial court at first sought to determine whether potential jurors’ general views about capital punishment made them unqualified to sit in a capital case. The court initially asked general questions concerning the potential jurors’ exposure to pretrial publicity and refused a defense request to inquire into specific details recalled from the public accounts. Defense counsel objected that the narrow scope of voir dire permitted the seating of jurors who would consider defendant’s other crimes. In response, the trial court began to question those jurors whose answers indicated knowledge of defendant’s background as to the extent of such knowledge. Of the eighty-eight venirepersons questioned about pretrial publicity, the court dismissed thirty-five of the forty-seven who indicated that they recalled specific details of other murders connected to defendant. The court excused only those prospective jurors who specifically indicated that they could not be impartial. Of the twelve remaining jurors who had been exposed to substantial publicity, four were seated over defense challenges for cause. Defense counsel used peremptory challenges to remove these jurors. Every challenge for cause by the defendant was denied, and the court refused to hear challenges for cause at side bar. Defendant’s counsel exhausted all twenty peremptory challenges before the final jury was seated.
Several jurors reported to the trial court that while waiting to be questioned, they had discussed defendant’s case as well as the news reports of his previous conviction and alleged prior murders. The court then instructed the first two jury panels not to discuss the case. When the final jury was selected, at least one member had been identified as a juror who had discussed the case while awaiting voir dire.
At trial the State’s main witnesses were Theresa Smith and Dherran Fitzgerald. Smith testified to what she had told the police in January. Fitzgerald testified about his friendship with Biegenwald, statements made by defendant to him about the murder, and the disposal of the body behind the fast food restaurant.
Biegenwald’s defense was that Fitzgerald, an admitted contract killer, had murdered Anna Olesiewicz. Defendant presented the testimony of three inmates at Trenton State Prison who told essentially the same story. They claimed that Fitzgerald, in prison prior to negotiating his plea arrangement, on seeing news headlines about the murder had bragged that he had killed Olesiewicz. Each of Biegenwald’s witnesses had initiated contact with defense counsel through the mail, having learned of the case in prison. All three said that although defendant did not initiate contact with the witness, the defendant had given them the name and address of his lawyer.
Defendant was found guilty of five counts: murder, possession of a weapon for an unlawful purpose, two counts of possession of a weapon without a permit, and possession of a controlled substance.
Defendant signed a written waiver relinquishing his right to a jury in the penalty phase. However, the prosecutor refused to consent to the waiver, and as his consent is required by Section c(l), sentencing was conducted by the same jury that had determined guilt.
At the sentencing trial, the prosecutor introduced as an aggravating factor evidence of defendant’s 1959 murder conviction, for which he had served seventeen or eighteen years in prison. Sec. c(4)(a). The prosecution also asked that the jury consider as an aggravating factor that the murder of Anna Olesiewicz was “outrageously or wantonly vile, horrible or inhuman in that it involved ... an aggravated battery to the victim.” Sec. c(4)(c).
Defendant sought to establish three mitigating factors: c(5)(a), that defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution; c(5)(d), that his ability to appreciate the wrongfulness of his conduct or to conform it to the requirements of the law was significantly impaired as a result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution; and c(5)(h), any other unspecified factor that was relevant to his character or record or to the circumstances of the offense. Defendant introduced testimony from a forensic psychiatrist that Biegenwald suffered from a severe personality disorder known as anti-social personality with paranoid traits. The psychiatrist explained that Biegenwald was abused as a child and was institutionalized at the age of eight, diagnosed as schizophrenic and given twenty electro-convulsive shock treatments. Biegenwald subsequently entered a state hospital. On returning home he was beaten again by his father, stole from his mother, and routinely escaped from his house for days at a time. At age eighteen he was convicted of a murder committed while robbing a store, for which he served the seventeen or eighteen year prison term. A psychiatrist who had initially been called by the defense in preparation of an insanity defense but had advised counsel that the defendant was not legally insane testified that Biegenwald lacked the emotional capacity to appreciate the wrongfulness of his act or to conform his behavior to the law.
The court instructed the jury that aggravating factors must be found beyond a reasonable doubt but that the jury had to be “satisfied” only that a mitigating factor existed. It instructed that all of the mitigating factors together had to be weighed against each of the aggravating factors alone. It did not instruct that the jury had to be convinced beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors, but charged that if each aggravating factor was not outweighed by the combined mitigating factors, death would be imposed. After a request for clarification, the court explained that the conditions listed in Section c(4)(c) were to be read in the disjunctive. It explained that to find that aggravating factor c(4)(c) existed, the jury had to find that the attack “involved either torture or conduct indicating a depraved mind or that the attack was so savagely outrageously cruel or violent that the adjectives wantonly, vile or horrible or inhuman are justified.” It did not explain what constitutes an aggravated battery.
The jury found both aggravating factors offered by the State to exist beyond a reasonable doubt. The jury found two mitigating factors—that the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect, and that another unspecified factor existed that was relevant to the defendant’s character or record or to the circumstances of the offense. The jury did not find that the defendant was under the influence of extreme mental or emotional disturbance. Finally, the jury found that neither aggravating factor was outweighed by the combined mitigating factors and, accordingly, the court sentenced defendant to death.
II.
Constitutionality of Death Penalty Per Se and of N.J.S.A. 2C:ll-3
Defendant argues that any death penalty law, and hence the Act, inflicts cruel and unusual punishment forbidden by the eighth amendment of the federal Constitution and Article I, paragraph 12 of the New Jersey Constitution. For the reasons given in State v. Ramseur, 106 N.J. 123 (1987), also decided today, we reject this contention.
III.
Pretrial Issues
A. Voir Dire
1. Challenges for Cause at Side Bar
Defendant challenges as reversible error the trial court’s ruling that required challenges for cause to be asserted and explained in open court, in the presence of the challenged juror, rather than at side bar. Defendant contends that the practical effect of the trial court’s ruling was to compel defense counsel to use some of his peremptory challenges to remove jurors who otherwise could have harbored prejudice against defendant.
Defendant cites three instances in which this ruling was applied by the trial court. However, in the case of the first such ruling, the request to assert the challenge at side bar occurred after the challenge was denied. The second instance involved a challenge for cause asserted in open court immediately after a side bar conference. Here, grounds for the challenge were described as being “based upon the statement we just had at side bar,” so that the challenged juror did not hear the grounds for the challenge. Only the third example clearly involved a challenge for cause that the trial court required counsel to assert in the juror’s presence, rather than at side bar.
In State v. Smith, 55 N.J. 476, 483, cert. den., 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970), we held that the decision to hear challenges for cause at side bar or in open court is one .within the discretion of the trial court. There, counsel initially challenged a juror for cause at the bench. Counsel then asserted his next challenge in open court, claiming later that this was at the court’s direction. After counsel made subsequent challenges for cause without requesting permission to approach the bench, he informed the court that he felt compelled to challenge peremptorily because of the court’s refusal to hear challenges for cause at side bar. The trial court denied having made such a ruling, and permitted later challenges for cause to be made at side bar. We found no improper exercise of the court’s discretion. Id.
Similarly, we are unable to conclude here that the isolated instance during voir dire in which counsel was requested to challenge for cause in open court was so mistaken an exercise of discretion as to warrant reversal. We are not persuaded that every juror unsuccessfully challenged for cause is inevitably biased against the party asserting the challenge. Nor are we convinced that the peremptory challenge subsequently expended against the challenged juror would not have been asserted had the challenge for cause been advanced at side bar rather than in open court.
We are of the view that challenges for cause based on bias or partiality should be asserted at side bar particularly in capital cases. The minimal inconvenience and delay entailed by this procedure are clearly offset by the undesirability of a prospective juror knowing that his presence on the jury is objectionable to one party. In this case, however, the ruling to which defendant objects had a minimal impact on the jury selection process and appears to be confined to one juror, later challenged peremptorily by defendant. Under the circumstances, we do not find that the trial court’s ruling had the capacity to deprive defendant of a fair trial.
2. Counsel Voir Dire Participation
Defendant contends that the trial court’s refusal to permit defense counsel to interrogate the jury during voir dire was prejudicial error. He argues that neither our decision in State v. Manley, 54 N.J. 259 (1969), nor Rule l:8-3(a) should be construed to prohibit attorney-conducted voir dire in capital cases.
In State v. Manley, supra, 54 N.J. 259, defendant was indicted for first-degree murder. On appeal from his conviction for second-degree murder, defense counsel claimed trial error because of the trial court’s refusal to permit him to propound questions during jury voir dire concerning defendant’s prior criminal conviction. In sustaining the conviction, this Court announced its adoption of the predecessor of Rule l:8-3(a), which was intended to return control of jury voir dire to the trial court and vest in the trial court discretion to permit or restrict supplemental questioning by counsel. Id. at 281-83. Justice Francis, writing for a unanimous Court, expressed in no uncertain terms the reason for the new rule:
In many instances it has taken as long or longer to empanel a jury as to try the case. The impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party’s point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish.
[Id. at 281 (emphasis in original).]
In Manley, supra, 54 N.J. at 283, we modified our holding in State v. Sullivan, 43 N.J. 209, 239-40 (1964), cert. den., 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966), a death penalty case that had permitted more voir dire examination by counsel. The compelling policy reasons for court-controlled voir dire, the Manley opinion’s “call[] for a much more guarded discretion than previously announced in State v. Sullivan, supra, 43 N.J. [at] 239-40,” 54 N.J. at 283, a capital case, and the text of Rule l:8-3(a) persuade us that the holding in Manley was intended to apply, and should apply, in death penalty cases. We note also that the Appellate Division has expressly considered and rejected the contention that State v. Manley, supra, 54 N.J. 259, is inapplicable to capital cases. State v. Howard, 192 N.J.Super. 571 (1983).
Our present Court rule is intended to see that voir dire is conducted to the extent reasonably possible by the court. The trial court is given discretion to permit counsel to supplement the court’s interrogation of jurors by submitting questions to the court and, where the court approves, by additional personal questioning by counsel. See R.1:8-3(a); Manley, supra, 54 N.J. at 282-83. In this case, following the customary practice, the trial court required counsel to submit to it proposed questions for the juror then being interrogated. The court then determined whether or not the question submitted would be propounded to the juror. No instances have been cited to demonstrate that the trial court abused its discretion in refusing to allow questions to jurors.
We reiterate our comments in State v. Williams, 93 N.J. 39 (1983), as to the desirability of searching voir dire interrogation where juror bias is an issue. There we noted that
[a]n important, indeed critical, means for dealing with potential and latent bias is the voir dire. The court should consider the efficacy of more exhaustive and searching voir dire examinations. The court in conducting the voir dire should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias.
[Id. at 68 (footnotes omitted).]
Although in some instances the trial court’s interrogation was more general and less searching than that requested by counsel, our independent review of the record reveals that the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury. We hold that the trial court’s refusal to permit the voir dire interrogation to be conducted by counsel was within the limits of our decision in State v. Manley, supra, 54 N.J. 259, and of Rule l:8-3(a), because both the Manley decision and the Rule are applicable to capital cases. However, we note that in capital cases trial courts should be especially sensitive to permitting attorneys to conduct some voir dire.
3. Excuse of Jurors for Hardship
We also note and reject defendant’s contention that the trial court overestimated the length of the trial, causing “many well-educated and working-class people” to ask to be excused from jury service. The trial court on November 14 announced to the jury pool was that the trial “will probably go ... up until Christmas.” Accordingly, the trial court excused those jurors whose jobs might be jeopardized or whose personal circumstances were such that jury service for an extended period would be a financial hardship. In fact, jury voir dire occupied the week of November 14, the trial commenced on November 28, after a recess during Thanksgiving week, and lasted nine days, ending on December 8.
There is no suggestion that the trial court deliberately or unreasonably excluded from jury service a cognizable class of jurors in violation of defendant’s sixth amendment rights, see Thiel v. Southern Pac. Co., 328 U.S. 217, 221-25, 66 S.Ct. 984, 986-88, 90 L.Ed. 1181, 1185-87 (1946), or that the jury selection procedure resulted in a substantial underrepresentation of a constitutionally cognizable group, see Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498, 510 (1977). Although the trial court’s estimate of the length of trial proved to be incorrect, it was hardly unreasonable or inappropriate in view of the State’s extended witness list and the anticipated length of the jury voir dire. We find no error either in the trial court’s attempt to estimate the length of trial or in its determination to exclude jurors unable to serve in a protracted trial.
B. Publicity and Venue
It is undisputed that there was extensive pretrial publicity concerning the defendant in newspapers distributed in Monmouth County, particularly during April and May of 1983. A number of articles linked the defendant to other homicides and disclosed his prior murder conviction. Front page articles in the Asbury Park Press included photographs of the police digging to locate bodies, maps to gravesites, interviews with families of victims, and photographs of the defendant in handcuffs. Although articles concerning defendant appeared with greatest frequency in the Asbury Park Press, a newspaper widely read in Monmouth County, there was also significant publicity in the Star Ledger, The New York Times, the Daily News, the New York Post, the Record (Bergen County), the Atlantic City Press, the Trentonian, the Daily Register (Monmouth County), the Home News (Middlesex County), and the Philadelphia Inquirer, as well as substantial radio and television publicity.
The prosecutor was quoted and seen regularly in the news reports of the case. He established a hotline to receive information about the defendant and the murders and held press conferences. He was accompanied by 200 reporters during the search for bodies of defendant’s alleged victims on Staten Island, New York. When speaking with the press the prosecutor repeatedly assumed defendant’s guilt and also stated that defendant killed only for pleasure. One article attributed to the prosecutor the observation that defendant had murdered Olesiewicz and the others because “he wanted to see someone die” on those nights.
After May 1983, publicity about the case generally subsided. In July defendant moved for a change of venue on the ground that the extensive pretrial publicity made it unlikely he could receive a fair trial in Monmouth County. The assignment judge denied the change of venue motion without prejudice to its renewal at the time of trial. At the same time, he adjourned the September trial date for two months and barred any further public comment by counsel concerning the case or other related matters pending indictment.
The day before the trial began, the Asbury Park Press carried a front page article on the upcoming trial, featuring a picture of the defendant, discussing his prior conviction in 1959 for murder, repeating the prosecutor’s statements about lack of motive, and linking the defendant to five area murders. Thereafter, press coverage of the jury voir dire and the trial continued daily. A few jurors were observed reading newspaper accounts of the trial in the jury assembly room before they were called for voir dire. We note that the trial court instructed all jurors not to read anything about the case.
It is axiomatic that a criminal defendant’s right to a fair trial requires that he be tried before a jury panel not tainted by prejudice. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961). We have emphasized the importance, particularly in capital cases, of the trial court’s responsibility “to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process...” State v. Williams, supra, 93 N.J. at 63.
In criminal cases attended by widespread and inflammatory publicity, various trial management techniques can be employed to assure that the defendant’s right to an impartial jury is not compromised. One available option is a change in venue. Other means of protecting the defendant’s constitutional rights include the use of searching voir dire examinations, the impaneling of “foreign jurors” to augment the pool of eligible jurors in the vicinage, adjournment of the trial date, and restraints on public comments by participants in the trial. R. 3:14-2, -3; State v. Williams, supra, 93 N.J. at 67-68; State v. Van Duyne, 43 N.J. 369, 388-89 (1964), cert. den., 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965).
Defendant contends that the pretrial publicity was so prejudicial that no relief short of a change of venue was adequate to assure a fair trial. He therefore maintains that denial of the motion to change venue was an abuse of discretion and deprived him of his constitutional right to trial by an impartial jury.
We previously required a defendant seeking a change of venue to establish by “clear and convincing proof that a fair and impartial trial cannot be had before a jury of the county where the indictment was found.” State v. Wise, 19 N.J. 59, 73-74 (1955). The cases that followed Wise made clear that few defendants succeeded in their efforts to establish a need to change venue. See State v. Belton, 60 N.J. 103, 107-08 (1972); State v. Mayberry, 52 N.J. 413, 420 (1968), cert. den., 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969); State v. Gallicchio, 51 N.J. 313, 318, cert. den., 393 U.S. 912, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968); State v. Ravenell, 43 N.J. 171, 180-81 (1964), cert. den., 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). Accordingly, in 1983 in a capital case we modified the defendant’s burden, conferring on trial courts the discretion to change venue where it is “necessary to overcome the realistic likelihood of prejudice from pretrial publicity.” State v. Williams, supra, 93 N.J. at 67-68 n. 13; see State v. Bey, 96 N.J. 625, 630, clarified, 97 N.J. 666 (1984).
In determining whether a realistic likelihood of prejudice existe in a particular case, we agree with the distinction recognized by the federal courts between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600, 614 (1966); Estes v. Texas, 381 U.S. 532, 542-44, 85 S.Ct. 1628, 1632-34, 14 L.Ed.2d 543, 550-51 (1965); Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 549-50, 13 L.Ed.2d 424, 429 (1965); Rideau v. Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663, 665-66 (1963); Marshall v. United States, 360 U.S. 310, 312-13, 79 S.Ct. 1171, 1172-73, 3 L.Ed.2d 1250, 1252 (1959) (per curiam), and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel. Patton v. Yount, 467 U.S. 1025, 1032-35, 104 S.Ct. 2885, 2889-91, 81 L.Ed.2d 847, 854-56 (1984); Dobbert v. Florida, 432 U.S. 282, 301-03, 97 S.Ct. 2290, 2302-03, 53 L.Ed.2d 344, 361-62 (1977); Murphy v. Florida, 421 U.S. 794, 800-03, 95 S.Ct. 2031, 2036-38, 44 L.Ed.2d 589, 595-97 (1975); Irvin v. Dowd, supra, 366 U.S. at 723-28, 81 S.Ct. at 1642-46, 6 L.Ed.2d at 756-59; Stroble v. California, 343 U.S. 181, 193-95, 72 S.Ct. 599, 605-06, 96 L.Ed. 872, 882-83 (1952); see Coleman v. Kemp, 778 F.2d 1487, 1489 (11th Cir.1985) (“There are two standards which guide analysis of this question, the ‘actual prejudice’ standard and the ‘presumed prejudice’ standard.”), cert. den., — U.S. -, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986).
Illustrative of the cases in which prejudice is presumed is Rideau v. Louisiana, supra, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, where the defendant’s confession of bank robbery, kidnapping, and murder was televised on three occasions two months before the jury was selected and seen by a substantial number of residents in the parish where defendant was to be tried. The Court reversed the denial of defendant’s motion to change venue, observing that “[a]ny subsequent court proceeding in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Id. at 726, 83 S. Ct. at 1419, 10 L.Ed.2d at 665.
In contrast, in Murphy v. Florida, supra, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589, defendant, referred to by the national media as “Murph the Surf,” had attained notoriety for his complicity in the theft of the Star of India sapphire from a New York museum. His 1970 robbery prosecution in Dade County, Florida, was preceded by widespread publicity during 1968 and 1969, but the publicity largely ceased seven months before jury selection. In rejecting defendant’s contention that the pretrial publicity required a change of the venue for trial, the Court distinguished the intrusiveness of the publicity from that found in Rideau, supra, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Sheppard v. Maxwell, supra, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; and Estes v. Texas, supra, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543. The Court observed:
The proceedings in [those] cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of'the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner’s trial was not fundamentally fair.
[421 U.S. at 799, 95 S.Ct. at 2036, 44 L.Ed.2d at 594.]
It is abundantly clear to us that this is not a case in which the trial court was required to presume the existence of prejudice prior to the jury voir dire. The extensive pretrial publicity was concentrated in April and May, 1983. In addition to prohibiting further public comment by counsel, the trial court adjourned the trial date until mid-November, allowing nearly six months to permit the impact of the publicity to subside. As the Court stated in Patton v. Yount, supra, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847, rejecting defendant’s argument that his retrial, four years after his first highly publicized trial, was tainted by the earlier publicity, “the passage of time ... can be a highly relevant fact ... [that] rebuts any presumption of partiality or prejudice____” Id. at 1035, 104 S.Ct. at 2891, 81 L.Ed.2d at 856.
It has frequently been noted that pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury. We observed in State v. Williams, supra, that
there is also some reason to believe that even in highly publicized cases the venire will contain many individuals who have not been exposed to the publicity or who, if exposed, are only faintly aware of the nature of the case. See, e.g., United States v. Ehrlichman, 546 F.2d 910, 916-17 n. 8 (D.C.Cir.1976) [cert. den., 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977)]; United States v. Haldeman, 559 F.2d 31, 61-63 (D.C.Cir.1976) [cert. den. sub nom. Mitchell v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977)]; State v. Joyce, 160 N.J.Super. 419, 430 (Law Div.1978).
[93 N.J. at 66 n. 10.]
We therefore conclude that under the circumstances of this case, the appropriate inquiry is whether the jury selection process actually resulted in a fair and impartial jury. As we stated in State v. Van Duyne, supra, this inquiry requires us to examine the results of the jury voir dire.
[A]n appellate tribunal is likewise under a duty to make an independent evaluation of the facts and circumstances and of the juror’s voir dire examination. It should determine for itself whether the pretrial newspaper stories are so pervasive and so prejudicial, or the juror’s protestation of unaffected impartiality after reading them so unconvincing or doubtful that a new trial should be ordered.
[43 N.J. at 386.]
Jury selection in this case commenced on November 14, 1983, and continued for five consecutive days. A total of ninety-five jurors were questioned, of whom seven were excused by the court for personal reasons. Of forty-six jurors excused for cause, thirty-five indicated that their familiarity with the case would affect their ability to serve impartially. Six of the forty-six were excused because of their views concerning capital punishment, four because of personal experiences or relationships and one because of discussions she overheard in the jury room. All of defendant’s challenges for cause were denied. The prosecution used six peremptory challenges, while the defense used all twenty of its peremptory challenges. Only one juror, an alternate, was seated after the defendant’s peremptory challenges were exhausted.
The sixteen impaneled jurors, responding to the court’s interrogation, indicated that they had encountered little or no publicity regarding the case. Several of the trial jurors stated that they had never heard of the defendant before coming to court. We find that a substantial segment of the jury panel subjected to voir dire unequivocally and credibly demonstrated that the pretrial publicity had passed them by, and we are satisfied that the jury that was impaneled was as a whole impartial.
As noted above, the standard governing the trial court’s discretion on a venue change motion is whether the change is necessary to overcome the realistic likelihood of prejudice resulting from pretrial publicity. The dissent appears to agree that there are various options available to the trial court to dispel that likelihood (e.g., change of venue, postponement of trial, voir dire, foreign jurors, gag order), and that the ultimate test of whether it was dispelled is the voir dire and its results. Although the dissent contends it was not dispelled, the fact is that defendant on this appeal makes no complaint about the voir dire (except for the trial court’s initial refusal to hear challenges at side bar and to allow individual attorney questioning of jurors) or about the trial court’s rulings on his challenges for cause. Those rulings are highly discretionary. Assuming, nevertheless, that any was erroneous, application of the plain error rule, sua sponte, would be totally inappropriate given the satisfactory jury that ultimately was impanelled. Furthermore, the trial court told defense counsel, who had previously moved for change of venue, that it would not entertain the motion until after the voir dire; significantly no such motion was thereafter made. The reason must be that the impanelled jury in fact was satisfactory. That jury did not include anyone who recalled having previously read anything about other murders or a prior murder conviction. The only impanelled juror who had such knowledge (of alleged prior murders, but not the prior conviction) heard it from others on the panel. Her voir dire convinced the trial court—and apparently the defense, for she was not challenged for cause and no objection is now made to her serving—that she could disregard what she heard and serve impartially. Except for her, none of the jurors whose voir dire is excerpted in the dissent’s Appendix actually served on the jury-
We do not dispute defendant’s contention that this case was the subject of widespread and inflammatory publicity throughout the region during the spring of 1983. However, our independent review of the record of the jury voir dire impels us to conclude that a significant portion of the jury array was relatively unexposed to pretrial publicity and that the jurors impaneled constituted a fair and impartial trial jury.
C. Prosecutorial Misconduct
Defendant claims that he was denied an impartial jury as a result of the massive pretrial publicity which included and was encouraged by inflammatory statements made by the Monmouth County Prosecutor. The prosecutor arranged several press briefings in April, May and June 1983, during which he discussed the murders for which he was seeking to indict Biegenwald. The prosecutor gave the names, ages and addresses of the victims. He assumed defendant’s guilt, and commented on his motive, events surrounding the crimes, and portions of the State’s evidence. Among the prosecutor’s statements were that defendant committed the murders “because he wanted to see someone die” on those nights; that defendant shot Ms. Olesiewicz “for the sheer pleasure of seeing her die”; and that Biegenwald was a “perverted, sick individual.” On July 29, 1983, the trial court denied defendant’s motion to dismiss the indictment on the basis of prosecutorial misconduct.
Disciplinary Rule 7-107(A), (B) of the Code of Professional Responsibility states, in pertinent part:
(A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that he expects to be disseminated by means of public communication and that does more than state without elaboration:
(1) Information contained in a public record relating to the matter.
(2) That the investigation is in progress.
(3) The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.
(4) A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto.
(5) A warning to the public of any dangers.
(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not ... make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:
(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused____
(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.
This Court has held that Disciplinary Rule 7-107(B)(6) “prohibits an attorney involved in an ongoing criminal trial from making extrajudicial comments concerning the guilt or innocence of a criminal defendant or the quality of the evidence or the merits of the case when such remarks are ... reasonably likely to interfere with a fair trial.” In re Rachmiel, 90 N.J. 646, 657 (1982) (emphasis added). The disciplinary rule creates a “rebuttable presumption that statements on these topics are reasonably likely to affect the proceedings.” Id. (citing Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 251 (7th Cir.1975), cert. den. sub nom. Cunningham v. Chicago Council of Lawyers, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed. 2d 1204 (1976)).
The State argues that the prosecutor’s comments were permissible because they disclosed only the results of an ongoing investigation. For support, it relies on Disciplinary Rule 7-107(A)(3), which authorizes unelaborated statements by a prosecutor as to “[t]he general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.” We find this argument to be specious in the context of the inflammatory pretrial comments by the prosecutor in this case. The prosecutor’s public statements that defendant murdered Olesiewicz “for the sheer pleasure of seeing her die” or “because he wanted to see someone die that night” can hardly be justified as disclosures warranted by the “general scope of the investigation including a description of the offense____” DR 7-107(A)(3). Rather, such statements are clearly expressions of opinion on “the evidence, or the merits of the case,” unquestionably proscribed by Disciplinary Rule 7-107(B)(6). Particularly in a case like this one, characterized by feverish media interest and broad publicity throughout the state, such comments by the prosecutor are highly inappropriate and inconsistent with his duty to insure that justice is done. See State v. Johnson, 65 N.J. 388, 392 (1974); State v. Farrell, 61 N.J. 99, 104 (1972).
We here reiterate our firm position as stated in State v. Ramseur, supra, 106 N.J. 123, that prosecutors in capital cases have a special obligation to seek justice and to not simply convict, and that we will scrupulously review conduct that falls short of this high standard:
Prosecutors in capital cases are hereby on notice that in the future, this Court will not hesitate to refer on its own motion possible violations of the special ethical rules governing prosecutors to the appropriate district ethics committee for disciplinary action. We are well aware that within the legal profession the prosecutor’s double calling—to represent vigorously the state’s interest in law enforcement and at the same time help assure that the accused is treated fairly and that justice is done—is uniquely challenging. That challenge is what makes the prosecutor’s mission such a difficult one and such an honorable one. A prosecutor willing to engage in proscribed conduct to obtain a conviction in a capital case betrays his oath in both its respects. Not only does he scoff at rather than seek justice, he also represents the state poorly. Because death is a uniquely harsh sanction, this Court of necessity will more readily find prejudice resulting from prosecutorial misconduct in a capital case than in other criminal matters; prosecutors who fail to take seriously their particularly stringent ethical obligations in capital cases thus strongly risk postponing, and even jeopardizing, the enforcement of the law. We are confident that our prosecutors will be equal to this ethical challenge, but we also stand ready to take whatever action is required to remedy any abuses.
[Id. at 323-324.]
However, “[pjrosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial.” Id. at 322. Despite our strong disapproval of the prosecutor’s statements, we are persuaded that these statements, occurring as they did in April and May of 1983, did not “substantially prejudice the defendant’s fundamental right to have a jury fairly evaluate the merits of his defense.” State v. Bucanis, 26 N.J. 45, 56, cert. den., 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed.2d 1160 (1958). As we noted in connection with the change of venue motion, the pretrial publicity subsided in June, and the trial court’s July 1983 order barring statements by counsel and adjourning the trial date until November further served to mitigate the adverse impact of the prosecutor’s comments on the jury panel. We conclude, based on our careful review of the jury voir dire, that the interval between the prosecutor’s offending statements and the actual trial was sufficient to dilute their prejudicial effect and preserve defendant’s right to trial by an impartial jury.
IV.
Reasonable Doubt Charge in Guilt Phase
Defendant next contends that the trial court’s charge regarding the prosecution’s obligation to establish guilt beyond a reasonable doubt was improper and constitutes reversible error. He focuses on the following from the charge:
What do we mean by reasonable doubt?
The expression is very basic and really very simple.
A reasonable doubt is a doubt based on reason, reasoning processes.
Defendant does not construct any argument based on the quoted language, apparently content to rest on the implication that it is somehow wrong. Not confronted with any specific claim of error, we will not reach out to manufacture one.
We would be remiss, however, were we not to caution our trial courts against using any charge that has a tendency to “understate[ ]” or “trivialize the awesome duty of the jury to determine whether the defendant’s guilt was proved beyond a reasonable doubt.” Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264, 1272 (1977). Any instruction that suggests that the concept of reasonable doubt is “simple” may run the risk of detracting from both the seriousness of the decision and the State’s burden of proof. Because “[t]he degree of certainty required to convict is unique to the criminal law,” 364 N.E.2d at 1273, we would discourage the resort to any language that tends to minimize the indispensable nature of the “reasonable doubt” standard. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970); United States v. Pine, 609 F.2d 106, 108 (3d Cir.1979).
Turning to Biegenwald’s specific claims of error, they are that the charge (1) “did not ask whether the jurors had any doubt existing in their minds,” (2) “did not ask whether or not [the jurors] had given full and impartial consideration to all the evidence,” and (3) “did not comment upon the evidence or lack of evidence given by the prosecution nor did it call the jury’s attention to the same.” None of the contentions has merit.
In pertinent part the trial court’s charge on reasonable doubt was as follows:
What do we mean by a reasonable doubt?
The expression is very basic and really very simple.
A reasonable doubt is a doubt based on reason, reasoning processes. A reasonable doubt then is not a doubt which is based on guesswork. It is not a doubt based on a hunch.
It is not a doubt based on some sort of idle speculation.
It is not a mere possible doubt.
The test is not proof beyond any possible doubt.
That is not the test.
It’s not any imaginary doubt, because you may well know, everything in life, I suppose everything in human affairs is subject to some possible or imaginary doubt.
That is not the test.
The test is not proof beyond a possible doubt.
The test is proof beyond a reasonable doubt.
The law does not require absolute certainty, because as Benjamin Franklin said, other than death and taxes, there are very few things in life that are absolutely certain, so that is not the test, reasonable doubt.
Proof beyond a reasonable doubt is the test.
What is a reasonable doubt?
By way of other words to express the same concept, a reasonable doubt is an honest and reasonable uncertainty as to the guilt of the defendant which exists in your minds after you have given full and impartial consideration to all of the evidence in the case____
In essence, it’s a doubt which a reasonable thinking person has after carefully weighing all of the evidence in the case. (Emphasis added.)
Whereas standing alone the definition of reasonable doubt as “a doubt based on reason, reasoning processes,” might well be deemed inadequate, when read in conjunction with the entire charge it had no capacity to mislead the jury. Challenged portions of a jury charge must not be read in isolation; rather, “the charge should be examined as a whole to determine its overall effect.” State v. Wilbely, 63 N.J. 420, 422 (1973). Included in the portion of the charge quoted above is the court’s definition of reasonable doubt as an “honest and reasonable uncertainty as to the guilt of the defendant which exists in your minds after you have given full and impartial consideration to all of the evidence in the case.” This definition, coupled with the additional comments of the court, fully and accurately apprised the jury of the State’s burden of proof beyond a reasonable doubt. Read in context the challenged portion does not constitute error.
Proceeding to defendant’s next point, we note that had the trial court charged the jurors, as defendant contends was required, that a finding of guilt had to be based on the absence of “any doubt existing in their minds,” the instruction would have been manifestly incorrect. We need not tarry on the point longer than to repeat a basic principle of criminal law: the prosecution must establish all elements of the crime beyond reasonable doubt, e.g., In re Winship, supra, 397 U.S. at 363, 90 S.Ct. at 1072, 25 L.Ed.2d at 375; State v. Bess, 53 N.J. 10, 18 (1968), rather than beyond any possible or conceivable doubt.
Defendant’s next argument, that the court failed to instruct the jury on its obligation to give “full and impartial consideration to all the evidence,” is simply not supported by the record. One need look no further for refutation than the underscored portion of the charge above; and if one does look further, one will find that the charge is replete with admonitions to the effect that the jurors are to decide the case on the basis of all the evidence.
Finally, defendant complains of the trial court’s failure to have commented on the evidence—an objection not made at trial and hence one not eligible for appellate review “unless it is of such a nature as to have been clearly capable of producing an unjust result,” R. 2:10-2, that is, “legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.” State v. Hock, 54 N.J. 526, 538 (1969), cert. den., 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970) (quoted in State v. Latimore, 197 N.J.Super. 197, 213 (App.Div.1984), certif. den., 101 N.J. 328 (1985)). In any event we know of no authority—nor does defendant point to any—standing for the principle, constitutional or otherwise, that a court is compelled to make such comment. See Stevens v. Roettger, 22 N.J.Super. 64, 66 (App.Div.1952) (“It is elementary that a trial judge is not obliged to charge matters or comment with regard to the facts of the case ... ”).
The issue of the trial court’s comment on the evidence usually arises in a different context, one in which a defendant argues that the court should not have recited the facts of the case. In those situations our decisions have uniformly recognized the right of a trial court to comment on the evidence, e.g., State v. Mayberry, supra, 52 N.J. at 439-40; State v. Laws, 50 N.J. 159, 176-77 (1967), reargued, 51 N.J. 494, cert. den., 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968), and “oftentimes” even the duty to do so, Mayberry, supra, 52 N.J. at 439-40; Laws, supra, 50 N.J. 176-77. Ordinarily, however, trial courts comment on evidence only sparingly, if at all, the better to assure that the ultimate determination of facts is made by the jury. See L. Arnold, 32 New Jersey Practice, Criminal Practice and Procedure § 981 (2d ed. 1980). The rare situation in which a trial court exercises its discretion to delve into the facts is usually one in which the evidence is complex or the potential for confusion is great; and when that situation occurs, any comment must be designed to avoid unduly influencing or otherwise invading the province of the jury. In this case, the evidence was not overly complex or confusing, and the trial court was well within its discretion in choosing not to comment on the evidence. We find no error.
V.
Sentencing Issues
A. Jury Waiver
Biegenwald claims reversible error in the trial court’s denial of “defendant’s fundamental constitutional right to trial by jury” during the sentencing proceeding under the Act. He moved before the trial court to waive the jury in the sentencing phase of his trial, claiming that “the massive publicity generated by his trial” precluded his receiving a fair and just sentence. (We note that under this point heading defendant does not make a “pretrial publicity” argument, which is made in another context. See supra at 30-37.)
Although defendant signed a written waiver relinquishing his right to a jury trial for the separate sentencing phase, the prosecutor refused to consent to a non-jury trial. Under the Act, such consent is required in order for defendant to waive sentencing by jury. Section c(l) of the Act states:
The court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or pursuant to the provisions of subsection b. of this section. Where the defendant has been tried by a jury, the proceeding shall be conducted by the judge who presided at the trial and before the jury which determined the defendant’s guilt except that, for good cause, the court may discharge that jury and conduct the proceeding before a jury empaneled for the purpose of the proceeding. Where the defendant has entered a plea of guilty or has been tried without a jury, the proceeding shall be conducted by the judge who accepted the defendant’s plea or who determined the defendant’s guilt and before a jury empaneled for the purpose of the proceeding. On motion of the defendant and with consent of the prosecuting attorney the court may conduct a proceeding without a jury. (Emphasis added.)
In addition, Rule l:8-l(a) specifically requires the consent of the prosecutor as a condition to a defendant’s waiver of a jury in the sentencing phase of death penalty proceedings.
The prosecutor’s stated reason was that a jury that had witnessed defendant’s trial, had determined his guilt, and was intimately familiar with the facts of the case, would be in the best position to determine, on the basis of the evidence, whether the factual prerequisites for imposition of the death penalty had been established.
In denying defendant’s motion for a non-jury sentencing proceeding, the trial court observed that even if the prosecutor had consented, the court would not have acceded to the waiver. The court’s “basic reason” for this position was a belief that in capital sentencing the collective wisdom of the jury is preferable to a determination by a single judge.
On this appeal defendant argues that because the sentencing phase is a “separate and distinct criminal proceeding[ ], a defendant must be afforded a constitutional right to waive a jury trial, which right is not subject to the unilateral rejection of a prosecuting attorney.” The opportunity for prosecutorial veto of the waiver of jury trial, claims defendant, violates his “constitutional right to trial by jury, which of necessity embodies the consequential right to waive this protection”—a protection “long established for [defendant’s] benefit.” He does so without providing any authority for the proposition that he has a right to waive a jury.
We disagree with defendant’s sixth amendment claims. The case law is clear on this matter. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), involving a prosecution for violation of a mail fraud statute, petitioner, arguing in favor of his unrestricted right to waive a jury and submit to a non-jury trial, made contentions similar to those urged by this defendant: that the constitutional provisions relating to jury trial are “for the protection of the accused,” and that his “unconditional right ... to a trial by jury” gives rise to “a correlative right to have his case decided by a judge alone if he considers such a trial to be to his advantage.” Id. at 25-26, 85 S.Ct. at 785, 13 L.Ed.2d at 632-33. Specifically, petitioner challenged Rule 23(a) of the Federal Rules of Civil Procedure, which, like our Rule l:8-l(a), called for the consent of the government and the approval of the court before defendant’s waiver of jury trial could be recognized. Id. at 24, 85 S.Ct. at 783, 13 L.Ed.2d at 632. The Supreme Court concluded that “the Constitution neither confers nor recognizes a right of criminal defendants to have their cases tried before a judge alone,” id. at 26, 85 S.Ct. at 785, 13 L.Ed.2d at 633, and hence the Federal Rule calling for the government’s consent and the court’s approval “sets forth a reasonable procedure governing attempted waivers of jury trials.” Id.
In the course of his opinion for the Court in Singer, Chief Justice Warren reviewed the English common law of trial by jury, the colonial experience, and the Constitution and its judicial interpretations. Id. at 27-34, 85 S. Ct. at 786-90, 13 L.Ed.2d at 633-37. From all of these he drew the conclusion that “[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.” Id. at 34-35, 85 S.Ct. at 790, 13 L.Ed.2d at 638. The Court concluded:
In light of the Constitution’s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury—the very thing that the Constitution guarantees him.
[Id. at 36, 85 S.Ct. at 790, 13 L.Ed.2d at 638.]
This Court has adopted the same position in State v. Belton, supra, 60 N.J. 103: “The restriction against a unilateral waiver of jury trial by the accused presents no constitutional infirmity.” Id. at 110 (citing Singer v. United States, supra, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 633).
The United States Supreme Court has recently held that in capital sentencing whether a judge or jury shall make the ultimate decision may be determined by state statute. In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), the Supreme Court reviewed Florida’s capital sentencing statute, which permits the trial court to override a jury’s recommendation for life imprisonment. The Court addressed the issue of whether the “capital sentencing decision is one that, in all cases, should be made by a jury,” id. at 458, 104 S.Ct. at 3161, 82 L.Ed.2d at 351, and the Court recognized the fact that “despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding—a determination of the appropriate punishment to be imposed on an individual.” Id. at 459, 104 S.Ct. at 3161, 82 L.Ed.2d at 352.
As the Court indicated, the primary question should not be who makes the sentencing decision, but how that decision is made: “[t]he sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant____” Id. at 459, 104 S.Ct. at 3161, 82 L.Ed.2d at 351 (emphasis added). The Act meets that obligation. See Sec. c(5)(h). We can find no constitutional infirmity in its decision not to give a defendant an automatic right to insist on a non-jury determination of the sentencing issues.
B. Aggravating Factor c(4)(c) as Applied to Defendant
While defendant does not claim any error in the court’s charge on aggravating factor c(4)(c) (“[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim”), we treat the issue on our own motion because of its potential importance in other cases.
The trial court first quoted the factor. Based on our construction, the trial court should not quote the statute since the initial part of it serves no function under our definition. See State v. Ramseur, supra, 106 N.J. at 211. It will serve only to confuse the jury to tell it that it must find that the murder was “outrageously or wantonly vile, horrible or inhuman,” and then later instruct the jury to disregard that portion of the factor. There is no purpose in explaining to the jury why this first portion of the statute is irrelevant for its purposes. Mentioning it can only cause confusion.
After quoting the statute, the court continued by noting that although in a certain sense every murder may be viewed as vile, horrible or inhuman, that doesn’t mean that there is an automatic aggravating factor in every case of murder. The Legislature had something more in mind by making that an aggravating factor. What is necessary to exist is that the attack by the defendant on Anna Olesiewicz, the victim, involved either torture or conduct indicating a depraved mind or that the attack was so savagely outrageously cruel or violent, that the adjectives wantonly, vile or horrible or inhuman are justified.
That was the entirety of the court’s instructions on this aggravating factor in its main charge. The jury, quite predictably, after deliberating a very short time, returned to the courtroom with the request that the court “re-explain Part Two of the aggravating factors, clearer interpretation, because commas are confusing.” The jury was obviously referring to aggravating factor c(4)(c). What follows is the colloquy between the court and the jury:
THE COURT: The question you sent out is this: Re-explain part two of the aggravating factors, clearer interpretation, because commas are confusing.
I gather that you’re looking at number two on that verdict sheet?
The commas were put in there by the Legislature.
I just want you to know that.
That’s the way the Legislature defined it and gave it to you in the legislative language.
In what sense are the commas, it’s all in the disjunctive.
The word “or” is in there, that murder was outrageously wanton or vile or horrible or inhuman, in that it involved torture, or depravity of mind or an aggravated battery to the victim.
That’s I think what you can interpolate under English Grammar for the commas, is that what was the heart of the problem may be you can give me—
THE FOEELADY: The question also was, does the torture, the depravity of mind and aggravated battery, do any one of those three things have to apply?
That’s the point.
THE COUET: Any one of the three?
THE FOEELADY: Yes.
THE COUET: If it involved either torture or depravity of mind or aggravated battery is that—I think that’s a correct English reading of what the legislature wrote.
It’s in the disjunctive.
As I say, any one of those.
THE FOEELADY: O.K.
THE COUET: If it’s still confusing, try to extract what is the heart of the confusion, and to put it to me in a definite question.
THE FOEELADY: O.K.
It is obvious that this jury knew only that which a reasonably intelligent person would gather from reading this part of the statute, and that, decidedly, is not enough to guide anyone’s discretion in this decision. See Godfrey v. Georgia, 446 U.S. 420, 429, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398, 406-07 (1980). The total impact of the trial court’s charge in this regard was to leave the jury with this portion of the statute unexplained. As we stated in State v. Ramseur, supra, 106 N.J. at 198-199, Section c(4)(c) standing alone completely fails to channel the jury’s discretion and is impermissibly vague.
What was needed was a relatively simple charge that directed the jury to consider only Section e(4)(c) of the statute as we construe that section in State v. Ramseur, supra, 106 N.J. at 198-211. Under our interpretation of Section c(4)(c) there was insufficient evidence for the jury to consider that the murder of Anna Olesiewicz was accompanied by either an aggravated battery or torture. Assuming the State claimed the defendant’s acts fell within this Court’s definition of “depravity of mind,” the trial court could have instructed the jury as follows:
The State claims that the killing of Ms. Olesiewicz involved depravity of mind. If you unanimously find beyond a reasonable doubt that it did, then your answer shall be yes to that question on the jury sheet "That this murder involved depravity of mind.” In order to find that the killing involved depravity of mind, you must find that defendant killed his victim without any purpose or meaning because he had no reason for killing Ms. Olesiewicz other than wanting to kill.
These instructions should also direct the jury to consider all the circumstances of the murder in determining the defendant’s intent, because a defendant may not state his or her motive for killing.
The charge here failed to conform this section of the statute with constitutional requirements, and this failure would be reversible error had it been raised either at trial or on appeal. Since the sentencing proceedings are to be retried in any event, we need not decide whether, despite such failure, the matter would be reversed on our own motion because of this error.
What we do decide, however, is that, contrary to our dissenting colleague’s assertion, on retrial of the sentencing proceedings the State should not be foreclosed by considerations of double jeopardy from arguing the existence of aggravating factor c(4)(c). The jury should be permitted to consider that aggravating factor to the extent that it includes as one of its elements “depravity of mind” as we have defined it today. And only to that extent: we agree that the State will not be permitted to argue that the evidence warrants a finding that either an “aggravated battery” or “torture” of the victim satisfied the requirement of c(4)(c), for we have already determined that under a correct view of these factors the evidence was insufficient to go to the jury. To allow the State another opportunity to produce evidence of an “aggravated battery” or “torture” that it failed to muster at the original proceedings would run counter to fundamental double jeopardy principles. See State v. Tropea, 78 N.J. 309, 316 (1978) (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)).
That is not to say, however, that on retrial the jury should not be entitled to consider whether there is sufficient evidence of “depravity of mind” to justify imposition of the death sentence based on that element of c(4)(c). Although the State’s argument may have focused on Biegenwald’s commission of an “aggravated battery,” the trial court charged—and at the jury’s request recharged—that in order to satisfy c(4)(c), only one of these conditions, namely, torture, depravity of mind, or an aggravated battery, had to exist. The jury concluded that aggravating factor c(4)(c), as well as c(4)(a), had been established beyond a reasonable doubt; but the verdict does not reveal which feature or combination of features of c(4)(c) the jury accepted. It may well have concluded that “depravity of mind” had been demonstrated, but if so, it reached that conclusion on the basis of an improper charge. As we have demonstrated, the trial court’s instructions on c(4)(c) did not meet our formulation of that aggravating factor.
The evidence of “depravity of mind” at defendant’s trial was such as to permit a jury finding, under a correct instruction, that the State had demonstrated that discrete element of the aggravating factor. We suspect that the evidence of “depravity” at the new sentencing hearing will be the same, but of course it need not be. The point is that the jury should be permitted to assess, under a correct instruction, whether “depravity” has been shown. The United States Supreme Court has recently held that
the Double Jeopardy Clause does not require the reviewing court, if it sustains [the] claim [that the evidence was as a matter of law insufficient to support the aggravating circumstances on which defendant’s death sentence was based], to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected.
[Poland v. Arizona, 476 U.S.-,-, 106 S.Ct. 1749, 1756, 90 L.Ed.2d 123, 133 (1986).]
This case does not involve rejection of an aggravating factor by a jury followed by a retrial of that factor; here, retrial will be on a factor that the jury found to exist. The defendant cannot complain that the fact-finder will be given the opportunity to make its determination under correct instructions: We conclude that double jeopardy considerations will not bar defendant’s exposure to a death sentence at the retrial of the sentencing phase of the case.
C. Weighing Aggravating and Mitigating Factors
While defendant did not raise the issue either at trial or on appeal, we find that the trial court’s instructions in the sentencing proceeding constituted plain error of a nature to warrant our consideration sua sponte. See State v. Grunow, 102 N.J. 133, 148-49 (1986) (even in absence of objection, court must instruct jury on fundamental principles that control case); State v. Federico, 103 N.J. 169, 176 (1986) (obligation extends to proper charge on State’s burden of proof). The error concerns the jury’s function in balancing aggravating factors against mitigating factors, a function that leads directly to its ultimate life or death decision. Its effect was to allow a death sentence without a finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. We hold that such a finding was required by the Act at the time of defendant’s trial as a matter of fundamental fairness and that its absence mandates reversal and retrial of the penalty decision. Legislative policy also mandates this result, as indicated by the 1985 amendments to the Act; those amendments, furthermore, provide an independent basis for this result.
At the penalty phase, the prosecutor sought to establish two aggravating factors: that “[t]he defendant has previously been convicted of murder,” Sec. c(4)(a), and that “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,” Sec. c(4)(c). In support of those factors, the prosecutor submitted a certified copy of the 1959 murder conviction of defendant and asked the jury, based on the testimony at the guilt phase, to consider the murder outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim.
Defendant sought to establish three mitigating factors: (1) that defendant was under the influence of extreme mental or emotional disturbance, Sec. c(5)(a); (2) that defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, Sec. c(5)(d); and (3) that other mitigating factors existed relative to the defendant’s character or record, or to the circumstances of the offense, Sec. c(5)(h). To substantiate those factors, the defense presented a forensic psychiatrist who testified that although Beigenwald was not legally insane, he suffered from a severe personality disorder known as anti-social personality with paranoid traits.
In its instructions, the court charged with respect to balancing aggravating and mitigating factors:
If you find at least one aggravating factor exists, and it has been proven beyond a reasonable doubt, and also you’re satisfied that a mitigating factor exists, so you will check yes, on at least one aggravating factor, yes, on at least one mitigating factor, and then you must weigh the value that is represented by the mitigating factor or factors, one, two, three, whatever it is, against the value represented by each aggravating factor that you checked, and check on the verdict sheet whether in your judgment each aggravating factor is or is not outweighed by the combination of whatever mitigating factors you have found to exist
Unless each aggravating factor which you find is outweighed by the mitigating factor, or aggravating factors,[] or a combination of them, whichever you find, unless it is outweighed by the mitigating factors and you bring that back on your verdict sheet, the sentence will be death.
If each aggravating factor is outweighed by the mitigating factor or factors, or combination of them, the sentence then will be life imprisonment, with ineligibility for parole up to thirty years, so there is a weighing process and it occurs only if you found that both an aggravating factor, at least one, and at least one mitigating factor do exist, then you have to weigh the values that are represented by those factors, and come to your judgment as to whether the mitigating factor outweighs or does, not outweigh the aggravating factor, which you found. (Emphasis added.)
The special verdict form submitted to the jury asked it to find the existence of aggravating and mitigating factors and to determine if each aggravating factor was outweighed by the mitigating factors. The form completed by the jury is reproduced below:
VERDICT FORM AGGRAVATING FACTORS
DO YOU UNANIMOUSLY FIND BEYOND A REASONABLE DOUBT THAT ANY OF THE FOLLOWING AGGRAVATING FACTORS EXIST? (CHECK APPROPRIATE ANSWER.)
1. That the defendant, Richard Beigenwald has previously been convicted of murder.
Yes_ No_
2. That this murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
Yes_ No_
IF ALL OF THE ABOVE ARE CHECKED ‘NO’, PROCEED NO FURTHER BUT RETURN THIS VERDICT SHEET TO THE COURT AS YOUR VERDICT IN THE CASE SIGNED BY YOUR FORELADY.
Forelady
MITIGATING FACTORS
DO YOU UNANIMOUSLY FIND THAT THE FOLLOWING EXIST AS MITIGATING FACTORS? (CHECK APPROPRIATE ANSWER.)
1. The defendant, Richard Beigenwald, was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution.
Yes_ No_
2. The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution.
Yes_ No_
3. Any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.
Yes_ No
IF YOU HAVE CHECKED AT LEAST ONE AGGRAVATING FACTOR ‘YES’ AND HAVE CHECKED ALL OF THE ABOVE MITIGATING FACTORS ‘NO’ PROCEED NO FURTHER BUT RETURN THIS VERDICT SHEET TO THE COURT AS YOUR VERDICT IN THE CASE, SIGNED BY THE FORELADY. THE PENALTY WILL THEN BE DEATH.
Forelady
IF YOU HAVE CHECKED ONE OR MORE AGGRAVATING FACTORS ‘YES’ AND ONE OR MORE MITIGATING FACTORS ‘YES’, THEN STATE AS TO EACH AGGRAVATING FACTOR CHECKED ‘YES’ WHETHER IT IS OR IS NOT OUTWEIGHED BY ANY ONE OR COMBINATION OF ANY OF THE MITIGATING FACTORS CHECKED ‘YES’. THIS DECISION ALSO MUST BE UNANIMOUS. IF AN AGGRAVATING FACTOR IS FOUND AND NOT OUTWEIGHED BY MITIGATING FACTORS, THE PENALTY WILL BE DEATH.
AGGRAVATING FACTOR #1, IS, IS NOT (SELECT ONE AND CIRCLE IT) OUTWEIGHED BY THE MITIGATING FACTOR(S).
AGGRAVATING FACTOR #2, IS, IS NOT (SELECT ONE AND CIRCLE IT) OUTWEIGHED BY THE MITIGATING FACTOR(S).
Forelady
Although the court did not mention the possibility of the mitigating and aggravating factors being in equipoise, the clear conclusion from its statement that aggravating factors must be outweighed in order for a sentence of life imprisonment to be imposed was that if aggravating and mitigating factors were of equal weight, the penalty would be death. In addition, neither the court nor the verdict form instructed the jury that for the death penalty to be imposed, the State must prove the requisite balance beyond a reasonable doubt.
After returning twice to seek further guidance from the court, the jury found beyond a reasonable doubt that both aggravating factors existed. With respect to the mitigating factors, the jury did not find that the defendant was under the influence of extreme mental or emotional disturbance, Sec. c(5)(a), but did find that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect, Sec. c(5)(d). The jury also found as a mitigating factor that another unspecified factor existed relevant to the defendant’s character or record or to the circumstances of the offense. Sec. c(5)(h). The jury concluded that neither aggravating factor was outweighed by the combined mitigating factors.
The relevant language, as it existed at the time of the trial, is found in Section c(3):
The jury, or if there is no jury, the court shall return a special verdict setting forth in writing the existence or nonexistence of each of the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection. If any aggravating factor is found to exist, the verdict shall also state whether it is or is not outweighed by any one or more mitigating factors.
(a) If the jury or the court finds that any aggravating factor exists and is not outweighed by one or more mitigating factors, the court shall sentence the defendant to death.
(b) If the jury or the court finds that no aggravating factors exist, or that any aggravating factors which exist are outweighed by one or more mitigating factors, the court shall sentence the defendant pursuant to subsection b.
Another provision of the Act, Section c(2), provides that the State has “the burden of establishing beyond a reasonable doubt the existence of any aggravating factors,” and that the defendant has “the burden of producing evidence of the existence of any mitigating factors____”
The Act, in its original form, said nothing about the burden of proof in the weighing process. The trial court’s charge conforms to the Act’s original wording. Nevertheless, the literal reading has been the subject of criticism. For example, the initial report of the Trial Judges’ Committee on Capital Causes, see State v. Ramseur, supra, 106 N.J. at 155 n. 2, called for a charge that imposed on the State a burden of proving the result of the balancing process beyond a reasonable doubt, although the Act was silent in that regard. That conclusion was presumably based on New Jersey’s traditional concern for the rights of defendants charged with capital offenses.
New Jersey has always required proof beyond a reasonable doubt in criminal prosecutions. See, e.g., State v. Bess, supra, 53 N.J. at 18; State v. Emery, 27 N.J. 348, 353 (1958) (quasi-criminal drunk driving proceeding requires proof beyond a reasonable doubt). That requirement antedates any suggestion that the Constitution compels that burden. In re Winship, supra, 397 U.S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368; see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). We thus approach this statutory language with a long-standing practice in the criminal law of this state, a practice quite different from the terms of the statute.
Our construction of the statute is based to some extent on the functional similarity of aggravating factors and the weighing process itself to the traditional proof of “elements of an offense.” The burden is firmly fixed in this state where an element of an offense is involved: The State has the burden to prove that element “beyond a reasonable doubt.” N.J.S.A. 2C:l-13a. We note that in some other states “aggravating factors” are elements of the capital crime, and during the guilt phase of trial the State must prove beyond a reasonable doubt the existence of one or more aggravating factors before the defendant becomes “death-eligible.” See, e.g., State v. Silhan, 302 N.C. 223, 275 S.E.2d 450, 482 (1981). Technically, of course, the death penalty is imposed as part of the sentencing proceeding, and under ordinary analysis, the State need not prove its contentions at the sentencing proceeding beyond a reasonable doubt, even those that are statutorily prescribed. See McMillan v. Pennsylvania, 477 U.S.-, -, 106 S. Ct. 2411, 2415-19, 91 L.Ed.2d 67, 74-79 (1986) (where legislature provided mandatory sentence for visible possession of firearm, State need only prove possession by preponderance of evidence and there is not denial of due process when possession is statutorily defined as a sentencing consideration). Here, however, the sentencing proceeding calls for a different treatment because death is “profoundly different,” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978) (plurality opinion), both in terms of its consequences and because it is a procedurally unique sentencing scheme, see Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 1857, 68 L.Ed.2d 270, 278 (1981). The statutory requirement that the State must prove aggravating factors beyond a reasonable doubt—even though that proof is likewise part of a sentencing proceeding—is some indication of the Legislature’s appreciation of that difference, and of its probable intention to impose the same burden on the weighing process itself. The Legislature, in recognizing this functional equivalence by requiring proof beyond a reasonable doubt of any aggravating factor, demonstrated the appropriateness of attaching the protective requirements ordinarily confined to the determination of guilt to the sentencing proceeding as well. There may be analogous determinations made by a judge, of great import, that are governed by a standard that is not “beyond a reasonable doubt,” see, e.g., N.J.S.A. 2C:43-6b; but in New Jersey, where the jury is charged with making that value judgment, a determination of death despite reasonable doubt as to its justness would be unthinkable. We can think of no judgment of any jury in this state in any case that has as strong a claim to the requirement of certainty as does this one.
It is one thing to impose this burden of proof, beyond a reasonable doubt, where the statute is silent on the question; it is another to require the State to prove that the aggravating factors outweigh the mitigating factors when the Act provides, quite clearly, that the State must prove that the aggravating factors are not outweighed by the mitigating factors. The two formulations differ in result only when the jury finds that the aggravating factors and mitigating factors are in equipoise. If the State must prove the aggravating factors outweigh the mitigating factors, then equipoise will not result in a death sentence; if the State must prove that the aggravating factors are not outweighed by the mitigating factors, then equipoise does result in a death sentence. That single point on this shifting balance between aggravating and mitigating factors may make the difference between life and death. More than that, we believe that the phrasing of the question is more disadvantageous to the defendant than is suggested by the logical analysis wherein the only difference results where the factors are “in equipoise.” It is not a very substantial change in a juror’s mind that is required to transform “you must find, beyond a reasonable doubt, that the aggravating factors are not outweighed by the mitigating factors” to “you must find, beyond a reasonable doubt, that the mitigating factors outweigh the aggravating factors.”
This potential for confusion brings us to the strongest reason for interpreting the Act to require the State to prove, beyond a reasonable doubt, that the aggravating factors outweigh the mitigating. In no proceeding is it more imperative to be assured that the outcome is fair than in these cases. It is difficult to believe that the Legislature thought it fundamentally fair that a defendant be executed except where the mitigating factors outweigh the aggravating; the concept of executing him where the explanations for his misconduct (the mitigating factors) were equally as significant as the culpable aspects of that misconduct (the aggravating factors) is foreign to what the Legislature would certainly intend. We speak here about the ultimate value judgment, the ultimate question of life or death, for while the formulation is in terms of “beyond a reasonable doubt,” and therefore appropriately applicable to fact-finding, the weighing process really is not fact-finding at all but a judgmental determination by the jury, based on conflicting values, of whether defendant should live or die. See Barclay v. Florida, 463 U.S. 939, 950, 103 S.Ct. 3418, 3425, 77 L.Ed.2d 1134, 1144 (1983) (plurality opinion) (“It is entirely fitting for the moral, factual, and legal judgment of judges and juries to play a meaningful role in sentencing.”). If anywhere in the criminal law a defendant is entitled to the benefit of the doubt, it is here. We therefore hold that as a matter of fundamental fairness the jury must find that aggravating factors outweigh mitigating factors, and this balance must be found beyond a reasonable doubt.
There is persuasive legislative history for the position that the Legislature, despite the statutory language, intended to require that aggravating factors outweigh mitigating factors before the death penalty could be imposed. At a public hearing before the Senate Judiciary Committee, Edwin Stier, then Director of the Division of Criminal Justice in the Department of Law and Public Safety, testified concerning Senate Bill 112 (May 20,1982) (the bill that led to the enactment of the Act). It is clear from the questioning that the Committee was looking to Mr. Stier both for analysis and guidance and that his views were highly regarded. Numerous suggestions he made were adopted by the Committee. At a point when the question of the burden of proof of aggravating and mitigating factors was being discussed, Mr. Stier, having suggested that the Bill’s original requirement that mitigating factors be established “by a preponderance of the evidence” be eliminated, was asked, “Basically, you have eliminated that. Have you replaced it with anything? If not, what is the test? The trial judge is sitting there and he is asking himself.” Mr. Stier’s response was:
What we have tried to do is to establish the State’s burden beyond a reasonable doubt, to establish sufficient aggravating factors to outweigh the mitigating factors which exist. The defendant has no burden of proof on those mitigating factors. That is what we intended to do with this. (Emphasis added.)
Shortly thereafter the following question was posed: “Now, the ultimate test is, do the aggravating factors outweigh the mitigating. I raise the point I am raising now just to make sure we don’t have some trial judge that may be as confused as we lawyers here saying, ‘What do they intend?’ I raise that, Ed [Stier], because I want to know if you see any need to spell it out anymore?” Mr. Stier responded:
At this point, I can’t say that I do. I think what we have here is a situation in which the proceeding according to the way the bill is drafted would proceed as follows: the jury would have to find any aggravating factors beyond a reasonable doubt. Factually they would have to find those factors beyond a reasonable doubt. And, then they would weigh those aggravating factors against the mitigating factors. And, if they found that the aggravating factors outweigh the mitigating factors, they would impose the death penalty. Procedurally, that is how it would occur. (Emphasis added.)
The interpretation of the original version of the Act to require that the aggravating factors outweigh the mitigating beyond a reasonable doubt is also strongly supported by the recently passed amendment, L. 1985, c.178. The initial statement accompanying Senate Bill 950, introduced by Senator Russo in the 1984 session of the Legislature, says: “This bill is intended to clarify several procedural aspects of the capital punishment statute. Those clarifications are as follows: ... 5. clarify that aggravating factors must outweigh any mitigating factors in order for a death sentence to be imposed.” S.Stat. to S.950 at 1 (March 1, 1984) (emphasis added). The Bill also required that the balance be proven beyond a reasonable doubt. This statement of intent by the Legislature that it is “clarifying” a previous law is obviously not dispositive. Nevertheless, when combined with the testimony before the Senate Judiciary Committee, it constitutes persuasive support for this construction.
A provision of our Code of Criminal Justice designed to assure fairness among similarly situated defendants with respect to changes introduced by the Code supports our conclusion that especially in capital cases the equities require like procedural treatment among death-eligible defendants. While not directly applicable, this provision, N.J.S.A. 2C:l-lc(l), is instructive. It provides:
In any case pending on or initiated after the effective date of the code involving an offense committed prior to such date____ [t]he procedural provisions of the code shall govern, insofar as they are justly applicable and their application does not introduce confusion or delay____
While this provision was intended to accomplish justice in those cases that were pending when the Code of Criminal Justice was enacted by applying the Code’s procedural provisions where appropriate, it also signifies generally a legislative intention to give the benefit of new laws where possible, and where just, to those who are charged under old laws.
The legislative intent regarding retroactive operation of the amendment is somewhat clouded by the fact that both the Senate and Assembly Judiciary Committees’ Statements that accompanied the release of Senate Bill 950, which included numerous other amendments to the Act, indicated that the provisions were not intended to be retrospective or “to affect cases now on appeal.” See supra note 12. The force of that declaration is diminished, however, by the fact that the same Statements contain language clearly directing that this portion of its provisions (“aggravating factors [must] outweigh beyond a reasonable doubt all of the mitigating factors”) is intended to clarify the original version of the Act.
Ultimately our determination is based on fundamental fairness, a determination we believe the Legislature would share. The Act, from the date of its introduction to this very day, has been in a state of reevaluation, revision, and analysis. Chapter 178 of the Laws of 1985 has effected what probably will turn out to be the most substantial revision, but in fact there have been even later revisions and there aré bills still pending for further revision. The Legislature has apparently finally determined that in order for death to be imposed, the State must prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. Given the relatively short period of time that has transpired between the enactment of the Act in 1982, and the amendments in 1985, we would regard it as impermissibly harsh to apply to one defendant, on this critical question of life and death, a standard significantly less favorable than that to be applied to another defendant, merely because of the relatively short time differential between the commission of their crimes. Much more is at stake than doing justice to Mr. Biegenwald. What is at stake is the fundamental fairness of a system that generates life and death decisions.
We do not suggest that every time the criminal law changes for the benefit of defendants, it should apply to all who ever committed that crime, no matter how many years before that change, any more than we would imply (contrary to the Constitution) that when the criminal law is changed to make it harsher towards defendants, any such retroactive application would be appropriate. The unfairness, if there be any, in not applying the laws retroactively in these cases is balanced by the needs of the practical administration of justice; the system cannot continually retry, reevaluate, or resentence all those convicted under prior laws every time that law is changed. See State v. Burstein, 85 N.J. 394, 406 (1981); see also Johnson v. New Jersey, 384 U.S. 719, 727, 86 S.Ct. 1772, 1777, 16 L.Ed. 2d 882, 888 (1966) (in determining whether two decisions should be applied retroactively, the Court considered “the effect on the administration of justice”). However, with respect to the death penalty, and changes within only a three-year period that affect its imposition, it is both unjust, and probably outside of the Legislature’s intent, not to give those previously tried the benefit of provisions intended to have been in the law in the first place. Although we do not in any way rest our holding on considerations of efficiency, we note that there is no substantial problem of judicial administration here. Although our holding will require retrial of the sentencing proceeding in this case and in some others, the price is relatively small for assuring fairness in this most awesome of all determinations: shall the defendant live or shall he die?
We therefore hold that in all cases tried under the Act, in order for the death penalty to be imposed, the State must prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.
VI.
Resentencing
In vacating and remanding this death sentence, we foresee no double-jeopardy problems arising from resentencing defendant. It is, after all, standard practice for the United States Supreme Court to vacate and remand a death sentence for resentencing while leaving the underlying conviction intact. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1972). Many state statutes, moreover, provide explicitly for such a resentencing in the event that a death sentence is vacated on legal grounds (as opposed to insufficient evidence). See, e.g., Ala.Code 1113A-5-53(d) (1982); N.C.Gen.Stat. § 15A-2000(d)(3) (1984); Va. § 19.2-264.3(0) (1983); S.C.Code Ann. § 16-3-25(E) (1-2) (Supp.1984); La.Code Crim.Proc.Ann. tit. 30, ch. 3, art. 905.1(B) (1984); cf. Ga.Code Ann. § 17-10-35(e)(l-2) (authorizing the State Supreme Court to “[s]et the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel ... ”). But see Ohio Stat.Ann. § 2929.06 (1982) (providing for imposition of life sentence should resentencing be required); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984) (resentencing shall result in imposition of life imprisonment); Eddings v. State, 688 P.2d 342 (Okla.Crim.App.1984) (construing provision identical to Georgia’s, holding that resentencing shall result in modification of sentence to life imprisonment), cert. den., 470 U.S. 1051, 105 S.Ct. 1750, 84 L.Ed.2d 814 (1985).
The present case is distinguishable, moreover, from Bullington v. Missouri, supra, 451 U.S. 430, 101 S. Ct. 1852, 68 L.Ed.2d 270, in which the Court held that a defendant who had successfully appealed a conviction for which a life sentence had been given could not be exposed to a death sentence on retrial; retrial of the instant case on the issue of penalty would result in no escalation in the severity of the potential punishment. See Knapp v. Cardwell, 667 F.2d 1253, 1265 (9th Cir.1982) (distinguishing Bullington in part because “[t]he sentence that can be imposed on resentencing here cannot be more severe than that previously assessed”), cert. den., 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982); State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978) (en banc), cert. den., 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979).
Resentencing cannot be considered double-jeopardy where the first sentence was a death sentence and the evidence was sufficient. This does not mean that the State can charge any aggravating factors at resentencing that were not found by the jury in the first sentencing phase. Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36, 39 (1982), cert. den., 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); see also Miller v. State, 237 Ga. 557, 229 S.E.2d 376, 377 (1976) (pre-Bullington case holding that “a new trial on the sentence can be held before a new jury where the jury that convicted the accused also sentenced him to death and the sentence was reversed on appeal because of some error that infected the sentence”).
Under this state’s prior capital punishment statute, trials were unitary, and an error affecting the imposition of sentence resulted, until State v. Laws, 51 N.J. 494, cert. den., 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968), in a remand for a new trial on the issues of both guilt and sentence. See, e.g., State v. Mount, 30 N.J. 195 (1959); State v. White, 27 N.J. 158 (1958). In State v. Laws, supra, 51 N.J. 494, however, this Court .modified defendants’ sentences to life imprisonment where an error affected penalty alone. The Court held that a retrial limited to the issue of penalty would be inappropriate; its holding was based largely, however, on practical grounds:
Obviously, the old jury could not now be reconstituted ... [n]or could a new jury pass on the matter of punishment alone without being familiar with “all the evidence____” It is conceded that the State would be unable to produce all of the witnesses at the original trial, and any suggestion that a new jury could fairly be called upon to read the many thousands of pages of testimony at the former trial in lieu of hearing live witnesses, would appear to be too unrealistic to require discussion.
[Id. at 512.]
Thus, the Court did not reject a resentencing trial on double-jeopardy grounds. The Court acknowledged, moreover, that its resistance to resentencing was due largely to the fact that bifurcated trials were foreign to New Jersey, id.; “[wjhether bifurcation should be adopted for the future,” the Court advised, “calls for thorough study.” Id. That “thorough study” can be said to have resulted in the passage of the Act we uphold today. Because Laws was decided under a unitary trial statute, and because the Laws Court’s major misgiving about a separate trial on the issue of penalty—the foreignness of bifurcation—has been removed, Laws is not controlling precedent for the present case.
Since the reversible error affects only the sentencing proceeding, retrial shall be limited to that portion of the trial. Guilt shall not be retried. See State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105, cert. den., 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed. 2d 174 (1983); Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983); State v. Teague, 680 S.W.2d 785 (Tenn.1984).
Numerous questions may arise on resentencing, questions that are best answered initially at the trial level, and best determined by an appellate court on a full record. In the interest of judicial economy, however, we will provide some tentative directions, guidance and suggestions.
The Act is silent with respect to proceedings on retrial. The major question is whether to attempt to impanel the same jury that heard the case originally or to select a new jury. While the original jury has the advantage of having heard the testimony at the guilt phase of the trial (thereby avoiding the necessity of repeating some of that testimony), the disadvantages far outweigh the advantages. Even as to the supposed “advantages,” the time lag between the original trial of the guilt phase and the retrial of sentencing phase may be so long as to raise a question about the initial jury’s ability to remember that testimony. Intervening events would be a subject of careful examination on voir dire in order to assure that they have not prejudiced any of the original jurors, as well as to ascertain whether any juror’s mind had become unalterably fixed on the question of the sentence. We believe that these objections— not to mention the problems that may arise simply in locating and impaneling the original jury—are almost insuperable. We therefore conclude that a new jury must be selected. See State v. Finnell, 101 N.M. 732, 688 P.2d 769, 772, cert. den., 469 U.S. 918, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984); Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422, 431 (1985), cert. den., — U.S. -, 106 S.Ct. 1503, 89 L.Ed.2d 983 (1986); Hopkin son v. State, 664 P.2d 43, 84 (Wyo.), cert. den., 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).
It seems clear that, where the witnesses are available, the State is required to present testimony through them rather than by offering a transcript of their testimony at the original trial. See State v. Arnett, 125 Ariz. 201, 608 P.2d 778, 780 (1980). Ordinary rules of hearsay call for such live testimony. See Evid.R. 63(3). While the Act’s reference to the State’s obligation to comply with the Rules of Evidence (see A. 1985, c. 178) presumably contemplates the initial trial, there is no reason why this obligation should not also be applicable to resentencing. Therefore both the hearsay rule itself and the Act require live testimony where the witness is available. There likewise seems to be no reason why the Act should not also be used in determining the form of evidence to be presented by defendant. The Act allows proof of mitigating circumstances without regard to the Rules of Evidence. A. 1985, c. 178. We therefore conclude that defendant has the option of presenting either live testimony or transcripts of testimony even where the witness is available. Under those circumstances, however, the rule allowing the State to rebut such ordinarily inadmissible testimony without regard to the Rules of Evidence (A. 1985, c. 178) should also apply.
Since the retrial is limited to resentencing, the only admissible evidence is that relevant to the issue, namely, evidence of aggravating and mitigating factors. Retrial of issues relevant only to guilt is not permitted. While defendant may lose whatever advantage inheres in the “residual doubts” that the original jury may have had regarding defendant’s guilt, see Lockhart v. McCree, 476 U.S.-,-, 106 S.Ct. 1758, 1769, 90 L.Ed.2d 137, 153 (1986), the State may also lose whatever “advantage” inheres in the emotional impact that often surrounds the initial guilt phase. A substantial amount of the evidence admitted initially in the guilt phase nevertheless may be admissible in the retrial of the sentencing proceeding, for often issues relevant to one are relevant to the other. In this case, the State will presumably be required to prove the circumstances of the murder, as it did in the guilt phase, in order to prove aggravating factor c(4)(c).
Finally, it seems as if the State and the defense are free to present new evidence, testimony or documentation not presented at the original sentencing proceeding, and that the new jury may reach conclusions concerning aggravating factors and mitigating factors different from and inconsistent with the findings at the original sentencing proceeding. In other words, neither side is assured, at the new trial, of the “benefits” gained in the original trial. The only constitutional restriction applicable to retrials in criminal cases is that the defendant may not be subject to punishment beyond that imposed in the first trial, and since death was the verdict in the first trial that issue is immaterial here.
Conclusion
As we stated in State v. Ramseur, supra, 106 N.J. at 331, it is not for this Court to pass on the wisdom or the ultimate morality of the death penalty. That issue is for the Legislature and the Governor, and for them alone. Our function is to determine whether their decision and the law implementing it are constitutional, and thereafter to review cases where the death penalty is applied. We find the act constitutional in all respects but reverse the imposition of the death penalty for the reasons set forth above and remand the matter for a new trial of the sentencing proceedings only, in accordance with this opinion. We affirm the murder conviction.
N.J.S.A. 2C:ll-3, containing the Code's murder provisions, consisted of five subsections, (a) to (e), at the time of these crimes and their trials. The death penalty provisions are found in subsections (c) to (e). For convenience, in referring to these provisions we shall, for instance, use Sec. c(l) to designate N.J.S.A. 2C:ll-3c(l). When cited in its totality, N.J.S.A. 2C:ll-3 will hereinafter be referred to as "the Act."
Biegenwald was subsequently indicted for four other murders: Maria Cial-Iella, allegedly murdered on October 31, 1981; Debra Osborne, on April 7, 1982; Betsy Bacon, on November 20, 1982; and William Ward, on September 21, 1982. See State v. Biegenwald, 96 N.J. 630, 633 (1984) (per curiam). Biegenwald was found guilty of the murder of William Ward on February 16, 1984, and sentenced to life imprisonment. Id. at 633-34.
During the balance of the jury voir dire, the trial court permitted challenges for cause to be asserted at side bar.
Rule l:8-3(a) (1983) provides:
For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court’s interrogation in its discretion. At trials of crimes punishable by death ..., the examination shall be made of each juror individually, as his name is drawn, and under oath.
Our references to prosecutorial misconduct are not intended to suggest that this Court has adjudicated an ethical offense on the part of the prosecutor. Issues of that kind can be determined only in disciplinary proceedings. Our conclusions are based on the facts that appear before us on this record and are limited to this case only.
The statement by the court that it would not allow the jury to be waived even if the State were to give its consent appears to compel sentencing by jury in all cases regardless of the individual circumstances. Without commenting on the wisdom of this insistence on jury sentencing, we point out that the statute, Sec. c(l), unmistakably calls for an exercise of discretion by the trial court based on its consideration of the circumstances of the case.
Defendant’s assertion that "prior convictions, especially those being appealed are not allowable Into evidence” is meritless. Evidence of a defendant's prior murder convictions is admissible at sentencing to establish the existence of Section c(4)(a), the aggravating factor based on such prior murder convictions. The United States Supreme Court has upheld the constitutionality of statutes which, like Section c(4)(a), allow the use of prior convictions to guide sentencing decisions in death penalty cases. See, e.g., Zant v. Stephens, 462 U.S. 862, 886, 103 S.Ct. 2733, 2747, 77 LEd.2d 235, 255-56 (1983); Gregg v. Georgia, 428 U.S. 153, 165 n. 9, 193-95, 96 S.Ct. 2909, 2921 n. 9, 2934-36, 49 L.Ed.2d 859, 870 n. 9, 886 (1976); Proffitt v. Florida, 428 U.S. 242, 248 n. 6, 251, 96 S.Ct. 2960, 2965 n. 6, 2966, 49 L.Ed.2d 913, 921 n. 6, 922 (1976). At the time of defendant's trial prior murder convictions still being appealed were inadmissible under Section c(4)(a), State v. Biegenwald, supra, 96 N.J. 630, 477 A.2d 318; State v. Bey, supra, 96 N.J. at 628-29. These decisions have been effectively overruled by ¿.1985, c.178, amending the Act to allow for the consideration of murder convictions under Section c(4)(a) regardless of whether an appeal is pending. The prosecutor in this case, however, introduced only defendant’s 1959 murder conviction—a conviction as to which appellate review had long ago run its course. (Indeed at the time of sentencing in this case defendant had not yet been convicted on any of the other murder charges, see supra note 2, filed against him in 1983 and 1984.)
The court presumably intended to refer here to "mitigating factors” (rather than "aggravating factors”). The balance of the charge clarifies the slip.
The trial court instructed the jury that it was to weigh each of the aggravating factors against all of the mitigating factors. Other trial judges have read the statute as requiring that all aggravating factors were to be weighed against all mitigating factors. For example, the trial court so instructed the jury in State v. Ramseur, supra, 106 N.J. at 317. The 1985 amendment to the Act sought to ‘‘[cjlarify that the aggravating factors must outweigh any mitigating factors in order for a death sentence to be imposed.” Stat. of Purpose to S.950 at 2 (Nov. 29, 1984). The statute, as amended in 1985, clearly requires that all aggravating factors are to be balanced against all mitigating factors. Sec. c(3)(a) and (b). A bill introduced in 1986, passed by the Senate and pending in the Assembly, provides even more specifically that the jury must weigh "the sum total of all of the aggravating factors” against "the sum total of all of the mitigating factors" before a verdict of death shall be imposed. S.1680 at 3 (Feb. 10, 1986). Although the trial court incorrectly charged the jury that it was to weigh each aggravating factor against all mitigating factors, we note that particular error obviously did not prejudice the defendant. On the contrary, it favored him.
That Judges’ Committee was sharply divided over whether the jury must also find that the aggravating factors outweighed the mitigating factors, even though the statute clearly set forth a different standard, namely, that the jury must find that the aggravating factors are not outweighed by the mitigating factors. The majority agreed with the trial court in this part of the formulation, but disagreed with its omission of the "beyond a reasonable doubt" burden. As noted above, we have concluded not only that the "beyond a reasonable doubt" burden applies, but that properly construed, the Act calls for a finding that the aggravating factors outweigh the mitigating factors.
The initial report of the Judges’ Committee on Capital Causes, supra, illustrates awareness of this potential confusion, and ”restat[ed] the test,” in its original report, Judges Bench Manual for Capital Cases at 69 (September 1982), as follows: ”[T]he death penalty is imposed if the jury is convinced beyond a reasonable doubt that the aggravating factors either outweigh the mitigating factors or that the weight of the aggravating factors and the mitigating factors are equal" (Emphasis added.) The same formulation is given in the proposed charge to the jury suggested by that Committee. Id. at 70-71. The potential for confusion, however, is nowhere better illustrated than in the proposed special verdict form in the Manual where the question for the jury is: "Are you convinced beyond a reasonable doubt that the mitigating factor[s] outweigh the aggravating factor[s]. Please check one. Yes _ No _." The Bench Manual, referring to the verdict sheet in its proposed charge, provides: "Notice that on your verdict sheet you are asked, ‘Do the mitigating factors or factor outweigh the aggravating factors or factor?1 You must check “Yes’ or ‘No.’ Check ‘No’ only if you are convinced beyond a reasonable doubt that the aggravating factor[s] outweigh[s] the mitigating factor[s] or that the aggravating and mitigating factors are of equal weight.” Id. at 71. This statement from the proposed charge purporting to explain the question on the verdict sheet directly contradicts it. It would be unclear whether a defendant was sentenced to death because the jury, although believing that the mitigating factors outweighed the aggravating, was not convinced of this beyond a reasonable doubt—whereas the law provided that all that was required to avoid death was that the jury find the mitigating factors outweigh the aggravating even though the jury would have the greatest doubt about the conclusion. All subsequent proposed special verdict sheets eliminated that particular confusion.
The Committee on Capital Causes made it clear in its first revision to the Judge’s Bench Manual for Capital Cases (Jan. 17, 1983) that its conclusion requiring a "beyond a reasonable doubt" charge was a majority view and that judges who disagreed should follow their "own independent judgment"; it also indicated that a vocal minority disagreed with the interpretation that allowed death to be imposed where aggravating and mitigating factors were in equipoise. Id. at 72.
The Senate Judiciary Committee, however, issued a subsequent statement on November 29, 1984, to accompany S.950. S.Stat. to S.950. The later statement says in the introductory paragraph that “Senate Bill No. 950 proposes a series of amendments to New Jersey’s capital punishment statute. In enacting the amendments contained in this bill, the intent of the Legislature is to effect only prospective changes. The amendments are not intended to apply retrospectively or to affect cases now on appeal." Id. at 1. Furthermore the Assembly Judiciary Committee Statement dated February 4, 1985, contains language identical to that in the later Senate Statement above. AssembJudiciary Comm.Stat. to S.950 at 1. Both of these statements, however, indicate in the specific section on weighing aggravating and mitigating factors that the bill merely “clarifies” that there is a reasonable doubt requirement whereas the previous statute was “silent” on the issue. In sum, despite our conclusion that the balancing provision of Senate Bill 950 was intended only to clarify the earlier statute, this conclusion is admittedly less than crystal clear from the legislative history.
In State v. Molnar, 81 N.J. 475 (1980), although finding that the equities in that case did not justify retroactive application, we held that the question of allocation of burden of proof was a "procedural provision” within the meaning of N.J.S.A. 2C:l-lc(l), and that cases on appeal were "pending” within the meaning of that section. Id. at 487-89.
See L.1985, c.478; S.1680 (Feb. 10, 1986).
We note that a Senate bill introduced in 1986 by Senator Russo would, among other things, further clarify the weighing function by providing that "if any aggravating factors are found to exist, the verdict shall state whether the sum total of all of the aggravating factors outweigh beyond a reasonable doubt the sum total of all of the mitigating factors which are found to exist.” S.1680 at 3 (Feb. 10, 1986) (emphasis added).
We note that only 15 capital cases were tried before L.1985, c.178 was enacted.
[OPINION BY HANDLER, J., type=dissent]
HANDLER, J.,
dissenting.
Richard Biegenwald was convicted of murder and sentenced to death. He challenges the constitutionality of the capital murder-death penalty statute, L. 1983, c. Ill, under which he was prosecuted. He claims that other errors occurred in the course of his prosecution and trial that require a reversal of his conviction and sentence. The majority sustains the murder conviction but reverses defendant’s death sentence. I would reverse defendant’s conviction as well as his sentence, and therefore dissent.
The Court, essentially for the reasons expressed in the companion case of State v. Ramseur, 106 N.J. 123 (1987), also decided today, upholds the constitutionality of the capital murder-death penalty statute. It also concludes that there was no reversible error occasioned by adverse pretrial publicity that was aggravated by the conduct of the prosecutor, or by the denial of a change of venue, or by the manner in which the voir dire examination of petit jurors was conducted. It further determines that there was no reversible error with respect to the trial court’s charge on “reasonable doubt” or the denial of defendant’s request to waive a jury in the sentencing phase of the trial. With respect to the trial on sentence, however, the Court finds that the trial court failed to give a correct instruction concerning the meaning and application of an aggravating factor critical to the determination of capital murder and did not properly instruct the jury as to the establishment and weighing of aggravating and mitigating factors, which errors created sufficient prejudice to require reversal of the death sentence and a remand for a resentencing trial at which defendant will face again the prospect of the death penalty.
I differ from the Court as to the constitutionality of the capital murder-death penalty statute. I expressed the opinion in Ramseur that the Court must examine the constitutional issues in terms of both the federal and State Constitutions. Particularly, the Court must analyze and apply state constitutional principles because federal constitutional doctrine relating to capital punishment is seriously flawed and because state sovereign concerns relating to the death penalty markedly outweigh any national interest in capital punishment or other concerns of federalism. I reasoned that state constitutional principles place the highest value on individual life and require the greatest protections when life itself is at stake; these principles, enhanced by considerations of fundamental fairness, impel the conclusion that the capital murder-death penalty statute is violative of state constitutional standards prohibiting cruel and unusual punishment and mandating due process. Because these major constitutional issues were fully considered by the majority and dissenting opinions in the Ramseur case, and are not further treated by the Court in this case, I have not here again addressed the constitutionality of the capital murder-death penalty statute.
In addition to differing sharply from the Court on constitutional grounds, I cannot agree with its determination that defendant’s murder conviction was not severely prejudiced by intense adverse pretrial and trial publicity, which was materially exacerbated by prosecutorial misconduct and was not cured by a change of venue or corrected by an adequate voir dire examination of jurors. I agree with the reasoning of the majority that reversible error occurred with respect to the trial court’s instructions on sentencing. However, because of the evidentiary insufficiency and incorrect charge relating to a material element of capital murder, namely, the aggravating factor of c(4)(c), I believe that the reversal of defendant’s death penalty sentence should be deemed an acquittal on the death sentence and constitute a bar to another trial seeking the death penalty.
These issues are the subject of this dissenting opinion. I address first the nature and extent of the adverse pretrial publicity, noting particularly its impact upon the selection of jurors. I then consider whether defendant was entitled to a change of venue, emphasizing the heightened standards governing the right to a fair and impartial jury in a prosecution for capital murder. This concern requires consideration of whether the voir dire examination was adequate to overcome the effects of prejudicial pretrial publicity and to assure defendant’s right to a fair and impartial jury in light of the fact that the trial court refused to change the venue of the trial. Finally, I review the grounds for reversing defendant’s death sentence and consider whether defendant, under state constitutional principles of double jeopardy and fundamental fairness, can again be tried for the purpose of imposing the death penalty.
I.
Defendant claims that he was denied a fair trial before an impartial jury due to massive prejudicial pretrial and trial publicity, which was materially aggravated by the prosecutor’s needless and unjustifiable publicizing of the case prior to trial. Defendant contends that it was error to deny his motion to change venue in the face of such prejudicial publicity. He further contends that this prejudice was not otherwise overcome, particularly in that the trial court failed to conduct an adequate voir dire examination of jurors. Moreover, the court’s refusal in the voir dire to excuse several jurors for cause or to allow the attorneys to question prospective jurors or to permit defense counsel to challenge jurors for cause at side bar compounded the inadequacies of the voir dire.
These errors, defendant contends, violated his right to a fair trial under the due process guarantee of the fifth and fourteenth amendments and the sixth amendment right to an impartial jury under the federal Constitution, as well as Article I, paragraphs 1 and 12 of the State Constitution. A proper understanding of these issues and their resolution entails first a detailed exposition of the facts relating to the publicity surrounding the investigation and prosecution of the crime and its impact on prospective and selected jurors when the trial commenced.
A.
Media coverage of defendant’s crime was extensive, graphic, and sensational. During a three to four month period in the spring and early summer of 1983, there was widespread publicity about the defendant in newspapers distributed throughout Monmouth County, the vicinage in which the prosecution was brought. Newspaper articles linked the defendant to as many as seven murders in the area; they also disclosed the fact that defendant had a prior murder conviction. Front-page articles in the widely read Asbury Park Press during this period contained pictures of police efforts to find and recover buried bodies and maps to grave sites where bodies were found, as well as pictures of the shackled defendant; they also related interviews of persons who knew defendant and interviews of families of the victims. There were also news stories that focused on how forensic medical personnel identified unknown bodies through dental charts.
The sensationalism of this publicity was fed by the prosecutor himself. The prosecutor established a telephone “hot-line” number to receive calls from anyone with information about the murders or defendant and gave this significant publicity. Moreover, the press was specifically invited by the prosecutor to witness and report on investigations involving defendant. By the prosecutor’s own admission, some 200 reporters went to defendant’s mother’s house on Staten Island to observe and report on digging operations for bodies at that site. The prosecutor also held several press conferences. During one press conference a victim’s clothes, jewelry and dental charts were brought and were photographed and reported by the media. In another press conference the prosecutor clearly indicated that he believed that defendant was guilty. He also made numerous publicized comments concerning defendant’s motive for the murders and the events leading to the murders, giving the impression that these matters were factually true. One article, headlined “[Prosecutor] hoping stab victim adds to Biegenwald profile,” quoted the prosecutor as saying that investigators were concentrating on identifying a body “believed to be the fifth of [the defendant’s] victims.” (See Asbury Park Press, April 24, 1983 at 1, col. 1.) Among the prosecutor’s oft-repeated statements to the press were that defendant murdered his victim “for the sheer pleasure of seeing her die” (Asbury Park Press, May 5, 1983 at 1, col. 4); “because he wanted to see someone die that night” (Star Ledger, May 21, 1983 at 1, 9); “I guess she wouldn’t die til [sic] he shot her twice or more”; that four of his victims died because Biegenwald enjoyed killing people; and that he was a “perverted, sick individual” (Asbury Park Press, May 5, 1983 at 1, col. 4). As a result of such characterizations, defendant was referred to in headlines of the Trenton Times and Daily News as the “Thrill Killer.” News coverage relating to defendant’s involvement in these crimes was also presented on the radio and television.
In the wake of this adverse publicity, defendant brought a motion for a change of venue. The assignment judge denied this motion on July 29, 1983. However, the court did issue an order enjoining the prosecutor from making further comments to the press regarding non-indicted matters and from making inflammatory remarks of any kind. Nevertheless, the publicity again flared up on Sunday, November 13, 1983, the day before the trial began. On that day, the Asbury Park Press carried a front-page article on the upcoming trial, featuring a picture of the defendant, revealing his prior conviction, repeating the prosecutor’s statements on lack of motive, and linking the defendant to five other murders in the area. It is undisputed that some jurors read newspaper accounts of the trial in the jury assembly room before they were empaneled. Thereafter, press coverage remained constant, continuing on a daily basis and relating the details of the jury voir dire examination and the trial itself. The entire trial was televised.
There was a tangible impact from this publicity on the jury-selection process. Defense counsel objected to empaneling the jury and sought a change of venue on the ground that the prejudice from this adverse pretrial publicity could not be overcome and, further, that the voir dire examination of jurors would itself be insufficient to establish a basis for a change of venue. The trial court denied the motion, stating at one point that if fifty jurors said their deliberations would be affected by the publicity, the defendant would have “an argument” for a change of venue. At another time, the court stated that it would not entertain the motion to change venue until after the voir dire and that it would not grant the motion unless 250 prospective jurors said they could not be impartial.
The voir dire procedure was undertaken by the trial court between November 14 and 18, 1983. The examination purported to address the problems created by the pretrial publicity.* The trial court instructed the prospective jurors not to discuss the case among themselves. The jurors were asked about the publicity to which they were exposed and whether such publicity would affect their determination of guilt. However, the trial court initially refused, over defendant’s objection, to question jurors about the details they recalled from the pretrial press accounts they had read; the court indicated it would consider asking the jurors only whether they were thinking about all the indictments, since the press reported them together. Defense counsel then moved unsuccessfully for a mistrial on the grounds that jurors were being seated who would give consideration to other crimes and because the court refused to allow the attorneys to state their cause objections at side bar, outside the juror’s hearing.
Before any peremptory challenges were exercised, sixteen jurors, who were not otherwise excused for cause, were seated. Throughout the voir dire, the court asked most jurors what they recalled; it sought to determine from their answers whether they knew about more than one murder or about defendant’s prior conviction. Nevertheless, the court ruled that it would not excuse anyone for cause unless the juror expressly stated that he or she could not be impartial. Defense counsel again moved for a mistrial, claiming that the voir dire conducted by the trial court was an insufficient basis on which to exercise challenges in a capital case.
About half of each panel was excused at the outset because persons could not serve for the four to six weeks that the trial court estimated the case would last. Ninety-five prospective jurors were questioned before the final sixteen-member jury was seated. Seven of these prospective jurors were excused, due to personal conflicts, before the court questioned the remaining jurors about what they read or heard about the case. Of the remaining eighty-eight who were questioned, forty-seven were exposed to significant pretrial publicity and recalled specific details—usually that there were several murders, that bodies were found buried in Staten Island or Monmouth County or that the defendant had a prior conviction. Thirty-five of the forty-seven were excused by the court because they said they could not render an impartial judgment in light of what they knew. Four of the remaining twelve were seated over defendant’s challenges for cause based on their exposure to publicity. Every challenge for cause made by the defendant was denied.
On the fourth day of voir dire, Ellen Pisnoy, a prospective juror, said that prior to the trial court’s instructions to the panel, potential jurors had discussed the fact that defendant was accused of several murders and the role of Mr. Fitzgerald, one of the State’s main witnesses. Fifty jurors had been questioned prior to this revelation but none had mentioned discussions among potential jurors. The trial court’s attempt to identify the jurors involved in these discussions consisted only of the same random questioning of prospective jurors on voir dire and general questioning of each juror about what was said, and by whom, among the waiting jurors. The fifty-fourth prospective juror, Ms. H., confirmed during voir dire that even after the prospective jurors were seated, jurors were comparing recollections of newspaper accounts about how the defendant lured young women to go with him, how he had murdered them, and how he had been turned in by his friend.
Three potential jurors, Ms. C., Ms. M., and Ms. E., revealed that they had given other prospective jurors details of defendant’s other alleged crimes. Ms. C. was specially called for questioning immediately after Ms. H. identified her, but Ms. M. and Ms. E. were called as their numbers were randomly drawn from the box. These jurors were asked to identify those to whom they spoke, but the court’s questioning did not reveal all jurors who were thus exposed to the extra-judicial publicity.
In all, nine persons who were exposed to significant pretrial publicity were seated with some members of the final jury before they were excused peremptorily by the defendant or State. That publicity was discussed extensively among prospective jurors, not all of whom were identified. One juror, Ms. H., who knew nothing of the defendant before being called for jury duty but learned about several murders of young girls in courthouse discussions, served on defendant’s jury. Before the last juror was seated, defense counsel exhausted all twenty peremptory challenges.
B.
The primary issue generated by the extensive adverse pretrial publicity is whether this publicity was such that it jeopardized defendant’s constitutional right to trial by a fair and impartial jury. In dealing with this kind of issue in the context of a capital murder prosecution, we have stressed the need, under our State Constitution, for a strict standard that would be fully protective of a defendant’s significant jury rights in light of the importance of the interest at stake. State v. Williams, 93 N.J. 39 (1983).
The majority asserts that our review in this case is circumscribed because defendant, on this appeal, makes no complaint about the voir dire or about the trial court’s rulings on his challenges for cause, and because defense counsel failed to renew his motion for change of venue at the conclusion of the voir dire. I would not find any bar to our consideration of this important issue because defendant may not have made a clear or continuing objection to the trial court’s rulings. After all, “a life is at stake” and we will not pause “in the interest of justice to invoke the plain error rule ... and to reverse where the trial errors were impregnated with the likelihood of having harmed the substantial rights of the defendant.” State v. Mount, 30 N.J. 195, 213 (1959).
The Supreme Court has recognized that the denial of the right to a fair trial by an impartial jury can involve two kinds of cases. One consists of situations in which the defendant must demonstrate actual prejudice in the jury. See, e.g., Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952). The other involves cases in which the community or trial atmosphere is so corrupted by detrimental publicity that prejudice is inferred. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L.Ed.2d 424 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).
Our own test does not require a showing of actual prejudicial taint. This test is reflected in State v. Williams, supra, 93 N.J. 39, in which we ruled that the publicity must be such as to create the “realistic likelihood” that the defendant cannot obtain a fair trial before impartial jurors. The Court in Williams considered the right of the press to attend the pretrial bail and probable cause hearing of the defendants charged with capital murder, as against the defendants’ rights to a fair trial and impartial jury. The issue posed was whether the adverse publicity that would result from press access to such pretrial proceedings would irreparably impair the defendants’ right to be tried by an impartial jury. We ruled that the standard for this determination is whether “the trial court is clearly satisfied that there is a realistic likelihood that the defendant’s right to an impartial jury will be threatened by adverse publicity emanating from an open pretrial proceeding.” Id. at 63.
In Williams, the Court was not required to determine the actual effect of adverse pretrial publicity. It was the potential or anticipated prejudice from adverse publicity—that would result from press coverage of pretrial proceedings—that was the focus of the Court’s determination. In State v. Bey, 96 N.J. 625 (1984), a capital murder prosecution, the Court concluded that there was sufficient adverse pretrial publicity to jeopardize defendant’s constitutional right to a fair and impartial jury. We ruled that the trial court erred in not conducting a hearing to determine, under the Williams standard, whether there was a “realistic likelihood” of prejudice from this publicity that would require a change of venue or other extraordinary corrective measures.
Courts have considered several factors in determining whether the prejudicial effects of pretrial publicity are sufficient to undermine the right to a fair jury trial. These are: (1) the nature and extent of publicity—whether factual, inflammatory or referring to matters which are prejudicial and inadmissible at trial; (2) the length of time between the dissemination of the publicity and the trial; (3) the care exercised and the difficulty encountered in selecting a jury; (4) the prospective and final jurors’ familiarity with prejudicial, inadmissible information; (5) the resultant effect on the prospective and final jurors’ ability to deliberate impartially; (6) the defendant’s use of peremptory challenges to correct for publicity; (7) the prosecution’s responsibility for the publicity; (8) the nature of the crime; (9) the population from which the venire is drawn; (10) the efficacy of a change of venue; and (11) precautionary or curative measures taken by the trial court to alleviate the effects of publicity. See Annotation, Pretrial Publicity in Criminal Cases As Ground For Change of Venue, 33 A.L.R.3d 17, 33, 38-78 (1970) (Supp. 1986) (collecting cases); Ranney, Remedies for Prejudicial Publicity: A Brief Review, 21 Villa.L.Rev. 819, 829, 32 (1976); Note, Community Hostility and the Right to An Impartial Jury, 60 Colum.L.Rev. 349, 361-65 (1960). Such factors are illustrative of the circumstances that are relevant in determining whether the prejudicial effects of pretrial and trial publicity in a given case create the “realistic likelihood” that defendant could not otherwise obtain a trial by a fair and impartial jury. Consideration of the undisputed facts in this case, informed by such factors, leads to the conclusion that defendant’s constitutional jury-trial right was undermined by this publicity.
As recounted, there was extensive prejudicial publicity about the defendant in newspapers distributed in Monmouth County during the spring and summer of 1983. When trial commenced in November, the publicity resumed and continued thereafter on a daily basis, while the jury remained unsequestered. The publicity was inflammatory and sensational rather than factual and objective. Particular prejudice inhered in newspaper articles that discussed several murders, in addition to the one for which defendant was being tried, and contained highly damaging and inadmissible information, such as the names, ages and locations of bodies of other murder victims. Further, the publicity was widespread and extensive; the same population that was exposed to the pretrial publicity constituted the source from which prospective jurors were drawn.
This publicity was fueled by the prosecutor’s widely publicized personal comments regarding critical matters bearing not only on criminal guilt but on culpability as well; such as defendant’s absence of motive. As a result, the crime charged appeared especially shocking and the impact upon the public highly sensational. The actions of the prosecutor were intentional, not inadvertent, and surpassed any professional needs arising from the investigation and prosecution of the case itself. Indeed, this conduct violated the New Jersey Rules of Professional Conduct, 3.6. In Matter of Rachmiel, 90 N.J. 646 (1982), this Court construed the predecessor of this professional rule, Disciplinary Rule 7-107(B)(6), and concluded that it “prohibits an attorney involved in an ongoing criminal trial from making extra-judicial comments concerning the guilt or innocence of a criminal defendant or the quality of the evidence or merits of the case when such remarks are reasonably likely to interfere with a fair trial.” Id. at 657. In my view, the comments about defendant’s implication in other murders and his lack of motive for the murders and the prosecutor’s production of physical evidence at the press conference cannot be condoned in light of this ethics stricture. See In re Hinds, 90 N.J. 604, 622-23 (1982).
Although this case is not an ethics proceeding, it is nonetheless clear that the prosecutor’s conduct was not professionally justifiable or defensible; it was undoubtedly an added factor that contributed to the violation of defendant’s constitutional rights. This form of prosecutorial misconduct must be weighed heavily against the State in assessing defendant’s claim to a denial of constitutional rights and, more important, in determining what relief defendant is entitled to receive in order to repair the constitutional damage. See State v. Sugar, 84 N.J. 1 (1980).
The trial court did take some precautionary or curative measures, such as its imposition of a “gag order” and a short continuance of the trial. That the effect of the publicity was not overcome by these steps is evidenced by the news articles appearing the day before trial, repeating damaging and inadmissible information, including the prosecutor’s inflammatory comments. In addition, as evidenced by the voir dire examination, see supra at 75-81, the publicity had a tangible impact on prospective and selected jurors.
The extent and nature of the publicity, as measured by the relevant factors, created the realistic likelihood that a fair and impartial jury could not be obtained. Absent effective corrective measures, defendánt should have obtained a change of venue. The question, therefore, is whether the trial court’s voir dire examination served to neutralize the effects of the prejudicial publicity and secure an impartial jury.
C.
Courts have considerable flexibility in coping with the prejudicial effects of adverse publicity. The trial court may order an adjournment of the trial, a change of venue, or the empaneling of a foreign jury; they may also engage in a particularly thorough voir dire examination of prospective jurors. See State v. Williams, supra, 93 N.J. 39; State v. Allen, 73 N.J. 132, 161 (1977) (Pashman, J., concurring); State v. Trantino, 45 N.J. 37, 39-40 (1965). In State v. Williams, supra, 93 N.J. at 60-63, 67-68 n. 13, the premise of the discussion regarding juror taint and change of venue motions was that in cases preceded by extensive publicity, an “exhaustive and searching voir dire” is the linchpin necessary to empaneling impartial jurors, particularly where pretrial motions to change venue and sequester the jury have been denied. Id. at 68-69, 71 n. 18. In this case, the trial court refused to sequester the jury or to order a change of venue, or to require a foreign jury. Moreover, its short continuance of the trial and its imposition of a gag order after several months of adverse publicity were ineffective and did not prevent the resumption of adverse publicity. We turn then to the question whether the voir dire examination was itself sufficient to overcome the severe prejudice generated by the adverse pretrial and trial publicity.
Our own appellate role must be understood. This Court has recognized the need for the independent and scrupulous evaluation of the voir dire examination by the appellate court to resolve the claims raised by adverse pretrial publicity. See State v. Van Duyne, 43 N.J. 369, 386 (1964). In Sheppard v. Maxwell, supra, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, the Supreme Court has also considered the standard of appellate review where defendant complains that the community from which the jury was drawn was so tainted by publicity that due process and the sixth amendment were transgressed. The reviewing court must, in that situation, make an independent evaluation of the facts and circumstances regarding publicity and of the jury voir dire examination to determine whether the publicity was so pervasive and prejudicial or the jurors’ professions of impartiality sufficiently doubtful that a new trial is required.
A corollary of this Court’s ruling in State v. Williams, supra, is that if a defendant makes a showing of a realistic likelihood of prejudice from adverse publicity, he should be entitled to a change of venue. For that reason, we also considered in Williams the burden of proof necessary in order to secure a change of venue. In adopting the new standard of the “realistic likelihood” of jury taint, we specifically overruled the former test for a change of venue announced in State v. Wise, 19 N.J. 59, 73 (1955). That was “whether an impartial jury could be obtained from among the citizens of the county or whether they are so aroused that they would not be qualified to sit as a jury to try the case.” The operative standard now governing judicial review of a trial court determination that a defendant’s right to an impartial jury was not violated and a change of venue was not required is the substantive test of Williams and the procedural test of Van Duyne. Our standard in this kind of case is the Van Duyne requirement of an independent appellate evaluation of the record, applying the Williams “realistic likelihood” test for determining whether the jury right has been violated and a change of venue is required.
In my opinion, an independent evaluation of the facts relating to the nature and extent of the adverse pretrial publicity makes it abundantly clear that there was a realistic likelihood that defendant could not receive a trial by a fair and impartial jury, and that, in the face of this adverse publicity, the voir dire efforts of the trial court were ineffective to neutralize the effects of the resultant prejudice. Thus, it is reversible error for the trial court not to have granted a change of venue.
In denying defendant’s motion for a change of venue, the trial court obviously believed that the voir dire could be an effective antidote to the prejudicial publicity. The court relied simply on its own experience that every prospective juror would not have read every article or would forget what he or she read by the time the trial began. However, the prejudicial impact of adverse publicity on the jury became immediately evident. Both prospective and final jurors had become familiar with the case through the publicity, learning of both prejudicial and inadmissible information. As noted, more than half of the prospective jurors questioned about publicity recalled specific prejudicial, inadmissible information concerning defendant. The overwhelming majority of these jurors volunteered that they could not render an impartial decision. One juror who was finally seated knew that the defendant was accused of murdering several girls but nevertheless professed to be impartial.
Defendant argued at trial that the scope of the voir dire was not sufficiently exhaustive to reveal prospective jurors who knew and might be influenced by prejudicial and inadmissible information; as a result, defendant was unable to develop facts to demonstrate further the realistic likelihood of jury taint or to provide a basis on which to renew his change-of-venue motion after the voir dire examination or even intelligently to exercise challenges for cause during voir dire.
I find merit in this claim. The questioning of prospective jurors about publicity was, for the most part, too general to have elicited any acknowledgement from jurors that they knew of defendant’s prior conviction or his connection to five murders. Initially, the court’s questions proceeded directly from the juror’s exposure to publicity to whether the juror could render an impartial verdict, without any inquiry as to what the juror had read or heard about the case. Later, as a result of defense objections, and throughout the rest of the voir dire, the court asked each prospective juror what details he or she recalled from the publicity in connection with defendant’s name and whether he or she recalled any background information about the defendant. However, if a juror did not mention defendant’s prior conviction or link to other murders, the trial court simply went on to ask the juror only whether he or she would be impartial. There is a strong basis for finding this examination to be seriously deficient.
Related to the inadequacy of the voir dire to elicit traces of bias on the part of jurors is the failure of the trial court to excuse several jurors for cause. Defendant challenged six prospective jurors for cause on the grounds that their exposure to publicity relating to inadmissible information rendered their impartial deliberation highly improbable, if not impossible, regardless of their own belief in their impartiality. Four of these jurors mentioned information that indicated they knew defendant was accused of several other murders or that he had a prior murder conviction. Five other prospective jurors, whose statements indicated they knew the defendant was linked to several murders or that he had a prior murder conviction, were seated without the defendant challenging them for cause. Two were peremptorily excused by the defendant, two were excused by the state and one served on defendant’s jury. The court questioned each of these nine prospective jurors and each juror professed that he or she could put aside the extraneous information and deliberate impartially.* *******
The general test for excusing a prospective juror for cause is whether there is a strong likelihood or probability, grounded in human experience, that such an individual will be, or will appear to be, prejudiced. The criterion is not whether the prospective juror’s experience will necessarily or inevitably be prejudicial. See State v. Jackson, 43 N.J. 148, 157-58 (1964); Wright v. Bernstein, 23 N.J. 284, 295 (1957) (test is not whether irregular matter actually influenced the result, but whether it had the capacity for doing so).
The decision whether to excuse a prospective juror for cause lies within the discretion of the trial court because that determination is heavily dependent on a subjective evaluation of the juror’s credibility. See State v. Singletary, 80 N.J. 55 (1979). Nevertheless, this Court can decide on appeal that particular circumstances present such a strong likelihood of prejudice that, as a matter of law, prospective jurors should have been excused. See State v. Van Duyne, supra, 43 N.J. at 386 (appellate court required to independently determine whether publicity so pervasive and prejudicial, or juror’s protestation of impartiality so doubtful, that new trial is required); State v. Deatore, 70 N.J. 100, 105-06 (1976) (where juror had close relationship with victim, juror should have been excused); State v. Jackson, supra, 43 N.J. 148 (juror who was friend of key state witness should have been excused); Wright v. Bernstein, supra, 23 N.J. 284 (mistrial should have been declared in accident case in which juror’s mother was plaintiff in unrelated personal injury case heard in court that day); Panko v. Flintkote Co., 7 N.J. 55 (1951) (new trial required where juror learned amount of defendant’s liability insurance during trial). A prospective juror’s professions of impartiality, good faith, and fair actions are not necessarily controlling. See Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 756 (1961) (jurors who thought defendant was guilty before trial should be excused for cause even though they said they would deliberate impartially).
It cannot be overemphasized that the substantive and procedural protections necessary to assure the vindication of a defendant’s constitutional rights—under the State Constitution, particularly as enhanced by considerations of fundamental fairness—must be maximized in a prosecution for capital murder. See State v. Ramseur, supra, 106 N.J. at 369-382 (dissenting opinion). With respect to the cluster of rights surrounding the need for jury fairness, capital cases require a higher standard than that applied in ordinary cases or by the trial court here. See State v. Williams, supra, 93 N.J. at 61 (requirement of fairness and jury impartiality is heightened in eases in which the defendant faces death) (citing Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392, 403 (1980)); State v. Jackson, supra, 43 N.J. at 156; State v. Mount, supra, 30 N.J. at 213; State v. Wynn, 21 N.J. 264, 271 (1956). With respect to whether, in capital cases involving prejudicial publicity, jurors should reasonably be excused for cause, the Court in Williams, supra, 93 N.J. at 68-68 stated:
The [trial] court could consider whether there should be a greater willingness to resolve doubts in favor of the defendant in excusing jurors for cause. Particularly in capital cases, the trial judge should exercise extraordinary care in the voir dire of potential jurors and could excuse for cause any juror who has been exposed to sensational prejudicial publicity, especially where such exposure is repeated and involves patently inadmissible evidence. (Footnote omitted.)
We added in Williams, supra, 93 N.J. at 61, that jurors who have formed an opinion as to guilt or innocence must be excused, and that “only if it is demonstrated that ‘the juror can lay aside his impression or opinion and render a verdict based on the evidence’ presented in court will extraneous exposure to the facts of the case not be grounds for automatic disqualification.” Id. (quoting State v. Sugar, supra, 84 N.J. at 23, and Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)).
In my opinion, error was inherent in the trial court’s refusal to excuse these nine jurors for cause. As already recounted, Ms. H., a juror, knew defendant was implicated in other murders. In addition, the other eight prospective jurors—who shared Ms. H.’s knowledge—sat with some of the actual jurors in the jury room for varying periods of time before being excused. Jurors knew about the defendant’s prior murder conviction and that he was connected with or accused of several recent murders other than that for which he was being tried. This strongly suggests that inadmissible information may have come to the attention of the defendant’s jury, serving to consciously or unconsciously influence the prospective jurors toward either the guilty verdict, the death penalty or both. Under these circumstances, there is an extremely strong likelihood, grounded in human experience, that such jurors would be prejudiced despite their sincere belief in their own impartiality. See Irvin v. Dowd, supra, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.
As a result of the trial court’s erroneous failure to excuse jurors for cause, defendant was required to use peremptory challenges to remove jurors. All of defendant’s peremptory challenges were exhausted. By forcing defendant to use his peremptory challenges to excise the effects of prejudicial publicity from the jury, the trial court denied defendant his full complement of peremptory challenges. It is practically axiomatic that the denial of a peremptory challenge is the denial of a substantive right. See State v. Singletary, supra, 80 N.J. at 62-63. Moreover, in a capital murder prosecution, the loss or diminution of this right is more significant than in an ordinary criminal trial. The Court may suffer the reduced right in an ordinary case, e.g., State v. Singletary, supra; it should not countenance it when a defendant’s life is at stake.
Finally, as related to the deficiencies of the voir dire, defendant contends that the trial court improperly denied his requests to hear challenges for cause, due to exposure to pretrial publicity, out of the hearing of the prospective juror who was being challenged. Defendant asserts that the act of openly challenging a juror’s claim of impartiality prejudiced the juror against the defendant.
I do not consider this a picayune or captious complaint. When the seventh prospective juror, Mr. C., was questioned, he said he would be impartial although he had read prejudicial news stories. The court refused to ask defense counsel’s follow-up questions or to allow him to challenge the juror at side-bar. Defense counsel then challenged the juror for cause, in his presence, which challenge was denied. Two more jurors, the fourteenth and fifteenth, Mr. A. and Ms. H., posed similar problems. Defense counsel requested that he be allowed to state his reasons for challenge on the record at side bar, out of the hearing or presence of the jurors. The requests were denied, as were the subsequent challenges for cause. Defense counsel then moved for a mistrial based on the alleged improper ruling on the cause challenge, as well as the asserted prejudicial effect of challenges made before the jurors. The trial court denied the motion for a mistrial, and defense counsel subsequently excused peremptorily each of these jurors.
Concededly, to the extent the trial court’s rulings were discretionary, the defendant must demonstrate that the court was mistaken in the exercise of this discretion. See State v. Smith, 55 N.J. 476 (1970). Here, it is clear that there was an abuse of discretion. The defendant took the position consistently in pretrial motions and throughout the voir dire that there were many prospective jurors who knew of defendant’s link to at least four other murders. With respect to the examination of three jurors, defense counsel was required to express, in their presence, his reasons for believing they could not be impartial even though they obviously believed that they could be. In effect, defense counsel was forced to argue before these jurors that he did not find them credible and that they should not be believed. Moreover, defense counsel was curtailed in stating his objections and compelled to present his position elliptically in order not to offend the jurors and to avoid reinforcing what the jurors already suspected or knew about the murders. Finally, defendant had to be guarded in his remarks in order to minimize the risk that they would be publicized in the press.
It is not illogical or imaginary to conclude that the psychological conditioning resulting from a challenge may act subconsciously to impede a juror’s ability to reach a verdict solely upon the evidence before him. See State v. Simon, 79 N.J. 191, 199-202 (1979). Here, the trial court’s decision to hear cause challenges in open court in the presence of the challenged juror adds to this negative influence. The evidence of mistake is confirmed by the fact that the State agreed with defendant that such challenges for cause should be heard out of the presence of jurors and the court eventually relented.
In my view defendant’s challenges for cause were erroneously denied; the incremental prejudice attributable to juror challenges for cause in the presence of the challenged juror merely adds to the reasons for reversal attributable to the inadequacy of the voir dire examination.
D.
In sum, it is abundantly clear that there was massive detrimental pretrial and trial publicity that was so prejudicial it created the realistic likelihood that defendant could not obtain a trial by a fair and impartial jury. The violation of defendant’s constitutional rights was more egregious because the State, through the prosecutor, intentionally encouraged and added to the pretrial publicity. This not only underscores the violation of the constitutional right, but also influences the nature of the relief to which defendant is entitled. Defendant was entitled under the circumstances to a change of venue.
Since the trial court did not order a change of venue, the violation of defendant’s constitutional right to a fair and impartial jury went unrepaired. The procedures leading to the empaneling of the jury were wholly ineffective to overcome the impact of prejudicial publicity or to surmount the realistic likelihood that a jury could not fairly and impartially try the defendant. It further appears that defendant was forced to exercise all peremptory challenges to excuse jurors who should have been removed by the court for cause and that this was a denial of defendant’s full opportunity to secure a fair and impartial jury. The risk of jury bias was further increased by instances in which defense counsel was improperly compelled to argue grounds for the excusal for cause in the presence of jurors.
For these reasons, I conclude that defendant did not obtain a trial before a fair and impartial jury. His conviction of murder and death sentence must be reversed.
II.
The Court reverses the defendant’s death sentence. It determines that there were several errors that seriously prejudiced the sentencing proceedings which mandate a reversal of the death penalty. It nevertheless concludes that defendant may be retried as to sentence and that he again may be exposed to the imposition of the death penalty. The Court, in my opinion, neglects to apply constitutional principles of double jeopardy and precepts of fundamental fairness, which under the circumstances presented, bar a retrial for purposes of seeking the imposition of the death penalty.
At the penalty phase of the trial, the prosecutor sought to have the jury consider whether two aggravating factors had been established by the evidence. One aggravating factor was defendant’s prior conviction for murder, section c(4)(a); the other was that the murder was outrageously or wantonly vile, horrible or inhuman, section c(4)(e). With respect to the aggravating factor under c(4)(a), the prosecutor submitted in evidence a certified copy of defendant’s 1959 murder conviction. The prosecutor offered no additional evidence to establish the aggravating factor under c(4)(c), relying upon the evidence that had been adduced at the guilt-phase of the trial. In support of aggravating factor c(4)(c), the prosecutor in summation argued that four bullet wounds to the head constituted an aggravated battery.
At the sentencing phase of the trial, the defense focused entirely on establishing mitigating factors. Defendant presented a forensic psychiatrist who had made a complete evaluation and diagnosis of defendant during three visits in October and November, 1983. He testified that defendant suffered from a severe personality disorder known as anti-social personality with paranoid traits. He stated that as a result of this disorder, defendant lacked the capacity to appreciate the wrongfulness of his acts or to conform his conduct to the requirements of the law. On summation, the defense counsel stressed defendant’s mental illness as well as his personal history.
In its charge to the jury, the trial court explained that aggravating factors must be found beyond a reasonable doubt, but that the jury had only to be “satisfied” that a mitigating factor existed. The court further instructed the jury, over the prosecutor’s objection, that all of the mitigating factors had to be weighed against each aggravating factor proved. However, the court did not instruct the jurors that in order for the death penalty to be imposed' they must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. As the majority points out, the trial court’s charge with respect to the burden of proof and the weighing of aggravating and mitigating factors was in error, requiring a reversal of defendant’s death sentence. Ante at 53-67.
The prosecutor, as noted, took the position that defendant was guilty of capital murder deserving the death penalty because he committed an aggravated battery in the course of murdering his victim, thereby satisfying c(4)(c). The trial court instructed the jury that to find this aggravating factor, the jury must conclude that the murder “involved either torture or conduct indicating a depraved mind or ... was so savagely outrageously cruel and violent that the adjectives wantonly, vile or horrible or inhuman are justified.” In other words, the trial court simply reiterated the language of the statute, without further definition or explanation. Moreover, the court did not explain what constitutes aggravated battery.
After deliberating for an hour, the jury requested an additional explanation of aggravating factor c(4)(c). The court replied that in order to satisfy c(4)(c), only one of the three conditions—torture, depravity of mind, or an aggravated battery—had to exist. After several more hours, the jury returned a verdict. The jury found that both of the charged aggravating factors existed beyond a reasonable doubt. As to mitigating factors, it found that the defendant was not under the influence of extreme mental or emotional disturbance, but that his capacity to appreciate the wrongfulness of his act or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect. In addition, the jury found that another factor or factors relating to the defendant’s character or record or to the circumstances of the offense also constituted a mitigating factor. Finally, the jury found that neither aggravating factor was outweighed by the combination of mitigating factors. Consistent with the trial court’s instructions, this verdict led to a sentence of death.
The theory of the prosecution in this case was that the aggravating factor of c(4)(c) was satisfied because the murder was accompanied by an aggravated battery. This Court now rules that “aggravated battery” means serious physical harm or severe pain to the victim by means of an act that precedes death and does not serve to cause death instantaneously. See State v. Ramseur, supra, 106 N.J. at 207-209. The Court concludes that the evidence of an aggravated battery was insufficient. I agree.
Contrary to the State’s contention, under the facts of the present case, evidence of four bullet wounds to the head is insufficient to establish an aggravated battery for purposes of determining capital murder. In Patrick v. Georgia, 449 U.S. 988, 101 S.Ct. 522, 66 L.Ed.2d 285 (1980), the Supreme Court vacated the defendant’s death sentence where the defendant struck the victim six times in the head, but it was impossible to tell which blow killed him; the Court ruled that there was insufficient evidence of battery. The majority properly holds that there was insufficient evidence of an aggravated battery for the jury to conclude that the aggravating factor of c(4)(c) was established. Ante at 50.
Nevertheless, the Court rules that there was sufficient evidence to show that the defendant committed this murder with “depravity of mind,” and that this would satisfy aggravating factor c(4)(c). In the companion case of State v. Ramseur, supra, 106 N.J. 128, the majority explains that “depravity of mind” can consist of several states of mind or mental conditions, and can be found without any evidence of torture or an aggravated battery. Id. at 208-210. In this case, the Court would define depravity of mind as existing when “the only purpose defendant had in killing the victim was to enjoy the act of killing itself and that he had no other reason for killing Ms. Olesiewicz other than wanting to kill.” Ante at 50. For the reasons expressed in my dissenting opinion in Ramseur, I believe that the Court’s definition of “depravity of mind” is utterly vague and incapable of reliable and consistent application. Ramseur, supra, 106 N.J. at 400-402 (Handler, J., dissenting). Be this as it may, under the circumstances of this case, I am satisfied that it would violate double jeopardy and fundamental fairness to retry defendant for the purpose of seeking to impose the death penalty.
The State’s theory was that the murder was committed under circumstances that demonstrated “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim,” constituting the aggravating factor c(4)(c). The prosecutor relied primarily if not exclusively upon evidence of “an aggravated battery” to establish that the crime was “outrageously or wantonly vile, horrible or inhuman.” The majority sets aside the jury verdict finding that the murder was outrageously or wantonly vile, horrible or inhuman because it was based upon insufficient evidence of aggravated battery. Nevertheless, the Court authorizes a retrial of defendant to enable the State once again to try to establish that the homicide was a c(4)(c) capital murder.
The State should not be permitted to retry the defendant for a crime as to which we have ruled the evidence at the first trial was insufficient. Double jeopardy principles clearly prohibit the State from retrying a defendant for the same crimes based upon evidence that was itself insufficient. This is firmly established as a matter of federal double jeopardy doctrine. See, e.g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We have similarly recognized the bar of double jeopardy against successive prosecutions for essentially the same crime. State v. Tropea, 78 N.J. 309 (1978); State v. Lynch, 79 N.J. 327 (1979). Double jeopardy as a matter of federal constitutional law also has been held to apply to the specific context of the sentencing phase of a capital murder trial. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).
The Court, however, determines that there was other evidence to establish c(4)(c), namely, evidence constituting “depravity of mind.” But because this evidence was improperly presented to the jury to support the aggravating factor c(4)(c), the Court sets aside the jury’s finding of the aggravating factor. The Court concludes that a retrial to establish a c(4)(c) murder relying on this evidence would not run afoul of double jeopardy. I disagree.
To allow the State in this case another opportunity to establish defendant’s homicide as c(4)(c) capital murder would be to retry defendant for the same crime that was the object of the first prosecution. I think it is indisputable that under our capital murder-death penalty statute the aggravating factors are essential elements of the crime of capital murder. Unless a murder is shown to have been committed under circumstances constituting an “aggravating factor” under the death penalty statute, it will not constitute “capital murder” for which the death penalty may be imposed. As I pointed out in my dissenting opinion in Ramseur: “The aggravating factors act as specifications of the class [of capital murder]; they form, in effect, elements of the offense defendant must have committed to come within the class.” Ramseur, supra, 106 N.J. at 393 (Handler, J., dissenting) (emphasis added). The majority itself recognizes that the aggravating factors constitute elements of the offense of capital murder, “that functionally the aggravating factors in the Act are indistinguishable from the elements of a crime.” Ramseur, supra, 106 N.J. at 226 n. 27. See Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976); State v. Silhan, 302 N.C. 223, 275 S.E.2D 450 (1981). “Capital murder” embraces a unique degree or quality of culpability. The level or quality of culpability for capital murder is defined by the “aggravating factors.” Hence, under the Code of Criminal Justice aggravating factors are “element[s] of an offense”, defined by the Code to mean the “conduct” or “attendant circumstances” “as [establishes the required kind of culpability.” N.J.S.A. 2C:l-14h. See State v. Goodman, 92 N.J. 43 (1983).
Under well-settled principles of double jeopardy, the subsequent prosecution for an offense that is based upon the same elements involved in an earlier prosecution is barred. See State v. Dively, 92 N.J. 573 (1983). Here there is no material difference as to the elements of the crime that will be retried—it is capital murder as defined by the aggravating factor of c(4)(c).
The State should not succeed in its argument that on retrial it seeks to rely on evidence of “depravity of mind” rather than of “aggravated battery” to establish c(4)(c). That cannot make a difference in this case. To the extent the evidence earlier relied on was found to be insufficient to support an aggravating factor that would elevate murder to capital murder, the result must be deemed to have been an acquittal of the death penalty, surely barring a retrial to reestablish that aggravating factor. See Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270. With respect to the contention that the State will rely on other—sufficient—evidence on a retrial, the answer to this assertion is that the State still seeks to retry defendant for the same crime, namely, a e(4)(c) murder. Double jeopardy applies here because it applies to bar a successive prosecution of either the same crime and or a crime that has the same elements of the earlier offense. See State v. Dively, supra, 92 N.J. 573. It may be that the evidence to prove that a murder is “vile, horrible or inhuman” may vary. It can consist of proof of torture, or depravity of mind, or aggravated battery. Nevertheless, the crime itself is not different depending on differences in evidence; in other words, c(4)(c) capital murder has but one essential element or “aggravating factor.” Thus, just as the State may not in any other context retry a defendant for the same crime, the State should not in the context of a capital murder prosecution be given an opportunity to retry defendant for purposes of establishing the same aggravating factor.
I am convinced that the views articulated by Justice Marshall in his dissent in Poland v. Arizona, — U.S. -, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), express the principles of double jeopardy that must apply, under our State Constitution, in a capital murder prosecution in these circumstances. There, as here, aggravating factors function as specifications of the class of capital murder and, in effect, form elements of the offense. The Supreme Court held that a resentencing hearing in a capital case is not barred by double jeopardy when the appellate court rejects the sole aggravating factor found by the sentencer; the Court ruled that the failure of the sentencer to find other alleged aggravating factors is not an “acquittal” of these factors for double jeopardy purposes. In dissent, Justice Marshall stated: “In no other circumstance would the Double Jeopardy Clause countenance the offer of a second chance to the State and the trial judge to find a better theory upon which to base a conviction.” Id. at-, 106 S.Ct. at 1758, 90 L.Ed.2d at 136 (Marshall, J., dissenting). We ourselves would not countenance a retrial in such circumstances. State v. Tropea, supra; State v. Lynch, supra.
Under these circumstances, principles of double jeopardy and fundamental fairness prohibit the State from trying defendant again to attempt to establish that the murder is a c(4)(c) capital offense. For reasons similar to those I expressed in State v. Ramseur, I would bar a retrial seeking the death sentence and enter a judgment of life imprisonment.
III.
I have already expressed at length my reasons for concluding that the capital murder-death penalty statute is unconstitutional. See State v. Ramseur, supra, 106 N.J. at 345-408 (Handler, J., dissenting). These reasons, in my estimation, fully apply to this prosecution and would warrant a reversal of the conviction and death sentence.
In this case additional compelling reasons call for such reversal. The massive highly prejudicial pretrial and trial publicity, unjustifiably aggravated by the prosecutor’s misconduct in publicizing the case, rendered impossible a trial by a fair and impartial jury in the vicinage. The court failed to take any effective measures to cure the prejudice occasioned by the publicity. Further, because of the errors involved in the presentation of evidence and jury instructions in the sentencing phase of the trial, defendant, on grounds of double jeopardy and fundamental fairness, should not again be retried for purposes of imposing the death penalty.
The significance of this case impels me to make an added observation. Murderers like Richard Biegenwald pose the greatest challenge to the fairness, impartiality and integrity of our judicial system. The terrifying personalities of such murderers, their inscrutable compulsions, their seemingly irrational, random actions take more than their victims; they exact a debilitating toll on all of society, reducing to nothing the most cherished right of life itself. A public perception that our legal system leaves society unprotected against such people, or fails to register society’s outrage at their actions, undermines both respect for the Constitution and, ultimately, belief in the values embodied in the Constitution.
This kind of case puts the judiciary to supreme tests. It exposes judicial attitudes as well as judicial principles. It shows that noble principles are not enough. Principles can be betrayed by a want of conviction. Principles of law serve us only in their application; wrong applications are no better than unjust principles. Here the principles that we summon are those that recognize the importance of individual life and the need for scrupulous protections before a life—any life, including that of an unrepentant murderer—can be taken by the State. One such protection has to do with a fair and impartial jury. The assurance of a fair and impartial jury is not easy to achieve. Vigilance requires that community outrage over a defendant’s crimes not be allowed to infect the jury that will deliberate the defendant’s fate, particularly where life is at stake. We are guided by that principle here. We falter in its application, however, when we allow a defendant to be tried before a jury in which the risk of prejudice is so real. Justice is disserved as much by a failure to follow right principles as by a failure to recognize them.
APPENDIX
There follows excerpts of the voir dire of nine jurors who knew about defendant’s prior conviction or other murders but were accepted by the trial court based on their expressed belief that they could deliberate impartially. The voir dire examination of these jurors is recounted in detail to illustrate the inadequacy of the voir dire in light of the massive adverse pretrial and trial publicity.
(a) Ms. H.
Ms. H. originally stated that she had some knowledge of the case and recognized the defendant’s name in connection with what she read in the Asbury Park Press.
[THE COURT] Q: Do you recall reading anything in the newspapers that you told us about Mr. Biegenwald’s prior background?
[THE JUROR] A: Yes. There was some mention of that.
Q: What you you recall being mentioned?
A: That he had previously been arrested for a crime and also in his childhood he had—I think I may have read that he had been institutionalized as a child or a young person.
The Court then asked Ms. H. seven questions to determine whether she would be affected by what she knew; she maintained that she would not and volunteered that she didn’t believe everything she read in the newspaper and that there were two sides to every Story. At the end of Ms. H.’s voir dire defense counsel asked for additional questions about what else the veniremember recalled.
[THE COURT] Q: If there is anything more you recall about reading about it in the newspapers, tell us.
[THE JUROR]: About this particular case?
MR. DIAMOND: About Mr. Biegenwald.
A: I did hear on the radio some time after the original arrest, the incident on Staten Island I heard on the radio news.
Q: Something on Staten Island?
A: Yes. But that’s all.
Q: In my questions to you I was trying to have you include everything that you have heard having to do with Biegenwald.
A: No. It was really like a second time I heard something pertaining, you know, to him.
Q: What did you hear then?
A: In fact I turned on the tail end of of it, that there was some digging in Staten Island and the name was mentioned, but—
Q: Anything again that may have been mentioned then about Mr. Biegenwald’s background?
A: Not at that time, no.
Q: And the only background that you did hear was that which you read in the newspaper that you have repeated to us already?
A: Yes.
Q: All right. The questions I asked before about affecting your judgment, I certainly mean them to include anything you have ever heard on the radio or read in the newspaper. Did you understand them that way?
A: Yes, I did.
THE COURT: Okay, Mr. Diamond?
MR. DIAMOND: I’d just like to know a little bit more about what she knows as to the digging in Staten Island, your Honor.
THE COURT: I won’t inquire. If you wish to exercise a challenge for cause, I will hear that.
In open court defendant challenged Ms. H. for cause on the ground that she would give consideration to other crimes committed by the defendant based on her statement about the diggings on Staten Island. The trial court summarily denied the challenge. Defendant peremptorily excused Ms. H. two days later.
(b) Mr. F.
Mr. F., Jr. had read articles, although not recently, in the Asbury Park Press about the case.
[THE COURT] Q: What do you remember reading? What sticks out in your mind? There were a lot of things in the paper, but what do you remember?
[THE JUROR] A: Well, the case in Ocean Township was the one that I remember mostly.
Q: What do you remember of it?
A: About the girl being found in the back of the—the fast food place in Ocean Township.
Q: And do you recall any of the names that were mentioned in connection with that in the newspapers?
A: Only the name of the girl, and I think Fitzgerald and the defendant. Q: Do you recall any details about Mr. Biegenwald’s background that you may have read in the papers?
A: No, not too much I don’t think, no. Yes, I recall the fact that he had been convicted and served time for a crime.
The trial court then asked Mr. F. four questions to determine whether what the juror knew from the publicity would have any effect on his deliberations. Mr. F. maintained that he would not be affected. Defense counsel challenged Mr. F. for cause on the grounds that he knew about the defendant’s prior conviction although the defendant was not going to testify and that he knew specific facts of this case from the newspaper. The court said that, in its evaluation, the juror was sincere, that he has thought about it and that that’s the best that can be asked of a human being. Counsel argued that the juror would not ignore that knowledge. Alternatively, defense counsel requested that the court inquire further about the publicity and the nature of prior conviction. The State agreed although it maintained that knowledge of a prior conviction is not grounds for excusing a juror for cause.
BY THE COURT:
Q: Mr. F., we are interested in one area, and that is you said that you have read in the newspapers that Mr. Biegenwald had a prior conviction.
Anything more specific than that in your mind?
A: Only that it was for murder.
Q: Now, you know obviously that’s that and you know it. Do you think that is going to affect your ability to judge him in this charge, which is also a charge of murder?
A: No, I don’t think so.
Q: That’s a very important consideration, you know.
A: (Nodding affirmatively.)
Q: Before I forget, if per chance you are ultimately selected as a juror on this case, there should never be any discussions of that fact by anybody in the jury room.
A: I understand it.
Q: Unless the fact is something that comes out in this courtroom.
A: Yes.
Q: Because otherwise it is just rumor.
A: Um-hum.
Q: You understand?
A: (Nodding affirmatively.)
THE COURT: All right. With all the discussions in mind that we have had on the record, I will not grant the challenge for cause.
Defense counsel peremptorily excused Mr. F. later that day.
(c) Mr. S.
Mr. S. stated that he had read about the case months before in the Daily Register and heard about it on the radio commuting to and from work.
[THE COURT] Q: Okay. From those sources what details do you recall? There is a lot of stuff thrown in the paper. Some stuff you hear on the radio. But what do you remember hearing?
[THE JUROR] A: Well, I remember hearing that they had arrested Mr. Biegenwald and that he was imprisoned and [ ] up in Staten Island there was some type of burial whatever, a burial area and a gentleman who was with him, an accomplice to some degree, a parent or relative, and just that they were— they had apprehended Mr. Biegenwald, and something about—I believe it was his wife, they have her detained, and she was pregnant or something along those lines.
I really didn’t follow it diligently, but [ ] something like that.
Q: Do you recall any details about Mr. Biegenwald’s background that you may have read or heard?
A: No, other than he lived in Asbury Park and—no, I don’t really recall too much of it, sir.
The trial court then asked Mr. S. four questions to determine whether what Mr. S. knew about the defendant would affect his deliberations. The juror maintained that it would have no effect. Defense counsel requested that the court probe the juror about his reference to the defendant’s being imprisoned and about the burial area in Staten Island. Defense counsel also indicated that he challenged the juror for cause, which was denied.
BY THE COURT:
Q: [] In the course of discussing what you had read in the papers or had heard you mentioned that Mr. Biegenwald had been in prison. Had you seen that?
A: No. I meant he was taken to prison.
Q: Taken to prison—
A: When he was apprehended.
Q: I thought that was the context in which you used it. Okay.
In Staten Island you mentioned something about a burial. What do you recall about a burial situation in Staten Island?
A: Ugh, the only thing I recall was that they and found bodies.
Q: Did you see anything on television or was that something you read in the newspaper?
A: I believe it was strictly the newspapers, sir.
Q: And then you also mentioned in connection with that something about accomplice.
What do you recall about that?
A: Well, what it could be considered as an accomplice is someone who—who Mr. Biegenwald was affiliated with.
Q: Someone who helped him out?
A: Someone who helped him out, an accomplice.
Q: That’s what you meant by that?
A: Yes, sir.
Q: And do you recall a name? Do you associate a name with that accomplice?
A: No, sir.
Q: You do not?
A: (Nodding negatively.)
THE COURT: Okay. All right. I will rule that the challenge for cause be denied in connection with Mr. S.____
Defense counsel peremptorily excused Mr. S. the following day.
(d) Ms. Ms. C.
Ms. C. originally stated that she had some knowledge of the case and recognized the defendant’s name and face from the pictures and captions in the Red Bank Register or the Star-Ledger. She also recalled that defendant’s wife had a baby.
[THE COURT] Q: Now, you say you recall little or nothing about what you read. What do you recall, if I were to press you for your memory of details?
[THE JUROR] A: It’s hard to separate from what I recall from reading and what I have heard since I have been here.
Q: Try to do that and then we will ask you what you have heard since you have been here. But try to make the separation first.
A: Oh, if I’m not mistaken there is a young girl in her teens that was murdered. I remember—I recall a picture in the paper. They were digging up a yard and about Diane having the baby. But other than going into the nitty gritty of it, I wasn’t really involved in it.
Q: Do you recall specifically any reference to Mr. Biegenwald’s background?
A: No, I don’t.
Q: Now, you say what you were told and what you heard when you go here. That means after you got here Monday morning. What did you hear?
A: I heard that he had been arrested for it.
Q: For what?
Now, wait a minute. Someone—somebody was shot before. Somebody was murdered before.
Q: What else did you hear, if anything?
A: He was on parole at the time that this happened. You hear so much. So much goes through—
Q: Well, all right. The so much that you heard, did you hear that before the jurors were brought up to this courtroom and I began telling them about the case?
A: No. I think they were talking about it before we were even selected for the case, because someone said this case was coming up.
Q: And that is when the discussion arose?
A: Then everybody of course has input.
Q: A buzz buzz kind of thing?
A: Um-hum.
The trial court then asked Ms. C. two questions to learn whether what she heard in the juror assembly room or what she read in. the newspapers would affect her deliberations. She maintained that it would not, volunteering that she would have to make her own decision.
At the end of Ms. C.’s voir dire, defense counsel requested further questioning about defendant’s prior murder conviction, what she learned from other jurors on the panel, and her statement about the yard being dug up to see if she knew there was more than one body. Except for the last, the court agreed to inquire.
BY THE COURT:
Q: [] You mentioned that when you first came here and people were saying something about the Biegenwald case and started talking about it—
A: Um-hum.
Q: (Continuing) somebody mentioned Mr. Biegenwald had another conviction, or what did they say to you?
A: Well, they had said—I can’t repeat it word for word—that he had been in trouble before.
Q: You said something about parole.
A: And evidently he was on parole when this happened.
Now, I don’t know if these facts are right. I’m just telling you what I heard.
Q: All right. Once you hear something it is there.
A: Um-hum.
Q: Do you think that having heard that, that if you sit as a juror on this case before the case even starts you might have a feeling that maybe he did something as far as this case is concerned, maybe it is so?
A: No. I’d have to hear the facts for myself.
Q: Okay.
A: To make my own opinion up. As I say, I have heard so much. You hear so much. People just are guessing at a lot of things.
Q: So much about this case?
A: About this case or any case or anything?
Q: People do talk.
A: People talk, um-hum.
Q: But you are saying to us whatever it was that you heard you could put aside?
A: I’d want to hear it from someone in authority, someone who I thought knew.
Q: And if you didn’t hear it here in this courtroom you wouldn’t, or would you, allow it to somehow or other intrude on your ultimate decision?
A: No. I’d have to hear it from someone who really knows what they are talking about.
Q: In this courtroom?
A: Um-hum.
Q: Because as far as a juror is concerned, anybody outside this courtroom hasn’t the foggiest idea of what they are talking about.
A: You are right.
Defense counsel asked for further questions because the juror had heard “so much.” The court refused and denied the challenge for cause on the grounds that the juror was not precommitted to any position. The defendant peremptory excused Ms. C. the following day.
(e) Ms. P.
Ms. P. knew from the Asbury Park Press that the defendant was accused of murder.
[THE COURT] Q: Do you recall ever hearing anything on the radio or seeing anything on television about the Biegenwald matter?
[THE JUROR] A: Yes.
Q: What do you recall seeing?
A: Just the Staten Island incident where they discovered whatever it was, you know. And, well, see, I don’t watch the news that much. It was just on one of the channels. It was there and it caught your attention and you keep going and it’s not—
Q: Do you recall any other details from what you have have read or what you may have seen on television other than what you have told us so far?
A: By details you mean, you know—
Q: Specifics as to what happened or what he is supposed to have done, that sort of thing, whatever the newspapers said as you remember it.
A: No, ’cause I don’t even remember how many people it is he is supposed to have—you know, it’s something once and it wore off. I didn’t even think of it again.
Q: Do you as a person accept the proposition that when someone is accused of committing a crime, as far as the law is concerned it is assumed they didn’t do it and that the burden is always on the State to prove that he did do it?
A: Yes.
Q: You accept that?
A: Um-hum.
The court then asked the juror two questions to learn whether her deliberations would be affected; she denied any effect. Neither party challenged Ms. P. for cause. She was peremptorily excused by the State the following day.
(f) Ms. J.
Ms. J. knew about the case from the radio and newspaper but did not connect defendant’s name with it until she got to court.
[THE COURT] Q: Okay. What did you read in the paper and hear on the radio or what do you remember?
[THE JUROR] A: About the happenings.
Q: When you say the happenings, what details do you remember?
A: About various—uh, things he was connected with; them finding the people that were buried.
Q: But you didn’t—you didn’t associate that with the name Biegenwald?
A: No.
Q: Biegenwald meant nothing to you?
A: No.
********
Q: Okay. So that do you remember any of the details of the background of that person from reading the newspapers or hearing it on the radio?
A: I don’t know about the background.
The trial court then asked the juror two questions to learn whether her deliberations would be affected, but she denied the publicity would have any effect. Neither the State nor the defendant challenged the juror for cause, although the court did not specifically ask whether either wished to challenge for cause. In fact, the defendant did not challenge anyone for cause after the 36th juror was accepted. When Judge McGann asked for challenges, each party simply alternated making their peremptory challenges; until that time, every challenge for cause by the defendant had been denied. At side bar, both the State and the defendant requested further questioning about the death penalty and the juror’s statement about “finding bodies,” respectively. The Court cut defense counsel off for “being nonsensical” when he asked for a ruling between a prior juror’s statement about “mass murders,” which prompted further questions and the court’s refusal to ask more questions after this juror mentioned “finding bodies.” Defendant peremptorily excused Ms. J. later that day.
(g) Ms. H.
Ms. H. actually served on the jury. She said knew nothing about the defendant before she appeared for jury duty but learned details from other prospective jurors.
[THE COURT] Q: After you came here Monday morning did any of the jurors before they were assembled and before they sat down, did any of the jurors talk about this case?
[THE JUROR] A: There were a few. I have heard mentioned that name, that [] they heard the trial they were supposed to be picking jurors, whatever. They never—none of them talked to me about [] the trial itself, what had happened or anything. They just mentioned the name and then the only thing I heard was what you had told when we were in the other room. And then of course [ ] that roused up people and—
Q: What I told you when you were in the other room, and I roused up people?
A: Um-hum.
Q: What was that?
A: When you told what the case was about.
‡*******
Then I guess, you know, they started talking about it.
Q: After I told them not to talk about it they talked about it?
A: Yes, yes.
Q: What did they say?
A: Well, they all had different stories. None of them—I don’t think any of them really had—[] had it all straight or anything. Everybody [] was talking about different things. One person heard this. One person heard that. They never—the stories really—never really matched or anything.
Q: And this was in the other courtroom when you were waiting there?
A: Yes.
Q: What did you hear?
A: [ ] One girl was saying how she [ ] was reading about it in the newspaper, whatever, and a couple of us had said [ ] well, we don’t know anything about it [ ] and being that we are not supposed to talk about it[ ] and she said, “Well, I heard this, that, and the other thing,” “about this girl and this girl.” And [ ] it was just—and then it was like—“Well, I’m not to say anything so I won’t say anything.”
Q: Can you identify that person for us?
A: Um—Ruth—I don’t know her last name.
Q: Ruth?
A: Yes.
Q: Okay. And what was she saying that you recall?
A: Um, she said something about how he [ ] how he had killed them. How he had gone about like luring them or [] getting them to go with him or—and, ugh—oh—and about a friend of his or something, [ ] how he went to the police or whatever and told them about what he knew.
Q: Was this Ruth the only one who was talking in that fashion or were others giving little tidbits?
A: There were others, others that knew it, yes.
Q: I’m sure there were others that knew about it. What were they saying about it?
A: Ugh, they were more or less comparing what they read. They were— “Well, I read this newspaper and this newspaper said this,” and, “Well, I read this one. This one said this.” And they were just like comparing what they knew between each other.
Q: Did any of those notes that they were comparing or any of the little information that they were contributing have anything to do with Mr. Biegenwald’s background?
A: No no.
Q: Is there anything that you heard them that gave you a mind set which you feel might affect your ability to judge this case fairly on what you hear in this courtroom?
A: No. Because, um, I very rarely go by what the newspapers will say before a trial. I don’t believe in prejudging people. I don’t—I very seldom pick up a newspaper, because all different newspapers have different stories and it would just—it wouldn’t [] allow you to think clearly if you were to go by what everybody says, because nobody really has the true facts, the true honest facts about the trial or anything.
Q: Let me ask you this: This case that we are trying concerns one incident. Apparently what some of the people were saying there referred to other incidents.
A: Yes.
Q: Do you think the fact that there was reference to other incidents might have a capacity to affect your judgment sitting on this case?
A: No, because you are just dealing with one. The other ones aren’t—don’t have anything to do with this case.
Q: How extensive would you say were these discussions of Ruth or whoever else was comparing notes with Ruth?
A: They—they brought the other things into it.
Q: How long did that last?
A: I guess until—well, that was just the first day when we were sitting by ourselves. After we had found out what the case was about and, um, after a couple of us who hadn’t known about what was going on had [ ] said, “Ruth, you’re not supposed to talk about it,” whatever, I think she got the idea too, [ ] not to talk about it or whatever.
Q: She was the principal big mouth from what you say?
A: Where I was sitting.
Q: All right. But you feel that whatever you heard you would be able to put aside and not allow to affect your judgment if you sit as a juror?
A: That’s right.
Neither party challenged Ms. H. for cause nor peremptorily excused her.
(h) Ms. K.
Ms. K. knew nothing about Mr. Biegenwald until she read the article in the Asbury Park Press on Sunday, November 13, 1983.
[THE COURT] Q: Now, what knowledge did you have of the case, when did you acquire the knowledge and from what source?
[THE JUROR] A: It was Sunday from the Asbury Park Press. Someone called me up and said that they are picking jurors for a murder trial and I laughed because I hadn’t heard about anything. So then my mom made it a point to stick the paper in front of me so I would read the article so that I wouldn’t be considered basically. So I read it briefly, but I didn’t—I always sort of pass over that information in the paper anyway.
Q: Your mother put the paper in front of you.
What do you remember reading in the paper?
A: I read that, um—that Mr. Biegnewald supposedly talked to somebody, in the Asbury Park Press, and then later they found the body of other things that had happened. But of the case at hand, it really didn’t go into that much.
Q: Did it go into at all the background of Mr. Biegenwald?
A: Something that—something about 1958, about he had been in prison at one time.
Q: Do you recall for what?
A: For murder of a District Prosecutor or something like that.
The trial court then asked Ms. K. two questions to learn whether her deliberations would be affected by what she knew. She said no and volunteered that she believed everyone was innocent until proven guilty of the particular crime, and that depended on what was presented. The court then continued his questioning.
Q: All right. Also in the newspaper was there something about other—other things?
A: There were about others, but I didn’t want to read the rest and I didn’t. I sort of stopped reading it.
Q: Other what?
A: There were about other murders that were—that was going to be tried succeeding this jury.
Q: Okay. Then you are aware there are other charges of murder against Mr. Biegenwald?
A: Right.
Q: Do you feel that if you were a juror on this case judging this case, that that information about his background might affect your ability to judge this case?
A: Um, I don’t feel it will, but—I—I guess—nobody knows exactly how they are going to feel when they start hearing testimony.
Q: No one ever does. But what we are asking is an honest self-appraisal.
A: No, I don’t think it is going to affect me.
Q: The fact of Mr. Biegenwald’s prior conviction—I think I covered that a little bit—but if I didn’t—
A: Did that affect me?
Q: Right.
A: No.
Q: You could say, “It is something we will put aside and we will concentrate on what is here,” is that it?
A: Yes.
Q: You think so? You honestly think you can do that?
A: The only reason why I am hesitating at all is just because of—I guess, as you say, the inconvenience of staying here through this and having my boss getting upset with me.
In regards to being a fair and honest juror, I think I could be able to sit through the information that is given at this trial and not—not listen to anything else.
Q: After you came here Monday when the jurors were assembling and getting seated and organized and that sort of thing, did any of the other jurors talk to you about this case or did you overhear any of the other jurors talking about the case?
A: Everyone—I really doubt if anybody—I can’t speak for other people, but everybody was speaking about it.
Q: All right.
A: Speaking about what they heard. Somebody wanted to speak to me today and I said, “Leave me alone. The judge said not to talk about it.”
Q: Okay. That’s helping. But in the assembling process—now we are concentrating back then on Monday.
A: People were speaking about, “Did you see the guard on top of the building?” when we were walking in in the morning.
Q: Right.
A: And then reading—somebody had read the papers the other night.
Q: Do you recall any details that you overheard them discussing?
A: Um, one person had read the article about the first juror saying that they believed a life for a life. Another person had just discussed the processing, coming into the courtroom and out of the courtroom.
Q; I’m looking for any detail about the background of the case, the underlying facts of the case, that sort of thing.
A: Actually nobody really wanted to talk about that part. They were just talking about whether we were going to go through the picking process.
Q: Then remember you were part of a general panel pool available for trials.
As you sat there did anyone talk to you about this case or did you overhear anyone talking about the case? And we are talking not, just, you know, the cases going on in the courthouse, but details about the incident itself.
A: Um, not actually about this case. It was more about—about the other cases, about having people—the proceeding cases that are going to come up about having bodies found in his mother’s lawn or something.
Q: ’ Do you recall whether they were jurors who were just in that general pool or were they maybe persons who had been excused as jurors from here and had gone back?
A: No. It was everybody—I’m sorry. It was the people in the general pool before they had come.
Q: All right. Again is there anything that they told you, all these little tidbits that may have been passed around, whatever they may have been, that you feel would accumulate and add to whatever other information you had and then have the capacity to affect your judgment as a juror?
A: Um, my honest feeling is that for this case, the stuff for this individual case, for what I read and what I heard, there wasn’t any evidence that—I mean, it wasn’t substantial that he was the killer in this case; but it was my feeling that after so many—incidents, it is highly probable he is guilty of one of these crimes.
Q: How about highly probable of being guilty of this crime?
A: From what I read and what I talked about this crime, he talked to somebody and then there was a body. But I saw no connection in between.
Q: All right. As far as a connection is concerned, whether there is or is not, do you feel that you could sit as a juror and listen to all the evidence that is presented in this case and then make that determination, is or is not, based on what you hear in the courtroom and disregarding anything else you may have heard or read.
A: Yeah, I feel so.
Q: It is important to us that you give us that honest feeling. You understand that, right?
A: Yeah.
No one challenged Ms. K. for cause; she was peremptorily excused by the State later that day.
(i) Mr. R.
Mr. R. stated in his jury questionnaire that he, recognized the defendant’s name.
[THE COURT] Q: Now would you tell us what information, what knowledge you had of the case before you got here on Monday?
[THE JUROR] A: Uh, just that the girl was missing from the Boardwalk in Asbury Park and that they had found the body a couple of days later, and about the bodies in Staten Island.
Q: Okay. And Mr. Biegenwald’s name in connection with that?
A: Right.
Q: The Staten Island connection, did that have any connection in your mind with your sister working over in Staten Island?
A: No, sir.
Q: And did you read that in the newspapers, get that information from the newspaper or from television or from a combination?
A: A combination.
Q: What papers would you have read do you think?
A: It would be the Star Ledger.
Q: And then maybe television, too?
A: Right.
Q: Okay. The fact that you mentioned, quote, bodies in Staten Island—we are dealing with one case—do you think that the plural, the bodies that you mentioned might affect’ your judgment sitting on this case?
A: No, sir.
The trial court then asked Mr. R. five questions to learn whether he could be fair and impartial despite what he had heard or knew about the defendant. Mr. R. said that “I think so” twice, and twice said “no” when asked if his judgment would be affected. Then questioning continued.
Q: Once you got here as a juror and all the jurors were coming together in the assembly room downstairs and before you were kind of organized into groups, did any of those jurors talk with you about this case or did you talk with any other jurors about this case?
A: There has been mention of it.
Q: All right. Did people mention it directly to you or did you overhear that, or both?
A: Both.
Q: Okay. What was mentioned to you?
A: Just basically that the case was being held here.
Q: Okay. What did you mentioned to anybody else?
A: Just, you know, basically what I knew.
Q: Did you exchange that information that you just told us about with other jurors?
A: Oh, yes.
Q: Did you say like, “Oh, this case has to do with a girl disappearing from the Boardwalk in Asbury Park”?
A: Yes.
Q: “And bodies in Staten Island”?
A: No.
Q: You didn’t mention that?
A: No. It never came up.
Q: Do you recall any information regarding Mr. Biegenwald’s background? A: Yes.
Q: What do you recall about that?
A: That he had been in prison prior.
Q: For what?
A: For murder.
Q: Did you read that in the newspapers?
A: Yes.
Q: You didn’t get that information here?
A:
Q: Do you think that fact might stick in the back of your head and affect your judgment if you sit as a juror on this case?
A: No, sir.
Q: Do you think you could really put that aside and again stick with what you hear in this courtroom?
A: Yes, sir.
Q: We are talking about jurors kind of talking among each other. You are talking about what people said to you and what you said to other people.
Did you ever overhear other jurors discussing, talking, whatever you want to say, about the case?
A: Yes, sir. I just mentioned it.
Q: Okay. I thought it was you and another juror.
A: You said overheard or talked.
Q: Overheard, okay. And did you overhear any details being exchanged among the jurors?
A: Uh, no, sir.
Q: Just generally they knew this was a case. There was a murder case or some sort of big case they are here for?
A: Yes.
* * * * * * * *
Q: Then as far as you are concerned, from all that you have heard, whatever input you have, do you feel that if you sat on this case you could give a fair shake, be fair and impartial both to Mr. Biegenwald and to the State in coming to your decision?
A: I think so.
Q: And put aside whatever gossipy stuff or whatever you heard?
A: Yes, sir.
Q: Including those other items that we talked about?
A: Nodding affirmatively.)
********
A: Right.
Q: Do you think that that basic perception about the presumption of innocence as it is called would be affected in your mind by the fact that you know that he had a prior conviction of murder?
A: Can you repeat that?
Q: He is presumed to be innocent when he goes to trial here.
A: Yes, sir.
Q: You understand that.
A: Right.
Q: Now, do you think the perception you have of that principle, the presumption of innocence, would be affected because you know that he had a prior conviction of murder?
A: No, sir.
Q: You could keep that completely separate and apart?
A: Yes, sir.
[THE COURT]: Okay. All right. Then I am satisfied and Mr. R. can then take chair number____
Mr. R. was peremptorily excused by the defendant as soon as he was accepted by the court.
For affirmance —Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN—6.
For reversal —Justice HANDLER-1.
On the first day of jury voir dire, November 14, the trial court denied several of defendant’s motions relating to the empaneling of a jury. These motions sought to sequester the jury during the Thanksgiving week after jury selection but before the trial, and to allow the attorneys to conduct the voir dire. The court also refused to ask whether the juror’s determination of guilt would be affected by defendant’s choice not to testify unless the defendant, who had not yet decided whether to testify, made an election at that time.
In connection with the general voir dire, the defense and prosecution attorneys were required to submit any additional questions they wanted to have the court ask the jury. The court made a few exceptions, however, allowing counsel to ask one or two follow-up questions. Prospective jurors were questioned about their family, education, occupation, prior contacts with law enforcement, whether they had been victims of crime, generally whether they could apply the law even if they disagreed with it, their feelings about capital punishment and ability to vote for the death penalty, whether they would automatically vote for a death penalty (if the juror’s initial answer suggested this), and whether they would consider both the death penalty and life imprisonment as options in the penalty phase. Some prospective jurors were asked whether television cameras in the courtroom would bother them.
Defense counsel thought the court would allow further voir dire after the initial 16 jurors were seated. After the first peremptory challenge was used, another juror was questioned outside the presence of jurors already selected, and so forth. When the first panel from the general jury assembly room was exhausted, a second panel was brought in and instructed by the court not to discuss the case. When this panel was exhausted, the third panel was called but was not similarly instructed; however, by this time only one more juror was needed to complete the jury. Each new panel waited in another unused courtroom that was-apart from the voir dire proceedings and the general jury assembly room.
Jurors who said merely they knew defendant’s name, knew he was accused of the Olesiewicz murder, or other facts about this case were not considered exposed to significant pretrial publicity. Only jurors who expressly mentioned their recollection of several murders or bodies or that defendant had a prior murder conviction were considered exposed to significant pretrial publicity since these matters were inadmissible at trial, except for the prior conviction at the sentencing phase.
After Ms. C. was questioned, the jurors already seated on the jury were brought into the courtroom and asked, in Ms. C.’s presence, if they had had discussions about the case or had spoken to Ms. C.. They denied such discussions. Then the general panel was brought in and Ms. C. identified those to whom she spoke, who, in turn, were questioned on bias. In Ms. M.’s case, she said 10 or 12 jurors were in her discussion group and had "come to conclusions already.” She could name only two of those involved, however. These two were questioned the next day on bias and excused by the court. Ms. E. said she gave details of the crimes to about six potential jurors in the panel, but could recall only two names. One was questioned and excused on other grounds, while the other had been excused on the first day due to family illness. Neither the already-seated jurors nor the balance of the general panel was brought before Ms. M. or Ms. E. so that others involved in the discussions could be identified.
In 1980, Monmouth County’s “over 18’’ population was 359,254. Its total population was 503,175. Its July, 1983 total population was 515,181, a slight increase over the 1980 figures. See N.J. Dept, of Labor, Office of Demographic and Economic Analysis, Official State Estimate, Population Estimates for New Jersey: Revised Estimates, July 1, 1982 and Provisional Estimates, July 1, 1982 and Provisional Estimates, July 1, 1983 (Sept. 1984). Thus, jurors were drawn from an adult (over 18) population of Monmouth County of approximately 360,000 or slightly more, in 1983. The Monmouth County adult readership of the Asbury Park Press, in which the greatest number of prejudicial articles appeared, was 115,276 (daily) and 162,513 (Sunday) in 1982 and slightly higher, adjusted for the population increase, in 1984. Thus, as much as one-half of the population from which the jury pool was drawn was exposed to highly prejudicial information in the Asbury Park Press on the day before trial.
For example, prospective juror, Mr. C., said he read articles in the Asbury Park Press about the defendant, including a particular article that appeared the day before trial, which mentioned the prior conviction and link to other murders. Yet because Mr. C. did not refer to any of these specific facts on voir dire and said he would be impartial, the trial court denied the defendant’s challenge of Mr. C. for cause.
The ABA’s “Standards Relating to Fair Trial and Free Press” are instructive as to the adequacy of voir dire for purposes of exposing the prejudice resulting from adverse publicity. They provide:
(a) Method of examination.
Whenever there is believed to be a significant possibility that individual talesmen will be ineligible to serve because of exposure to potentially prejudicial materia), the examination of each juror with respect to his exposure shall take place outside the presence of other chosen and prospective jurors____ The questioning shall be conducted for the purpose of determining what the prospective juror had read and heard about the case and how his exposure has affected his attitude towards the trial, not to convince him that he would be derelict in his duty if he could not cast aside any preconceptions he might have.
See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press 3.4(a) (approved ed. March, 1968) [hereinafter ABA Standards],
The Appendix to this opinion, infra at 107, recounts the examination of these nine jurors. It is included to illustrate the inadequacy of the voir dire examination to ferret out the prejudicial effects of the pretrial publicity as well as to provide a basis for concluding there was a strong likelihood that these jurors had been prejudiced by pretrial publicity.
The ABA Standards relating to empaneling fair juries address the tests for determining whether a juror exposed to adverse pretrial publicity should be excused for cause, viz:
(b) Standard of acceptability.
Both the degree of exposure and the prospective jurors’ testimony as to his state of mind are relevant to the determination of acceptability. A prospective juror who states that he will be unable to overcome his preconceptions shall be subject to challenge for cause no matter how slight his exposure. If he has seen or heard and remembers information that will be developed in the course of trial, or that may be inadmissible but is not so prejudicial as to create a substantial risk that his judgment will be affected, his acceptability shall turn on whether his testimony as to impartiality is believed. If he admits to having formed an opinion, he shall be subject to challenge for cause unless the examination shows unequivocally that he can be impartial. A prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to his testimony as to his state of mind. [See ABA Standards, supra, 3.4(b).]
This standard is comparable to the ABA standards that call for a reasonable likelihood test and require no showing of actual prejudice in the jury. The ABA standards also provide that where a motion to change venue is made or reconsidered after the jury is selected, the fact that the jury satisfies prevailing standards of acceptability is not controlling if the record shows that the reasonable likelihood standard was met. See ABA Standards, supra, 3.2. See discussion, supra, at 91-92 n. 10.
The psychological and social science research on the effects of publicity on juror prejudice is not entirely conclusive, but casts serious doubt on whether jurors can ignore prejudicial information relating to the defendant obtained outside the courtroom despite curative instructions. At least two studies posit that jury instructions can eliminate or reduce the effect of prejudicial publicity on jurors’ deliberations. See, e.g., Simon, "Does the Court’s Decision in Nebraska Press Association Fit the Research Evidence on the Impact on Jurors of News Coverage?,’’ 29 Stan.L.Rev. 515 (1977); Kline and Jess, “Prejudicial Publicity: Its Effect on Law School Mock Juries," 43 Journalism Q. 113 (1966). However, other studies indicate that such cautionary instructions are ineffective or counter-productive. See, e.g., Padawer-Singer, Singer & Singer, “Voir Dire by Two Lawyers: An Essential Safeguard,” 57 Judicature (1974); PadawerSinger & Barton, "The Impact of Pretrial Publicity on Jurors’ Verdict," The Jury System in America: A Critical Overview (Simon ed. 1975); Doob, “Evidence, Procedure, and Psychological Research,” Psychology and the Law: Research Frontiers (Berman, Nemeth & Vidmar, eds., (1976)); Sue, Smith & Caldwell, "Effects of Inadmissible, Evidence on the Decisions of Simulated Jurors: A Moral Dilemma," 3 J. Applied Soc. Psych. 345 (1973); Sue, Smith & Gilbert, “Biasing Effects of Pretrial Publicity on Judicial Decisions,” 2 J.Crim. Justice 163 (1974); Tons & Chaffee, "Pretrial Publicity and Juror Prejudice," 43 Journalism Q. 647 (1966); Wolf & Montgomery, “Effects of Inadmissible Evidence and Level of Judicial Admonishment to Disregard On the Judgment of Mock Jurors," 7 J. Applied Soc. Psych. 205 (1977); Oros & Ellman, “Impact of Judge’s Instructions Upon Jurors' Decisions: The Cautionary Charge in Rape Trial," 10 Representative Research Soc. Psych. 220 (1977); Broder, “The University of Chicago Jury Project,” 38 Neb.L.Rev. 744 (1959). The foregoing studies suggest that rather strong empirical evidence exists for the proposition that jurors are influenced by prejudicial publicity and carry that bias into jury deliberations, regardless of the court’s instructions or their sincere belief in their own impartiality.
In State v. Smith, supra, 55 N.J. 476, the first time counsel asked to make a challenge for cause at the bench he was permitted to do so and the challenge was sustained, the second time the trial court told him to make his challenge in open court and it was also sustained. On appeal, this Court observed that the trial court, knowing its probable ruling in the second instance, may have wanted to save time. Later, defense counsel made challenges for cause without requesting permission to come to the bench. When at one point counsel said that he felt compelled to exercise peremptory challenges because the court had instructed him “that challenges for cause could not be heard at side bar,” the trial judge said "I did not say that." Id. at 483. Later, when counsel asked, he was again permitted to come to the bench for the purpose of making a challenge for cause. This Court concluded that the trial court had not made any general ruling prohibiting challenges for cause at side bar, that the subject was within the trial court’s discretion, and that no prejudice to the defendant had been shown. Id. In this case, the trial court not only barred side bar conferences, it refused to excuse the challenged jurors for cause.
The Court’s definition of “depravity of mind” does not follow the original rule of the Georgia courts that required a state of mind that led the murderer to commit torture or an aggravated battery on the victim before death. See Godfrey, 446 U.S. 420, 431, 100 S.Ct. 1759, 1766, 64 L.Ed.2d 398, 408 (1980). Instead, the Court’s interpretation more closely resembles Florida's construction of its "heinous” factor: "a conscienceless or pitiless crime.” See State v. Dixon, 283 So.2d 1 (Fla. 1973). However, even under Florida law, the murder in this case might not be considered “heinous.” In Jackson v. State, 451 So.2d 458 (Fla.1984), the defendant picked up McKay for a drive and shot him in the back; the defendant put McKay in a plastic bag and placed him in the trunk apparently while he was still alive. McKay was later shot again and the body dropped off a bridge; the record contains no evidence that McKay remained conscious for more than a few moments after the first shot. It was held that McKay was incapable of suffering to the extent contemplated by this aggravating circumstance. In Clark v. State, 443 So.2d 973 (Fla.1983), the defendant shot a disabled elderly woman in head and she later died; there was no evidence that she was conscious after being shot, or in any pain. The Court ruled that helpless anticipation of impending death for an instant is insufficient to establish this aggravating factor.
Under the facts of this case, I think it would be contrary to fundamental fairness to subject defendant to another sentencing hearing, even if the State were to base its request for the death penalty only on the prior conviction aggravating factor, c(4)(a).
The Court has found that the trial court’s instructions regarding the c(4)(c) aggravating factor were improper and that the evidence at the trial did not support the jury’s finding of the c(4)(c) aggravating factor. The jury did find that aggravating factor c(4)(a) also applied to defendant and that this factor alone was not outweighed by the mitigating factors. This fact, however, would not be determinative on a retrial as this Court has held that the State must meet a higher burden of proof: that the aggravating factors must outweigh the mitigating factors beyond a reasonable doubt. Ante at 53. Also, the jury’s finding must be considered to have been tainted by “the potentially prejudicial influence that an unsupported instruction could well wield in jury deliberations." State v. Christener, 71 N.J. 55, 71 (1976).
Without this taint, the jury may have reached a different weighing regarding the mitigating factors and the one remaining aggravating factor. The trial court’s error thus deprived defendant of an opportunity to secure a jury finding that could have avoided the death penalty. When the State acts improperly in the sentencing phase of a capital case, fundamental fairness requires that the State not be allowed to subject the defendant again to the risk of being sentenced with death. See State v. Ramseur, 106 N.J. 460-468 (1987) (Handler, J., dissenting).
The Asbury Park Press article on Tuesday, November 15, 1983 reported, inter alia, that the very first juror questioned on voir dire said she believed in "a life for a life." She was excused because she said she would automatically vote for the death penalty.
STATE OF NEW JERSEY v. RICHARD BIEGENWALD.
May 28, 1987.
Petition for certification denied.
STATE OF NEW JERSEY v. RICHARD BIEGENWALD.
February 18, 1988.
This matter having been duly presented to the Superior Court, Appellate Division, on an application for leave to appeal, and the Supreme Court having determined that it should consider the appeal directly;
It is ORDERED that the motion for leave to appeal is certified to this Court pursuant to Rule 2:12-1 and that leave to appeal is granted.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. RICHARD BIEGENWALD, DEFENDANT-RESPONDENT.
Argued March 29, 1988
Decided June 20, 1988.
Mark P. Stalford, Assistant Prosecutor, argued the cause for plaintiff-appellant (John Kaye, Monmouth County Prosecutor, attorney).
Glen J. Vida, argued the cause for defendant-respondent.
Judith L. Borman, Deputy Public Defender, II, argued the cause for amicus curiae, Office of the Public Defender (Alfred A. Slocum, Public Defender, attorney).
Boris Moczula, Deputy Attorney General, submitted a letter in lieu of brief on behalf of the Attorney General (W. Cary Edwards, Attorney General, of New Jersey, attorney).
[OPINION BY GARIBALDI, Justice. type=majority]
The opinion of the Court was delivered by
GARIBALDI, Justice.
In State v. Biegenwald, 106 N.J. 13 (1987) (Biegenwald II), we affirmed Richard Biegenwald’s conviction for the murder of Anne Olesiewicz but reversed his death sentence and remanded the case for a new sentencing procedure. This interlocutory appeal concerns the aggravating factors that may be used in defendant's new sentencing proceeding in the Olesiewicz case. Specifically, the issue here is whether in the new penalty phase of the Olesiewicz case the State may introduce as evidence of aggravating factor N.J.S.A. 2C:ll-3c(4)(a) defendant’s murder conviction of William Ward, obtained after his Olesiewicz murder conviction, but before the resentencing phase of that case.
N.J.S.A. 2C:ll-3, the Capital Punishment Act (the Act), is silent with respect to proceedings on retrial. We entertain this interlocutory appeal in view of its importance to the State and to this defendant and similarly-situated defendants, in establishing some guidelines to be applied in the resentencing phase of a capital case.
I
On December 7,1983, a Monmouth County jury convicted the defendant, Richard Biegenwald, of the murder of Anna Olesiewicz and sentenced him to death. At the sentencing phase, the prosecutor sought to establish two aggravating factors: Sec. (c)(4)(a), which provided at that time that the State could introduce evidence that “[t]he defendant has previously been convicted of murder;” and Sec. c(4)(c), which provides that “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim”. As evidence of Sec. (c)(4)(a) the State introduced defendant’s 1959 murder conviction for which he served almost eighteen years in prison. The defendant sought to establish three mitigating factors: Sec. c(5)(a), that “defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution;” Sec. c(5)(d), that “defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect ... but not to a degree sufficient to constitute a defense to prosecution;” and Sec. c(5)(h), “[a]ny other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.”
The jury found both aggravating factors beyond a reasonable doubt and two of the mitigating factors, Sec. c(5)(d) and (5)(h). However, the jury found that neither aggravating factor was outweighed by the combined mitigating factors. Accordingly, pursuant to Sec. c(3)(a), defendant was sentenced to death.
Defendant appealed to this Court as of right under Rule 2:2—1(a)(3). On March 5, 1987, this Court affirmed Biegenwald’s murder conviction but reversed the death sentence because the trial court failed to instruct the jury properly in the sentencing phase that it must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. See Biegenwald II, supra, 106 N.J. at 18.
On February 16, 1984, after defendant’s conviction for the Olesiewicz murder, but before this Court’s disposition of his appeal in that case, defendant was convicted of the murder of William Ward. In the Ward case, the State again presented defendant’s 1959 murder conviction as evidence of aggravating factor c(4)(a), but also attempted to present defendant's prior conviction for the Olesiewicz murder as further evidence of that factor. Biegenwald I, supra, 96 N.J. at 633. In Biegenwald I, we held that during the penalty phase of the Ward capital proceeding the State could not use defendant’s Olesiewicz murder conviction to prove Sec. c(4)(a). The jury convicted defendant of Ward’s murder and the trial court sentenced him to life imprisonment with thirty years of parole ineligibility. The Appellate Division affirmed Biegenwald’s conviction for the murder of Ward. On May 28, 1987, we denied defendant’s petition for certification in the Ward case. 107 N.J. 649 (1987).
In the new penalty phase of the Olesiewicz murder case, the State made a motion to admit defendant’s 1984 conviction for the murder of William Ward as evidence of aggravating factor See. c(4)(a). The trial court denied the State’s motion. By order dated February 19, 1988, we granted the State’s interlocutory motion for leave to appeal the trial court’s order, and now reverse.
II
As enacted in 1982 and at the time of the original Olesiewicz trial, Sec. c(4)(a) of the Act provided that “[t]he aggravating factors which may be found by the jury or the court are: (a) the defendant has previously been convicted of murder ...” In 1985, the Legislature amended Sec. c(4)(a) to read “[t]he defendant has been convicted, at any time, of another murder. For purposes of this section, a conviction shall be deemed final when sentence is imposed and may be used as an aggravating factor regardless of whether it is on appeal.” L.1985, c. 178, § 2.
The legislative history of the 1985 amendments discloses that the amendments were made directly in response to this Court’s decisions in Biegenwald I, supra, and State v. Bey, 96 N.J. 625 (1984). In Biegenwald I, the sole issue was whether during the penalty phase of a capital case the State could use as an aggravating factor under See. c(4)(a) a defendant’s prior conviction for murder when the appeal of that conviction was not final. There we noted that the relevant language “has previously been convicted of murder” was unclear on its face, and simply did not “explicate the necessity for or degree of finality” that must attach to a prior conviction for its use pursuant to Section c(4)(a). 96 N.J. at 634-35. While recognizing that “our resolution of the question presented is not free from doubt,” id. at 639, we held that a prior conviction could not be used as a Sec. c(4)(a) aggravating factor until appellate review of that conviction was final. Ultimately, however, we concluded, “this is a matter committed to the wisdom of the Legislature.” Id. at 640. “[T]he Legislature,” we wrote, “may clarify or modify the present scheme to the extent that our interpretation does not commend itself to some as yet unarticulated statutory purpose or policy.” Ibid. The same issue was also present in State v. Bey.
The Legislature responded to these decisions by amending c(4)(a) in 1985. The legislative history of the 1985 amendment discloses that the Legislature specifically intended to permit the use of convictions on appeal to insure that serial killers do not evade the consideration of their multiple murder convictions as aggravating factors:
In two recent decisions, State v. Bey and State v. Biegenwald, both decided on June 26 of this year, the New Jersey Supreme Court ruled that a defendant found guilty of murder cannot, pending the conclusion of direct appeal proceedings challenging the guilty verdict, be considered as “having been convicted” for sentencing purposes under the capital punishment statute.
Prosecutors are concerned about this ruling because they feel that it will hamper the prosecution of so-called "serial murder[ers],” individuals who kill victims randomly in a series of unrelated crimes. When discovered, these murderers usually undergo a separate trial on each murder charge. Often a trial will begin while a prior conviction is still in the appeal process. Prosecutors are concerned that if prior convictions on appeal cannot be introduced, in effect the death penalty will not be able to be used against the type of murderer for which capital punishment was intended. The Senate committee amendments would permit the introduction of prior murder convictions while on appeal during the sentencing phase of a death penalty trial. It should be noted with regard to this amendment that the majority of states with capital punishment statutes do permit convictions on appeal to be introduced as prior convictions. [Statement of Assembly Judicial Committee to Senate No. 950, February 4, 1985, at 3.]
Although the Legislature’s policy underlying the amendment of Sec. c(4)(a)—endorsing application of the factor to serial killers—favors allowing the use of the Ward conviction at the Olesiewicz resentencing, the amendment is not determinative of the issue. Defendant’s appeal of his Ward murder conviction has been finalized; hence, the specific issue that the 1985 amendment addressed is not present in this case.
Instead, we find that the Ward conviction is admissible under the original language of Sec. e(4)(a). This conclusion is supported by the other issue we decided in State v. Bey. There we held that the Sec. c(4)(a) language “has previously been convicted of murder” did not require that the previous conviction occur before the commission of the murder being tried in order to have it considered as an aggravating factor at the penalty phase of the capital case. State v. Bey, supra, 96 N.J. at 628-29.
In Bey, defendant argued that “previously” meant prior to the commission of the offense for which he was being tried. In rejecting that position, we stated:
We find no legislative history, decisional law, or policy considerations to recommend defendant’s interpretation. We are satisfied that the status of the prior conviction at the time of its intended use—the penalty phase of the subsequent murder prosecution—is determinative. The relevance of such a conviction ... inheres in the fact that the conviction has occurred prior to the jury’s consideration of the appropriate penalty to be imposed. [/d at 629 (emphasis added).]
Because the Ward conviction became final prior to the resentencing hearing for the Olesiewicz murder, under the terms of the original enactment it is relevant to “the jury’s consideration of the appropriate penalty to be imposed.” The amended language of Sec. c(4)(a) does not lead us to abandon this interpretation. The legislative statements accompanying S.950 are silent concerning the proper construction of the amended provision, which now reads “[t]he defendant has been convicted, at any time, of another murder.” (emphasis added). Nonetheless, we believe that this language is merely a ratification of this Court’s holding in Bey that prior convictions need not have been entered prior to the commission of the death-eligible murder. This reasoning is supported by the previously quoted statement accompanying S.950, in which the Legislature registered its concern that capital juries not be foreclosed from considering the most aggravating evidence against serial killers—their other murders—by procedural hurdles created because “these murderers usually undergo a separate trial on each murder charge.” Adoption of this position furthers the Legislature’s clear intent to prevent the frustration of the State’s prosecution of serial murderers by allowing each successful prosecution of a serial murderer to inure to the State’s benefit in a resentencing proceeding.
The cases in other jurisdictions support our decision here. We recognize that the relevance of other states’ capital cases depend in part on the state’s specific capital punishment statutes. Nevertheless, the reasoning behind these decisions as well as the Supreme Court decisions on this issue support our position that prior convictions entered after the original trial but before the resentencing proceeding should be considered by the jury as an aggravating factor.
The United States Supreme Court has held that there is no federal constitutional prohibition against a statute, like Sec. c(4)(a), that allows the state to introduce evidence of defendant’s prior convictions in the penalty phase of a bifurcated capital sentencing proceeding. See, e.g., Poland v. Arizona, 476 U.S. 147, 150, 158, 106 S.Ct. 1749, 1752, 1756, 90 L.Ed.2d 123, 129, 134 (1986) (both majority and dissent note without comment that the prosecutor alleged as an additional aggravating circumstance against one defendant a felony conviction arising after the first penalty proceeding); Zant v. Stephens, 462 U.S. 862, 886, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235, 255-56 (1983); Gregg v. Georgia, 428 U.S. 153, 165 n. 9, 193-95, 96 S.Ct. 2909, 2921 n. 9, 2934-36, 49 L.Ed.2d 859, 870 n. 9, 886 (1976); Biegenwald II, supra, 106 N.J. at 53-54 n. 7.
Other jurisdictions have specifically allowed the use on remand of a conviction gained after imposition of the death sentence that is being retried. In State v. Teague, 680 S.W.2d 785, 789-90 (1984), the Supreme Court of Tennessee relied on a reading of its statute’s “previously convicted” aggravating circumstance that paralleled this Court’s reading in Bey, and held that the defendant’s “plea and conviction ... occurred after [his] first trial ... but before the re-sentencing hearing and, consequently, may be used as an aggravating factor.” In reaching that conclusion, the Court noted that the important point was that the conviction be entered before the resentencing hearing. See also State v. Adkins, 725 S.W.2d 660, 665 (Tenn.) (conviction of defendant for aggravated assault obtained after defendant’s first trial for murder was properly admitted in resentencing hearing as “previous conviction,” in support of aggravating circumstances), cert. den., — U.S. -, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987); cf. Oats v. State, 446 So.2d 90, 94-95 (Fla.1984) (trial court erred in finding prior violent crime aggravating factor existed where prior conviction was later vacated; when prior crime was retried and conviction affirmed on appeal, however, it could again be presented at resentencing).
Similarly, in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. den., 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), the Supreme Court of Arizona upheld the use at resentencing of a conviction entered after the first sentencing trial, holding that “[c]onvictions entered prior to a sentencing hearing may ... be considered regardless of the order in which the underlying crimes occurred ... or the order in which the convictions were entered.” 135 Ariz. at 57 n. 2, 659 P.2d at 16 n. 2. The court relied on its view that the purpose of the sentencing hearing “ ‘is to determine the character and propensities of the defendant____ Revelation of subsequent lawless acts ... would help to attain the objectives of the sentencing statute.’ ” Id. (quoting State v. Valencia, 124 Ariz. 139, 141, 602 P.2d 807, 809 (1979)); see Richmond v. Ricketts, 640 F.Supp. 767 (D.Ariz. 1986) (conviction for first degree murder that could not have been presented at trial was admitted at resentencing hearing as an aggravating circumstance); State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (prior murder conviction entered against defendant subsequent to conviction in present case was proper aggravating circumstance in resentencing proceeding), cert. den., 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983); Jones v. State, 381 So.2d 983, 994 (Miss.1980) (words “previously convicted” applied so that defendant’s armed robbery conviction entered after the murder was committed could be considered as an aggravating factor during sentencing phase of murder case; “the legislature undoubtedly intended a weighing of both [aggravating and mitigating factors] at the time of sentencing so the past behavioral patterns likely to affect the defendant’s future behavior may be evaluated by the jury in deciding whether the defendant will live or die”).
Defendant also maintains that the application of amended Sec. c(4)(a) in his case constitutes an impermissible ex post facto law. His Ward murder conviction is final. Thus, we find it to be admissible under the original Sec. c(4)(a) statutory language. Consequently, there is no possible ex post facto issue in this case because the amended provision is not before us.
Ill
We also conclude that the admission of the Ward conviction as evidence of aggravating factor c(4)(a) does not violate the double jeopardy clauses of the Federal and State constitutions. The fifth amendment guarantee against double jeopardy protects criminal defendants (1) against a second prosecution for the same offense after acquittal; (2) against a second prosecution for the same offense after conviction; and (3) from multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, 665 (1969); Note, “Twice in Jeopardy,” 75 Yale L.J. 262, 265-66 (1965). In North Carolina v. Pearce, the Supreme Court held that there was no constitutional limitation if on retrial a court imposes a harsher sentence than imposed after the first conviction. The Court observed that this was a long-established principle of double jeopardy. Id. at 719, 89 S.Ct. at 2077, 23 L.Ed.2d at 666; Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919). The fundamental principle, the Court wrote, rests “ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” North Carolina v. Pearce, supra, 395 U.S. at 721, 89 S.Ct. at 2078, 23 L.Ed.2d at 667. However, the Court held that if the imposition of the greater sentence results from the vindictiveness of a sentencing court against a defendant exercising his right of appeal, there may be a violation of the due process clause of the fourteenth amendment. Id. at 725, 89 S.Ct. at 2080, 23 L.Ed.2d at 669-70. To assure that such vindictiveness is not a motivation, the trial court, in imposing a more severe sentence at the subsequent trial, must set forth its reasons. Such reasons should be based on “objective information concerning identifiable conduct” on the defendant’s part. Id. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670.
In Bullington v. Missouri, 451 U.S. 430, 443, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270, 281 (1981), the Supreme Court held a death sentence could not be imposed on retrial of a defendant who had successfully appealed a conviction of life imprisonment. The Court reasoned that the sentence of life imprisonment at the first trial meant that a jury had “acquitted” defendant of what was necessary to impose a death sentence. Id. at 446, 101 S.Ct. at 1862, 68 L.Ed.2d at 284; see also Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (followed Bullington and held that double jeopardy clause prohibited state from sentencing defendant to death after life sentence he received was set aside on appeal because of trial court’s error of law).
In Biegenwald II, supra, 106 N.J. at 68, we distinguished Bullington from that case by stating that “retrial of the instant case on the issue of penalty would result in no escalation in the severity of the potential punishment,” since defendant received the death sentence at his first trial. We now reaffirm the rule adopted in Biegenwald II, and required by Bullington, that a defendant who receives life imprisonment at his first capital murder trial, cannot at his resentencing proceeding receive the death sentence. Ibid. Nevertheless, as we stated in Biegenwald II:
The only constitutional restriction applied to retrials in criminal cases is that the defendant may not be subject to punishment beyond that imposed in the first trial, and since death was the verdict in the first trial that issue is immaterial here.
[Id. at 72 (emphasis added).]
Specifically, in discussing double jeopardy we held that “[rjesentencing cannot be considered double-jeopardy where the first sentence was a death sentence and the evidence was sufficient.” Id. at 68. We also noted, however, that “[tjhis does not mean that the State can charge any aggravating factors at resentencing that were not found by the jury in the first sentencing phase.” Ibid. Thus, the fact that a defendant at the original capital trial received the death sentence does not automatically mean that at defendant’s resentencing, the State is not constrained by principles of double jeopardy and fundamental fairness.
Courts recognize that there is a distinction between the sentencing procedure in a capital case and sentencing in a noncapital case. For example, in Bullington and Rumsey, the Supreme Court based its decisions on the analogy drawn between an “acquittal at trial” and “acquittal of death at sentencing.” In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the Supreme Court interpreted Bullington and Rumsey as adopting the general Pearce principle that a convicted defendant may be constitutionally subject to greater punishment on retrial, unless a jury or an appellate court decides that the prosecution has not proved its case. In Poland, the Supreme Court held that the double jeopardy clause did not bar a further capital sentencing proceeding where the reviewing court found the evidence insufficient to support the only aggravating factor on which the sentencing judge relied but did not find the evidence insufficient to support the death penalty. Id. at 156-57, 106 S.Ct. at 1756, 90 L.Ed.2d at 133.
The majority and dissent in Poland v. Arizona both recognized that the analogy between “acquittal at trial” and “acquittal of death at sentencing” is not perfect. Id. at 159-60, 106 S.Ct. at 1757, 90 L.Ed.2d at 132; id. at 159, 106 S.Ct. at 1757. 90 L.Ed.2d at 135 (Marshall, J., dissenting). All the justices in Poland found that the issue in a capital sentencing proceeding is whether death is the appropriate punishment and that the “offense” for which the defendant receives his “conviction” or “acquittal” is that of the “appropriateness of the death penalty, not the elements of any particular aggravating factor.” Id. at 160, 106 S.Ct. at 1757, 90 L.Ed.2d at 135 (Marshall, J., dissenting). Both the majority and dissenting opinions rejected a view of capital sentencing as a set of mini-trials on each aggravating factor. Id. at 155-57, 106 S.Ct. at 1755-56, 90 L.Ed.2d at 132-133; id. at 159-61, 106 S.Ct. at 1757-58, 90 L.Ed.2d at 135-136 (Marshall, J., dissenting). The Poland dissent is based on the view that because the evidence of “depravity,” the sole basis initially offered by the trial court to support its “conviction” of petitioners was insufficient as a matter of law, the insufficiency constituted an “acquittal” that barred reimposition of the death penalty. Thus, the relevant issue, as both opinions in Poland make clear, is whether the sentencing jury or judge has decided that the State has not proved its case for the death penalty and hence has “acquitted” the defendant of the appropriateness of that penalty.
We also recognize that sentencing in a capital proceeding under the Act calls for different treatment from that in the ordinary sentencing proceeding. Biegenwald II, supra, 106 N.J. at 60. Moreover, our construction of the Act “is based to some extent on the functional similarity of aggravating factors and the weighing process itself to the traditional proof of ‘elements of an offense.’ ” Id. at 59, 524 A.2d 130. Nevertheless, we recognize that such an analogy is not perfect.
In Biegenwald II, we specifically discussed the admission of new evidence on an aggravating factor found by the sentencing jury at the original trial. In that case, the sentencing jury at the trial found aggravating factors c(4)(a) and c(4)(c). We held that at Biegenwald’s resentencing proceeding (at issue in this case) the State could not present evidence that an “aggravated battery” or “torture” of the victim occurred because under State v. Ramseur, 106 N.J. 123, 207-11, the evidence for those elements of c(4)(c) presented at trial was insufficient to go to the jury. Consequently, we concluded that to allow the State another opportunity to present that evidence would violate fundamental double jeopardy principles. Biegenwald II, supra, 106 N.J. at 51 (citing State v. Tropea, 78 N.J. 309, 36 (1978)). Nevertheless, we held that on retrial the jury would be entitled to consider whether the evidence of “depravity of mind” was sufficient to justify imposition of the death penalty based on that element in Sec. c(4)(c). In reaching that conclusion, we drew from Poland v. Arizona:
[T]he Double Jeopardy Clause does not require the reviewing court, if it sustains [the] claim [that the evidence was as a matter of law insufficient to support the aggravating circumstances on which defendant’s death sentence was based], to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected. [Poland v. Arizona, 476 U.S. 147, 157, 106 S.Ct. 1749, 1756, 90 L.Ed.2d 123, 133 (1986).]
We concluded, in Biegenwald II, that both the State and the defendant could present new evidence:
[T]he State and the defense are free to present new evidence, testimony or documentation not presented at the original sentencing proceeding, and ... the new jury may reach conclusions concerning aggravating factors and mitigating factors different from and inconsistent with the findings at the original sentencing proceeding. In other words, neither side is assured, at the new trial, of the "benefits” gained in the original trial.
[Biegenwald II, supra, 106 N.J. at 72.]
The State asserts that since the original sentencing jury found aggravating factor c(4)(a) on the basis of defendant’s 1959 murder conviction, evidence of defendant’s Ward murder conviction is merely additional evidence of a factor already proven and found. Thus, the State contends, it should be admitted at resentencing. It is clear, of course, that the State did not “hold back” the evidence of the Ward murder conviction since the Ward conviction was not in existence at the trial. Defendant, however, argues that because of the weighing process in a capital sentencing proceeding, evidence of a subsequent murder conviction constitutes a new aggravating factor, not simply additional evidence of an aggravating factor already found. Thus, defendant submits, the jury will count factor c(4)(a) twice when it weighs the aggravating factors against the mitigating. Implicit in defendant’s reasoning is the conclusion that new aggravating factors not alleged at the original trial may not be alleged at resentencing. The State disagrees, and argues instead that all we held in Biegenwald II was that the State may not assert at resentencing any aggravating factor specifically rejected by the first sentencing phase jury. Thus, the State maintains, it may proffer new factors at resentencing.
There is no federal constitutional prohibition of seeking on resentencing an aggravating factor not found at the first sentencing phase where defendant is sentenced to death at the conclusion of the first sentencing phase. Poland v. Arizona, supra, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123; Knapp v. Cardwell, 667 F.2d 1253 (9th Cir.1982) (evidence of both aggravating and mitigating circumstances may be introduced at a resentencing hearing even if evidence developed or discovered after original sentencing hearing or not introduced there for some other reason; there is no such thing as an “acquittal” from an aggravating circumstance in the penalty phase); Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987) (at resentencing State could present as additional relevant evidence testimony of witness not present at original trial); Hopkinson v. State, 664 P.2d 43, 70-71 (Wyo.1983) (statutory aggravating circumstances found not to exist in first trial could be submitted and found to exist at resentencing, without subjecting defendant to double jeopardy); Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979) (no double jeopardy violation in submitting an additional aggravating circumstance to jury for its consideration in resentencing trial).
Thus, the cases largely reject the claim that introduction of a new aggravating factor at resentencing constitutes double jeopardy. Defendant also raises a fundamental fairness claim, however. He urges that even though the first jury’s failure to find an aggravating factor may not constitute an “acquittal” for double jeopardy purposes, it would be fundamentally unfair to allow the State to pursue a new theory on which to gain a death sentence each time an appeal is successful.
Defendant’s contention, to be sure, is generally consistent with this State’s fundamental fairness jurisprudence. See, e.g., State v. Gregory, 66 N.J. 510 (1975) (requiring joinder of known offenses based on same conduct, arising from same criminal episode); State v. Godfrey, 139 N.J.Super. 135 (App.Div.1976) (State, which has knowledge of facts of case, cannot prosecute under one statute and then, when it has lost, subject defendant to reprosecution under another statute).
Capital sentencing is a hybrid: the penalty phase of a capital prosecution has many similarities to a criminal guilt/innocence determination at trial. Despite any similarity to a basic criminal trial, however, a penalty phase in a capital prosecution is a sentencing proceeding, not a guilt/innocence determination proceeding. This is particularly apparent with a straightforward aggravating factor such as See. c(4)(a). All of the other seven aggravating factors relate to the specific circumstances of the capital crime that is the subject of the prosecution. Sec. c(4)(a) relates solely to the accused’s prior acts, specifically any previous murder convictions. Therefore, aggravating factor c(4)(a) focuses on a defendant’s character, and thus far more clearly resembles a standard sentencing factor than relevant evidence at a trial.
It is well established that individualized sentencing, the consideration of the individual characteristics of the offender and his crime, is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976); see also Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978) (“an individualized decision is essential in capital cases”). In sentencing, the jury must have before it all the possible relevant information “regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant’s character, background, history, mental condition, and physical condition.” California v. Ramos, 463 U.S. 992, 1006, 103 S.Ct. 3446, 3455, 77 L.Ed.2d 1171, 1184 (1983); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929, 941 (1976).
In sentencing a defendant in a capital murder case, it is extremely important that the jury, in determining whether a defendant should receive the death penalty or life imprisonment, know that the defendant has previously been convicted of one or more murders. Indeed, previous convictions are always central to sentencing determinations. The Supreme Court has observed the importance of intervening convictions in resentencing proceedings in a noncapital case. In Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), the Supreme Court held that imposition of a greater sentence on retrial of a passport offense because of the defendant’s intervening conviction of a previously committed offense did not pose any constitutional issues. In finding no evidence of enhanced vindictiveness, the Court stated: “Consideration of a criminal conviction obtained in the interim between an original sentencing and a sentencing after retrial is manifestly legitimate. This amply rebuts any presumption of vindictiveness.” Id. at 569-70, 104 S.Ct. at 3223, 82 L.Ed.2d at 434. Indeed, the court remarked, a trial judge’s failure at sentencing to consider such convictions “would have been inappropriate.” Id. at 570, 104 S.Ct. at 3223, 82 L.Ed.2d at 434. Justice Powell, in his concurring opinion in Washman, observed:
It would be difficult to think of an event or occurrence more relevant to the determination of a proper sentence than a criminal conviction obtained in the interim between an original sentencing and a sentencing following retrial.
[Id. at 574, 104 S.Ct. at 3225-26, 82 L.Ed.2d at 436.]
Biegenwald’s prior murder convictions are an indispensable consideration in determining whether death is the appropriate punishment. For the jury to make a knowledgeable decision, it is essential that it know the prior murder conviction record of defendant. A juror who does not know this pertinent evidence may not form an accurate opinion of the defendant, and is ill-equipped to render an individualized decision on whether death is the appropriate punishment. Indeed, it is to enable the jury to consider the individual characteristics of a defendant that a defendant at a resentencing proceeding may produce evidence of any new mitigating factor and any new evidence of previously presented mitigating factors.
Furthermore, there is no element of unfairness or surprise to the defendant since previous murder convictions have always been an aggravating factor under our statute. Since the passage of the Act in 1982, capital defendants have known that their prior murder convictions would be deemed an aggravating factor. Consequently, we find no merit in defendant’s argument that because his resentencing procedure was not instituted until four years after his original sentence proceeding it is fundamentally unfair for the Court to consider as an aggravating factor his intervening Ward murder conviction. Likewise, we find no merit in the State’s position that because the Court allowed the retroactive application of certain 1985 amendments that were favorable to defendants, it would be fundamentally unfair to the State not to allow the retroactive application of 1985 amendments not favorable to defendants.
In sum, we find that there is no constitutional limitation imposed on the use, in a resentencing phase, of a defendant’s murder conviction, entered subsequently to defendant’s original trial, as an aggravating factor under Sec. c(4)(a). Nor does this Court’s doctrine of fundamental fairness prohibit its use at resentencing. Indeed, to prohibit the use of such a murder conviction would violate the Legislature’s expressed intent to use such convictions against serial murderers and be fundamentally unfair to the State.
A more difficult issue, however, is posed regarding the State’s ability to introduce evidence of new aggravating factors. While we recognize that such an issue is not present in this case, it may arise in other resentencing proceedings.
The principle of fundamental fairness is based on the premise that the State with all the resources and power at its command should not be permitted to make repeated attempts to convict a person for the same offense, thereby compelling him or her to live in a continuing state of anxiety and insecurity. State v. Tropea, supra, 78 N.J. at 316; State v. Gregory, supra, 66 N.J. at 518; State v. Godfrey, supra, 139 N.J.Super. at 140-41. Certainly, the anxiety, expense, and ordeal suffered by a capital defendant in undergoing a new sentencing phase equals or exceeds the anxiety, expense, and ordeal suffered by a defendant in a retrial of a noncapital prosecution.
Given the punishment at stake in a capital prosecution, the State should be compelled to offer all its proof of any applicable aggravating factors against the defendant at his or her first trial. This is particularly so because under the Act, the presence of aggravating factors determines the death-eligibility of a defendant. We realize the great burden imposed on the State and its resources in conducting a capital prosecution. We do not mean to imply that the State will hold back evidence of an aggravating factor in the first trial. Indeed, we can envisage few instances in which evidence of a new aggravating factor, concerning the circumstances of the crime, would arise after the first trial.
At this time, however, we will not completely foreclose the State from introducing new aggravating factors at resentencing in what could be those truly rare occasions in which the introduction of new factors would not offend the principles of double jeopardy or fundamental fairness. The State will be permitted to introduce new aggravating factors only when it proves to the court that it has discovered new evidence sufficient to establish at resentencing a new aggravating factor and that such evidence was unavailable and undiscoverable at the original trial despite the State’s diligent efforts. When such rare occasions occur, we rely on the trial court to determine whether the admissibility of the new aggravating factor would violate the principles of double jeopardy or the doctrine of fundamental fairness.
IV
With our disposition of the instant case, the following rules emerge regarding capital resentencing:
If a defendant is sentenced .to life imprisonment at the original trial, he or she cannot be sentenced to death at the resentencing proceeding.
If the sentencing jury in the first trial specifically rejects an aggravating factor or an appellate court finds that the State failed to establish by sufficient evidence the existence of an aggravating factor at the original trial, the aggravating factor or that part of the aggravating factor rejected by the jury, cannot be used at the resentencing proceeding.
If the sentencing jury found an aggravating factor at the original trial, old and new evidence relevant to that aggravating factor may be admitted at the resentencing proceeding.
If the sentencing jury found proof of aggravating factor Sec. c(4)(a) at the original trial, or even if there was no Sec. c(4)(a) factor introduced at the original trial, evidence of a defendant’s interim murder conviction may be admitted at resentencing to establish aggravating factor Sec. c(4)(a).
With regard to aggravating factors other than Sec. c(4)(a), only in extremely rare occasions will the State be allowed to submit evidence of a new aggravating factor, and only on proof that such evidence was unavailable to the State at the time of the original trial.
Finally, at a resentencing proceeding the defendant may submit new evidence on mitigating factors previously found and any evidence of any new mitigating factor. If such new evidence or a new factor is introduced, the State obviously may offer appropriate rebuttal evidence. The State, however, will be precluded from introducing a new aggravating factor under the guise of producing rebuttal evidence.
We reverse the order of the trial court.
N.J.S.A. 2C:ll-3, the State’s capital punishment act (¿.1982, c. Ill), consisted of five subsections, (a) to (e), at the time of these crimes and their triáis. The death penalty provisions are found in subsections (c) to (e). For convenience, in referring to these provisions we shall, for instance, use Sec. c(4)(a) to designate N.J.S.A. 2C:ll-3c(4)(a). When cited in its totality, N.J.S.A. 2C:ll-3 will hereinafter be referred to as "the Act.”
Biegenwald was indicted for four other murders: Maria Ciallella, allegedly murdered on October 31, 1981; Deborah Osborne, on April 7, 1982; Betsy Bacon, on November 20, 1982; and William Ward, on September 21, 1982. See State v. Biegenwald, 96 N.J. 630, 633 (1984) (Biegenwald I).
References hereafter to defendant’s legal arguments include the arguments advanced by amicus curiae, Office of the Public Defender, and by defendant’s private counsel, Glen J. Vida, Esq.
[OPINION BY O’HERN, Justice, type=concurrence]
O’HERN, Justice,
concurring.
I concur in the judgment of the Court and its opinion except to the extent that the opinion approves the reasoning of Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986).
[OPINION BY HANDLER, Justice, type=dissent]
HANDLER, Justice,
dissenting.
During the sentencing phase of this 1983 capital prosecution, the State introduced as an aggravating factor pursuant to N.J.S.A. 2C:ll-3c(4)(a) a prior murder conviction dating from 1959. Errors unrelated to this evidence led to the reversal of the death penalty. State v. Biegenwald, 106 N.J. 13 (1987) (Biegenwald (II)). The State is proceeding with a resentencing trial, in which it again seeks the death penalty. In support of aggravating factor c(4)(a), it has attempted to introduce, in addition to the 1959 conviction, a 1984 conviction of defendant for the murder of William Ward. The Ward conviction did not become final until May 1987, after defendant was already sentenced to death and after his sentence had been vacated, but before the resentencing trial could be scheduled. The trial court rejected this evidence for resentencing purposes, prompting the State to take this interlocutory appeal. The appeal raises the issue of whether the State may introduce, as evidence supporting aggravating factor c(4)(a), a murder conviction that became final only after the death sentence now being retried was imposed. The Court reverses the trial court’s ruling, and holds that this subsequent murder conviction is permissible evidence of aggravating factor c(4)(a).
As originally enacted in 1982, section c(4)(a) allowed the State in a death sentencing trial to introduce as evidence of an aggravating factor that the defendant “has previously been convicted of murder.” This language was amended in 1985, however, to allow the State to introduce evidence that the defendant was convicted, “at any time,” of another murder. A. 1985, c. 178. The Court now reads the language of the original enactment to allow the use of the 1984 conviction at sentencing. I disagree. In my view, a fair reading of the language of the original enactment precludes the use of the 1984 conviction as evidence of a murder conviction “previous” to the 1983 murder conviction. Furthermore, the express intent of the Legislature that the amended version of c(4)(a) be applied prospectively should foreclose the use of the 1984 conviction at resentencing as a conviction obtained “at any time.” Most important, I believe that the Court’s ruling in this case runs contrary to principles of fundamental fairness that should preclude the use of the 1984 conviction in these circumstances. Accordingly, I dissent.
I.
The threshold question on this appeal is which version of c(4)(a) applies: the original enactment, which contemplated murders of which the defendant had been convicted “previously”; or the 1985 amendment, which contemplates murder convictions obtained “at any time.” The majority accepts the argument that given the prospective nature of the 1985 amendment, the statute applies as originally enacted; the majority proceeds, however, to read “previously” to mean “previously” to a sentencing hearing scheduled “at any time.”
In doing so, the majority relies on the decisions of this Court in State v. Bey, 96 N.J. 625 (1984), and in State v. Biegenwald, 96 N.J. 630 (1984) {Biegenwald (I)). In those companion cases, this Court rejected the argument advanced by defendants that “previously” as used in c(4)(a) before its amendment meant a conviction that occurred prior to the commission of the offense for which the defendant is then being tried. The Court held instead
that the status of the prior conviction at the time of its intended use—the penalty phase of the subsequent murder prosecution—is determinative. The relevance of such a conviction ... inheres in the fact that the conviction has occurred prior to the jury’s consideration of the appropriate penalty to be imposed. [Bey, supra, 96 N.J. at 629.]
The Court concludes, in this case, that this passage from Bey compels its conclusion that “previously” means “previous” to any resentencing.
I reject the Court’s reasoning. Its result does not follow ineluctably from Bey and Biegenwald (I); those cases considered whether, as between the commission of the crime and the initial penalty phase following conviction for it, the “previously been convicted” language more likely referred to the former or the latter. The context of another, subsequent penalty proceeding simply was not before the Court or within its contemplation; viewed in context, it is equally logical to conclude that “previously been convicted,” as construed in Bey and Biegenwald (I), meant prior to the initial penalty phase, not, as the majority would have it, prior to any resentencing proceeding. Given the ambiguity of the language of the provision as enacted, and the differing context in which Bey and Biegenwald (I) were decided, I believe that “previously been convicted” should be construed to mean prior to the initial penalty phase.
In addition to adhering more closely to the context of the cases, such a reading of this Court’s Bey and Biegenwald (I) precedents would be consistent with this Court’s decision, from the inception of the capital punishment statute, to opt for the most punctilious construction of ambiguous statutory provisions where those provisions relate to the State’s decision to take life. Thus, we have ruled that the ambiguous language of aggravating factor of c(4)(c) must be narrowly construed to encompass only particular kinds of conduct. State v. Ramseur, 106 N.J. 123, 197-211 (1987). We have held that the prior conviction aggravating factor of c(4)(a), as originally enacted, became final only on the completion of the appellate process. See State v. Bey, supra, 96 N.J. 625; Biegenwald (I), supra, 96 N.J. 630. Ambiguity was resolved in favor of heightened protection when we interpreted the statute as prescribing a non-unanimous determination as a possible verdict. State v. Ramseur, supra, 106 N.J. at 300-01. Indeed, we have gone so far as to determine, in the face of seemingly contrary language, that a defendant cannot be sentenced to death unless aggravating factors outweigh mitigating factors beyond a reasonable doubt. State v. Biegenwald (II), supra, 106 N.J. at 65-67. See also State v. Koedatich, 98 N.J. 553 (1984) (construing the direct appeal that is provided by the statute as a mandatory appeal); State v. McCrary, 97 N.J. 132 (1984) (implying a statutory duty on the State to notify a defendant of its reliance on particular aggravating factors with the opportunity for the defendant to challenge that showing); State v. Davis, 96 N.J. 611 (1984) (establishing a liberal standard for admissibility of evidence of mitigating factors while conventional rules of evidence remained applicable to aggravating factors).
I am not dissuaded from this interpretation by the Legislature’s policy statement accompanying S.950, which became the amendment of e(4)(a). The preamble to both the Senate and the Assembly versions of S.950 stated: “In enacting the amendments contained in this bill, the intent of the Legislature is to effect only prospective changes. The amendments are not intended to apply retrospectively or to affect cases now on appeal.” Because the amendment was enacted subsequent to the 1984 Ward conviction, and this case was “on appeal,” it is hard to escape the conclusion that its terms were not intended to be applicable to this case.
Furthermore, with respect to the use of new language, “at any time,” in lieu of “previously,” to define “convictions,” the 1985 amendment reflects, if anything, not a clarification, as the majority insists, but a change in the policy of the original enactment and this Court’s decisions in Bey and Biegenwald (I). It strains credulity to insist that the change from “previously been convicted” to “convicted at any time” represents a mere clarification, and not a substantive change; the plain meaning of the words belies any such suggestion. Indeed, the legislative statements are silent with respect to the proper construction of “at any time.” It is thus plausible to conclude that this language was intended to be a simple ratification of this Court’s holding in Bey, that the prior conviction need not have been entered prior to the commission of the death-eligible murder. The conclusion, therefore, that the policy change reflected in the amendment to c(4)(a) applies in construing the meaning of the original enactment, and means that under the provisions as first enacted the prior conviction need not have been entered prior to the original sentence for the death-eligible murder, simply has no foundation in the language or history of the enactment. Principles interpretation of the capital murder-death penalty statute reasonably requires that the Legislature’s provisions be narrowly construed when such provisions are ambiguous. In the absence of a clear statutory prescription, this Court is obliged, in my opinion, to resolve reasonable doubt in favor of the accused.
In sum, I believe that fundamental fairness should preclude the State from using the Ward conviction as a “prior conviction” at the resentencing for the Olesiewicz murder. While such a construction is within the literal comprehension of this Court’s decision in Bey, it was almost certainly not considered in Bey and would have the effect proscribed by this Court’s fundamental fairness decisions.
II.
A further issue warrants discussion. I agree that the prohibition of seeking on resentencing an aggravating factor not found at the first sentencing is not compelled by the federal constitution where the defendant was sentenced to death, Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986); Knapp v. Cardwell, 667 F.2d 1253, 1264-65 (9th Cir.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982); cf. Singleton v. Lockhart, 653 F.Supp. 1114, 1143 (E.D.Ark.1986) (where jury’s reliance on sole aggravating circumstance was invalidated, state could not seek the death penalty despite possibility that evidence would support an aggravating factor not found or sought, at first sentencing). Nevertheless, principles of fundamental fairness, if not state constitutional doctrine, call for this result. In my opinion, even though the jury’s failure to find an aggravating factor does not constitute an “acquittal” for double jeopardy purposes, it would be fundamentally unfair to allow the state a potentially new theory on which to gain a death sentence each time an appeal is successful.
I agree with the majority’s analysis that the aggravating factors other than c(4)(a) relate primarily to the circumstances of the offense; I disagree, however, with the majority’s assessment of the consequences of that fact. In my opinion, because the factors other than c(4)(a) relate to the circumstances of the offense, all of which should have been known to the State at the initial penalty hearing, the logic of such cases as State v. Gregory, 66 N.J. 510 (1975), and State v. Godfrey, supra, 139 N.J.Super. at 140, should preclude the State from introducing new aggravating factors relating to the circumstances of the case. The issue should not, in my opinion, be left to the discretion of trial courts.
I emphasize, however, that my disagreement with the majority is a narrow one. Thus, I endorse the majority’s conclusion that the State should be generally precluded from introducing new aggravating factors at resentencing, disagreeing only with the majority’s unwillingness to follow the logic of this decision and preclude the use of any such new aggravating factors. Further, I acknowledge that the future application of aggravating factor c(4)(a), as amended, can allow the introduction of murder convictions entered “at any time”—even those entered after an original death sentence and before a resentence. As recognized by the majority, ante at 538, unlike the other aggravating factors, which relate to the circumstances of the crime and the facts of which are available to the State, factor c(4)(a) relates to the character of the accused and is, as a result, less analogous to the Court’s fundamental fairness cases. In the absence of constitutional compulsion, I agree that the legislature’s expressed intent to allow the use of such convictions prospectively against serial murderers has a basis in reason.
III.
In sum, I believe that the language of factor e(4)(a) applicable on resentencing is the language as originally enacted, which must be construed in these circumstances to preclude the use under c(4)(a) of a conviction obtained a year after the initial penalty phase and not made final until four years after the initial penalty phase. To hold otherwise is to stray from this Court’s well-established principle that it will interpret ambiguous provisions within the capital murder statute narrowly as a reflection of its commitment to fundamental fairness.
Justice O’HERN concurring in the result.
For reversal—Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN—6.
For affirmance—Justice HANDLER—1.
The Court finds additional support for its interpretation from cases of other states that have allowed the use, on remand, of a conviction gained after the death sentence that is being retried was imposed. Ante at 530-531. See, e.g., Richmond v. Ricketts, 640 F.Supp. 767 (D.Ariz.1986); State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (Ariz.), cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983); State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (Ariz.), cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); Oats v. State, 446 So.2d 90, 94-95 (Fla.1984); State v. Teague, 680 S.W.2d 785, 789-90 (Tenn. 1984). As in most contexts involving capital statutes, however, the extent to which the holdings of other states are transferable is problematic. Different standards and degrees of protection—both statutory and judicial—exist from state to state, dispelling the authoritative value of one state’s rule for another state.
I disagree with the majority’s result for a second reason. This Court held, in Bey and in Biegenwald (I), supra, 96 N.J. at 637,, that a murder conviction was not considered "final" until no direct appeals were pending, and thus that a conviction whose appeals were pending could not be used to satisfy c(4)(a). Under this interpretation of c(4)(a), which the majority is using, the State could not have used this conviction to satisfy c(4)(a) for the 1983 conviction at any time prior to May 28, 1987, when it became final. Only because this Court did not resolve defendant’s appeal of his death sentence until shortly before the Ward conviction became final, and only because resentencing could not be scheduled before the Ward conviction became final, is this conviction available now to the State.
The Court's allowance of the use of the Ward conviction in these circumstances runs directly counter to this Court’s fundamental fairness jurisprudence, which has consistently foreclosed the State from benefiting—to the defendant’s detriment—from accidents of procedure that might otherwise operate to expose defendants to further or more harsh prosecution. See State v. Biegenwald (II), supra, 106 N.J. at 62 (defendants sentenced to death before the capital punishment act was amended to require proof beyond a reasonable doubt at sentencing must be resentenced, as a matter of fundamental fairness, under this more difficult standard of proof); State v. Godfrey, 139 N.J.Super. 135, 140 (App.Div.) (fact that State, with knowledge of facts, prosecuted under one statute and not another for which defendant could be prosecuted, bars re-prosecution under second statute as a matter of fundamental fairness), certif. denied, 73 N.J. 40 (1976).
I appreciate that the majority does not rest its holding on the applicability of the current amendment of c(4)(a), or on the inapplicability of constitutional ex post facto principles. This is entirely reasonable, because the 1985 amendment was made entirely prospective. See discussion supra at 528. Nevertheless, in light of the majority's use of the statute as amended to elucidate the statute as enacted, it is appropriate to emphasize that the spirit that animates ex post facto principles should strongly predispose the Court against the application of the current amended statute to the anticipated resentencing in this case. See State v. Correll, 148 Ariz. 468, 715 P.2d 721, 734 (1986) (application of amendment to capital statute providing that "defendant has been convicted of one or more homicides ... which were committed during the commission of the offense" held to violate ex post facto clause where amendment passed after commission of crime); State v. Jordan, 440 So2d 716, 719 (La.1983) (forbidding use of prior convictions as an aggravating circumstance because amendment sanctioning use of such evidence constituted substantive change in law and was enacted subsequent to commission of murder). The majority’s reading of the original provision expands the reach of the provision and achieves a result identical to the result that would obtain if thestatute were applied as amended, a result that, in my opinion, would violate ex nost tarto nrinrinles.
Richard F. BIEGENWALD, Appellant, v. William H. FAUVER, both individually and in his official capacity as the Commissioner of the New Jersey Department of Corrections; Howard L. Beyer, both individually and in his official capacity as the Warden of Trenton State Prison; and W. Cary Edwards, both individually and in his official capacity as the Attorney General of the State of New Jersey, and his predecessors.
No. 88-6002.
United States Court of Appeals, Third Circuit.
Submitted May 11, 1989.
Decided Aug. 11, 1989.
As Amended Aug. 18, 1989.
Richard F. Biegenwald, Trenton, N.J., pro se.
Mary C. Jacobson, Mary F. Rubinstein, Deputy Attys. Gen., Peter N. Perretti, Jr., Atty. Gen. of New Jersey, Trenton, N.J., for appellee.
Before COWEN, Circuit Judge, GARTH and SEITZ, Senior Circuit Judges.
Since the date of the submission of this case, Judge Seitz has taken senior status.
[OPINION BY COWEN, Circuit Judge. type=majority]
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
COWEN, Circuit Judge.
Richard Biegenwald, a prisoner in the New Jersey State prison system, asserts in this lawsuit that his constitutional rights were violated when the defendants continued to confine him on “death row” in Trenton State Prison after his sentence of death was vacated by the New Jersey Supreme Court. The district court abstained from adjudicating Biegenwald’s claims pending the resolution of certain state law issues in a state forum, applying the abstention doctrine announced in Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Biegenwald appeals from the order administratively terminating his federal lawsuit. Because we conclude that it was not appropriate to apply the Pullman abstention doctrine in this lawsuit, we will reverse the order of the district court and remand this case to that court for further proceedings in accordance with this opinion.
I.
Richard Biegenwald was convicted of first degree murder on December 7, 1983, and was sentenced to death for that crime on December 8, 1983. After receiving the sentence of death, Biegenwald was transferred from the general population in Trenton State Prison to the “Capital Sentence Unit,” a more restrictive prison unit for inmates facing sentences of death.
Biegenwald appealed his conviction and sentence, and on March 5, 1987, the New Jersey Supreme Court affirmed his conviction, but vacated the sentence of death, and ordered that Biegenwald be accorded a new sentencing hearing. According to Biegen-wald’s complaint, he submitted written requests to the defendants on June 16, 1987, August 1, 1987, and September 4, 1987, asking that he be transferred from the Capital Sentence Unit to the general population because his sentence of death had been vacated. The defendants did not respond to these requests, and Biegenwald filed this lawsuit on May 6, 1988, pursuant to 42 U.S.C. § 1983, seeking injunctive relief and monetary damages for the alleged constitutional deprivation arising from Biegenwald’s continued confinement in the Capital Sentence Unit.
The defendants transferred Biegenwald to the general prison population in August, 1988, which mooted his request for injunc-tive relief. He continues to press this lawsuit, however, seeking monetary damages for what he asserts was an unconstitutional confinement on New Jersey’s death row from March 5, 1987 until August 1988, a period of approximately one and one-half years. Defendants, in their brief before this Court, note that Biegenwald has since been resentenced to death, and is once again confined in the Capital Sentence Unit.
The district court referred the defendants’ motion for an order of abstention to a federal magistrate, who filed a report and recommendation recommending that the motion be granted on July 29, 1988. Biegenwald filed objections to the report and recommendation, and the district court, after considering Biegenwald’s objections, ordered on October 4, 1988, that his case be administratively terminated pending the “initiation and outcome of state court proceedings.” Biegenwald’s motion to amend or alter this order was denied by the district court by order entered November 29, 1988. Biegenwald filed a timely notice of appeal from this order on December 22, 1988. An order administratively terminating a lawsuit pending the resolution of state court proceedings is considered a final and appealable order, Hovsons, Inc. v. The Secretary of the Interior of the United States, 711 F.2d 1208, 1211 (3d Cir.1983) (citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)), and we therefore have jurisdiction over this appeal under 28 U.S.C. § 1291.
II.
As we have noted previously, “[ajbstention from the exercise of federal jurisdiction is, in all its forms, ‘the exception, not the rule.’ ” United Servs. Auto. Ass’n v. Muir, 792 F.2d 356, 360 (3d Cir.1986) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976)), cert. denied, 479 U.S. 1031, 107 S.Ct. 875, 93 L.Ed.2d 830 (1987). Indeed, we stated in Muir that abstention “is an extraordinary and narrow exception to the district court’s duty to adjudicate a controversy properly before it, justified only in the exceptional circumstances where resort to state proceedings clearly serves an important countervailing interest.” Id. at 360-61. Pullman abstention, which the defendants assert is appropriate here, instructs “that federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.” Id. at 361 (quoting Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984)).
We undertake what is essentially a two-step analysis when reviewing a district court’s abstention decision. The first step involves determining whether the facts and legal issues presented in the case bring the case within the “special circumstances” required for application of the abstention doctrine. D’Iorio v. County of Delaware, 592 F.2d 681, 686 (3d Cir.1978). For a claim that Pullman abstention is appropriate, three “special circumstances” must generally be present:
First, there must be uncertain issues of state law underlying the federal constitutional claims brought in federal court. Second, these state law issues must be amenable to an interpretation by the state courts that would obviate the need for or substantially narrow the scope of the adjudication of the constitutional claims. And third, it must appear that an erroneous decision of state law by the federal court would be disruptive of important state policies.
Id.
Once it is determined that the three “special circumstances” are present, the district court makes a discretionary determination whether abstention is appropriate in the particular case, based on the weight of these criteria, and other relevant factors, such as the potential impact on the parties of the delay resulting from a decision to abstain, or the availability of an adequate state procedure to have the state law questions resolved. See id,.; see also Muir, 792 F.2d at 362-63 (considering the potential impact of delay on an insurance company’s ability to conduct its business); 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4242, at 55-60 (1988) (noting that delay and the unavailability of an adequate state procedure are factors that can weigh against abstention).
Within this two-step framework, we apply different standards of review, depending upon the nature of the district court determination. We review the district court’s assessment of the first two “special circumstances,” namely whether state law is uncertain, and whether that law is amenable to an interpretation that would narrow or eliminate the constitutional issue, de novo, as these determinations are essentially legal in nature. D’Iorio, 592 F.2d at 686. The district court’s decision on the third “special circumstance,” namely whether an erroneous federal decision on the state law issue would be disruptive of important state policies, is also subject to appellate review. We have recognized that this review, however, is more “discretionary in character,” and we will génerally accord greater deference to the district court here if its appraisal is “adequately explained.” Id.
Once it is determined that the three “special circumstances” are present and the case falls within the ambit of the Pullman doctrine, “the remaining question is whether the trial judge abused his discretion in weighing the advantages and disadvantages of abstention and deciding to invoke the Pullman doctrine.” Id. (quoting Frederick L. v. Thomas, 578 F.2d 513, 517 (3d Cir.1978)).
III.
With these general principles in mind, we must assess whether the district court properly invoked Pullman abstention in this case.
A.
Biegenwald’s constitutional claim does turn on the construction of a state statute. He asserts that NJ.Stat.Ann. § 2C:49-6 (West Supp.1989) creates an expectation that an inmate who is not under sentence of death, or whose death sentence has been discharged, will not be housed in the Capital Sentence Unit. Thus, argues Biegen-wald, any inmate not meeting the state of New Jersey’s specific conditions for confining an inmate in the Capital Sentence Unit has a liberty interest in remaining with the general prison population, as opposed to being confined in the more restrictive Capital Sentence Unit. Biegenwald alleges that he was unconstitutionally denied this liberty interest without due process when the state continued to confine him in the Capital Sentence Unit following the New Jersey Supreme Court’s order vacating his sentence of death.
The statutory provision at issue, N.J. StatAnn. § 2C:49-6(a), states:
a. Within 10 days after issuance of a warrant as provided in section 5 of this act, the sheriff shall deliver the warrant, and also the person sentenced, if he is not already in the custody of the department, to the department. From the time of the delivery of the warrant and until the imposition of the punishment of death upon him, unless discharged from the sentence, the person shall be kept isolated from the general prison population in a designated State prison.
N.J.Stat.Ann. § 2C:49-6(a) (West Supp. 1989) (footnote omitted) (emphasis added).
Biegenwald asserts that when the New Jersey Supreme Court vacated his original sentence of death, he was “discharged from the sentence” as that term is used in N.J.Stat.Ann. § 2C:49-6(a). Bieg-enwald’s reading does appear to be closer to the plain meaning of the statute than the reading proffered by the defendants, who assert that an inmate is not “discharged from the sentence” unless he no longer faces the possibility of a death sentence.
Nevertheless, both readings are plausible. Since the statute is uncertain, and is “obviously susceptible” to a construction which would obviate the need for the district court to decide the federal constitutional issue presented in this case, see Muir, 792 F.2d at 361, we agree with the district court that the defendants have established the first two of the three “special circumstances” necessary to bring a case within the ambit of Pullman abstention.
We have significantly more difficulty, however, with the district court’s finding of the third special circumstance, i.e. that an erroneous construction of the words “discharged from the sentence” would be disruptive of important state policies. The defendants argue that an erroneous decision on this issue would “be detrimental and disruptive to the State Corrections process.” Appellees’ Brief at 12. The district judge found that an incorrect decision would “disrupt important state interests in the safe operation of the prison.” District Court opinion at 2.
Presumably, this disruption would occur because the state would not be permitted to confine persons who had been sentenced to death, but whose sentences were vacated upon appeal, in the Capital Sentence Unit. The appellees assert that “[segregating death row prisoners is done to increase security to prevent escapes of the most dangerous prisoners, and to reduce friction among inmates.” Appellees’ Brief at 12.
While this argument has a certain superficial appeal, any merit it might have is belied by the events of this case. The defendants transferred Biegenwald (and other similarly situated prisoners) from the Capital Sentence Unit to the general population in August, 1988. They were not under court order to transfer these prisoners, but instead did so on their own initiative, presumably for policy reasons not disclosed to this Court (or the district court). It seems disingenuous, to say the least, for the defendants to argue, on the one hand, that important state policies would be disrupted if a federal court were to hold that prisoners whose death sentences have been vacated should be housed in the general population, while they adopt a policy of housing these prisoners in the general population on their own initiative.
Additionally, we fail to see any practical distinction between a prisoner whose death sentence has been vacated, and who is awaiting resentencing, and a prisoner who has been convicted of a crime for which he may receive a sentence of death, and who has not yet been sentenced. Both would appear to present similar security and management challenges. New Jersey’s statutory scheme, however, does not provide that an inmate awaiting initial sentencing be housed in the Capital Sentence Unit, even if it has been convicted of a capital crime and faces a possible death sentence.
Finally, a brief review of the regulations governing New Jersey’s prisons reveals that the defendants have a variety of mechanisms available to segregate prisoners who present security or management concerns. See N.J.Admin.Code tit. 10A, § 5-2 (Management Control Unit); id. at § 5-3 (Administrative Segregation); id. at § 5-5 (Protective Custody); id. at § 5-6 (Transitional Protective Custody). The availability of these other mechanisms to deal with the security and management problems posed by inmates convicted of serious crimes, or who pose disciplinary or other security problems also undermines the defendants’ assertion that important state policies would be disrupted by an erroneous federal court construction of the words “discharged from the sentence.”
Although we generally give greater deference to a district court’s assessment of whether an erroneous decision would interfere with important state policies, we find that in this case the district court erred when it found this third “special circumstance” to be present in this case. Where an erroneous decision would not interfere with important state policies, Pullman abstention is inappropriate. We will reverse the district court’s order administratively terminating Biegenwald’s case.
B.
Even if all three special circumstances were present, however, we also find that the advantages of abstaining in this case are significantly outweighed by the disadvantages. Given the posture of the case as it is now before us, a second and independent ground for reversal is the district court’s erroneous discretionary determination that abstention was appropriate.
Two additional factors weigh heavily against invoking abstention here. Most significantly, the inevitable delay engendered by requiring Biegenwald to seek a state court decision before he can adjudicate the merits of his constitutional claim would likely destroy any possibility of a remedy for those alleged violations. Bieg-enwald is, once again, facing a death sentence. There is a possibility that by the time this dispute winds its way through the state court system, returns to the district court, and is finally brought to trial, Bieg-enwald will no longer be alive. A just resolution of this case calls for Biegenwald being alive in order to testify as to any pain and mental anguish he suffered by reason of his allegedly wrongful confinement, as well as the requests that he made and responses he received relating to the continuing confinement in the Capital Sentence Unit.
Biegenwald had not been resentenced to death at the time of the district court’s abstention order, and we do not say that the district court abused its discretion in balancing the advantages and disadvantages of abstention when the impending death sentence was not a consideration. The defendants, however, note that Biegen-wald had been resentenced to death in their brief before this Court, and we would be remiss were we to ignore the impact of this event on the issue before us.
A second factor weighing against abstention is the uncertainty of Biegenwald’s ability to obtain a state court ruling on the proper construction of the words “discharged from the sentence.” New Jersey does not have a procedure by which a federal court can certify a state law question to the state system, and the New Jersey courts disfavor advisory opinions. See New Jersey Ass’n for Retarded Citizens, Inc. v. New Jersey Dep’t of Human Servs., 89 N.J. 234, 241, 445 A.2d 704, 707 (1982) (“We will not render advisory opinions or function in the abstract”); Civil Serv. Comm’n of New Jersey v. Senate of New Jersey, 165 N.J.Super. 144, 148, 397 A.2d 1098, 1101 (App.Div.) (New Jersey declaratory judgment law “is not to be used to obtain advisory opinions.” (quoting Lucky Calendar Co. v. Cohen, 36 N.J.Super. 300, 304, 115 A.2d 603, 605 (Law Div.1955), rev’d, 19 N.J. 399, 117 A.2d 487 (1955), reversal aff'd on rehearing, 20 N.J. 451, 454, 120 A.2d 107, 108 (1956))), certif. denied, 81 N.J. 266, 405 A.2d 811 (1979). Since Biegenwald has the right to a federal court determination of the merits of his constitutional claim, a state court asked to construe the words “discharged from the sentence” might well conclude that to issue an order stating its construction would be akin to issuing an advisory opinion.
Given the uncertain availability of a state forum in which to adjudicate this issue, and the significant possibility that the delay engendered by abstention would effectively destroy any remedy for the alleged constitutional violation, we find that the severe imbalance between the significant disadvantages and slight advantages of abstaining in this case provide an independent basis for reversing the district court’s order of abstention.
IV.
For the reasons stated in this opinion, we will reverse the district court order administratively terminating this case and remand the case to that court for further proceedings in accordance with this opinion.
Biegenwald does not contend in this lawsuit that his present confinement in the Capital Sentence Unit is unlawful.
Biegenwald also argues that the administrative regulations adopted by New Jersey pursuant to this statutory provision support his interpretation. In relevant part, the regulations state: SUBCHAPTER 4. CAPITAL SENTENCE UNIT (C.S.U.) 10A:5-4.1 ScopeH Persons sentenced to death pursuant to N.J. S.A. 2C:ll-3 shall be assigned to the Capital Sentence Unit (C.S.U.) until such time that the execution is carried out or in the alternative, that the sentence is commuted or otherwise changed to a lesser penalty. 10A:5-4.2 Establishment of the Capital Sentence Unit (C.S.U.)H (a) The Commissioner shall designate a specific housing unit at New Jersey State Prison to be utilized solely for inmates under court imposed death sentence. There shall be no commingling of inmates in the Capital Sentence Unit (C.S.U.) with those in general population at New Jersey State Prison. (b) Female inmates under death sentence shall be housed in a separate section of the C.S.U. designated by the Commissioner. (c) Access to inmates in the C.S.U. shall be only as set forth in this subchapter and the post orders promulgated in connection herewith. N.J. Admin. Code tit. 10A, §§ 5-4.1 & 5-4.2 (Supp.1989) (emphasis added). We agree with Biegenwald that regulation 10A:5-4.2, which requires that the Capital Sentence Unit be used "solely for inmates under court imposed death sentence," does support his interpretation of N.J.Stat.Ann. 2C:49-6. Regulation 10A:5-4.1, however, which requires that inmates sentenced to death remain in the Capital Sentence Unit until "the sentence is commuted or otherwise changed to a lesser penalty," is more ambiguous. Given that “an administrative interpretation of a facially ambiguous state statute will not remove the ambiguity, for Pullman purposes," Muir, 792 F.2d at 362, we do not find these New Jersey administrative regulations to be of much assistance in our analysis of N.J.S.A. 2C:49-6.
Since the statute here is "obviously susceptible” to a construction which would obviate the need to decide the federal constitutional issue, we do not reach the issue of whether a lesser showing might be sufficient to invoke Pullman abstention. See 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4242, at 42-44 (1988) (noting that the Supreme Court has, at various times, applied "obviously susceptible," "fairly susceptible," and “bare possibility" standards when assessing how uncertain state law must be to invoke Pullman abstention).
This conclusion is even more compelling when we factor in the weakness of the defendants’ assertion that an erroneous construction of the words "discharged from the sentence” would interfere with important state policies. [OPINION BY SEITZ, Circuit Judge, type=concurrence] SEITZ, Circuit Judge, concurring. Although I agree with the result reached by Judge Cowen, I write separately because I believe the judgment can be reversed on a narrow ground. Pullman abstention serves no purpose if the injured party may not be able to obtain an adjudication of the merits of the state issue that forms the basis for the district court’s decision to abstain. See C. Wright, A. Miller & E. Cooper, 17A Federal Practice and Procedure § 4242 at 57. Otherwise stated, if there is substantial doubt that the plaintiff could obtain a construction of the New Jersey statute in question in any appropriate state proceeding, the district court should not have abstained. In my view, it is very doubtful that the plaintiff could maintain a claim against the defendants in their official capacities because of his failure to comply with the notice provisions in the New Jersey Tort Claims Act. See NJSA 59:8-8. This is so apart from any statute of limitations problem. Any state action against these defendants personally might well be met with a qualified immunity defense that could result in a determination that would not resolve the critical state law issue here involved. See NJSA 59:3-1, et seq., and in particular NJSA 59:3-3 which provides that “[a] public employee is not liable if he acts in good faith in the execution and enforcement of any law.” See also Martin v. Township of Rochelle Park, 144 N.J.Super. 216, 365 A.2d 197, 200 (1976). I think this same doubt would extend to an attempt to secure a declaratory judgment. Since there is a very serious doubt that plaintiff could initiate a state law action that would result in a construction of NJSA 2C:49-6, I vote to reverse the district court’s abstention order. Needless to say, this action should be a priority matter in the district court. [OPINION BY GARTH, Circuit Judge, type=dissent] GARTH, Circuit Judge, dissenting: The issue that divides this court is whether Judge Thompson of the New Jersey District Court abused her discretion by abstaining in order that the New Jersey state courts could first determine if, as a matter of state law, a “discharged sentence” as that term is used in N.J.S.A. 2C:49-6, includes a vacated sentence subject to an order of resentencing. In the two opinions comprising the majority of this panel, this court has now held: 1) the district court judge did not err in determining that the term “discharged from the sentence” as it appears in N.J. S.A. 2C:49-6(a) constituted an uncertain and unsettled issue of state law; and that 2) this state law issue, if resolved by the state courts, would obviate the need for adjudicating a federal constitutional claim. (See Opinion, Cowen J., page 782: “We agree with the district court that the defendants have established the first two of the three ‘special circumstances’ necessary to bring a case within the ambit of Pullman abstention.”) However, Judge Cowen then goes on to hold that the district court erred in deciding that an incorrect decision of state law made by it would disrupt important state policies. Id. It is here that I part company with my two colleagues. I. I agree that the issue giving rise to this appeal satisfies the first two criteria for Pullman abstention; that is: (1) it presents an unsettled question of state law which the state courts have yet to address, and (2) an interpretation by the state courts would obviate the need to adjudicate Bieg-enwald’s claims. A. Biegenwald maintains that “discharged” should be interpreted to include all prisoners who, like Biegenwald, have had sentences vacated and who are awaiting resen-tencing. The State, on the other hand, contends that “discharged” has a different and much more narrow meaning. The State claims that the existence of an interim period between sentencings does not mandate the transfer of first degree murder inmates into the general population of the prison. According to the State, the term “discharged” implies a final and irreversible act and, because the vacation of a sentence subject to resentencing is not a final disposition and still leaves open the possibility of the reimposition of the death sentence, the State claims that Biegenwald has not had his sentence discharged. These two opposing views make it clear, as the majority of the court and I agree, that an unsettled issue of state law underlies Biegenwald’s claim. B. The second prong of the Pullman criteria requires that resolution of the “unsettled issue of state law” by state courts eliminate or narrow the constitutional claim before the federal court. Once again, the majority and I are in agreement because we are in accord that abstention is clearly appropriate where, as here, the resolution of the unsettled issue of state law by a state court, i.e. what is meant by a “discharged sentence”, would allow the federal court to avoid an unnecessary constitutional adjudication. So far, the majority and I see eye to eye. C. Where we disagree, however, is with respect to the third Pullman prong. This criterion requires a determination that an erroneous decision of state law by the federal court would be disruptive of important state policies. See D'Iorio v. County of Delaware, 592 F.2d 681 (3d Cir.1978). Judge Thompson held that if she were to make an incorrect decision in interpreting N.J.S.A. 2C:49-6 it would disrupt important state interests in the safe operation of the prison. Judge Thompson obviously based that determination on the State’s position that: There can be no question that the State acting through its police power is legitimately and vitally concerned with protecting the security, safety and well being of its prisons, the prisoners and the prison employees therein. Segregating death row prisoners is done to increase security to prevent escapes of the most dangerous prisoners, and to reduce friction among inmates. Since the State has the strong interest in safeguarding its prison population, such interest being grounded in the inherent police power of the State, appellees submit that the impact of an erroneous federal interpretation of a state statute could be detrimental and disruptive to the State Corrections process. (State’s Brief, p. 12) Significantly, neither Judge Cowen nor Judge Seitz discuss New Jersey’s vital interest in the maintenance, conduct and administration of its prison system. I have previously referred to a state’s core interest in its penal system in my dissenting opinion in Harris v. Pemsley, 755 F.2d 338, 349 (3d Cir.1985). I said there, what I believe to be equally relevant here: “I can think of no more weighty, vital or intimate state interests than the administration of a state’s penological system. Indeed, the Supreme Court has given the federal courts unambiguous instructions to pay great deference to the States’ weighty interest in administering their own prison systems.” See generally Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The Supreme Court has also stated: Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the Legislative and Executive Branches of Government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in Martinez, additional reason to accord deference to the appropriate prison authorities. See id., at 405, 94 S.Ct., at 1807. (Emphasis added) See Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). In Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224, the Supreme Court recognized the critical interest that a state has in its prison system, stating that “[T]he case at hand arises in the context of [California] prisons. One of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task.” Despite these teachings, neither Judge Cowen’s opinion nor Judge Seitz’ gives weight to New Jersey’s interest in its own prison operation. I find this hard to understand because it seems obvious to me that an erroneous interpretation of a New Jersey statute by a federal court could well have a serious effect on the Department of Corrections’ ability to maintain, monitor and safely house inmates who have been sentenced to death. Indeed, as the State claims, it might even result in escapes or attacks on other prison inmates by inmates who were released, perhaps temporarily, from death row pending their resentencing. Moreover, such prisoners may feel that they have less to lose than other prisoners if they engage in violent behavior or attempt escape while in the general population. Thus, it appears to me, even though my colleagues do not agree, that the third prong of Pullman has been more than satisfied. There can be little question that the state has a vital interest in its penal policies, and that an erroneous interpretation by a federal court of a penal statute would disrupt the state’s administration of its prisons. “No matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination.” Pullman, 312 U.S. at 499, 61 S.Ct. at 644. It was in such a context that the Supreme Court cautioned that a federal court ought not to intrude on the final authority of a state court to interpret doubtful regulatory law of the state. Id. at 500, 61 S.Ct. at 645. Thus, I submit that this case is a classic instance of a case meeting all three of the “special circumstances” required for the application of Pullman abstention. II. A. Judge Cowen, however, argues that New Jersey state prison policies would not be disrupted even by an incorrect federal construction of N.J.S.A. 2C:49-6 because, he points out, Biegenwald at one point had been transferred to the prison’s general population during the time that he was still under a death sentence. (Opinion, Cowen, J., 752) I suggest that this single circumstance, which forms the predicate for this argument and the reversal of Judge Thompson’s abstention ruling, cannot withstand scrutiny and cannot affect the abstention order of the district court. The fact that a prison administrator undertook to transfer Biegenwald from death row to the general prison population at a time before Biegenwald’s death sentence had been vacated, can in no way diminish the force of the state’s policies or interests, particularly in the absence of anything in the record to explain why this transfer was made. I point out that because the record is silent, we cannot know the reasons for Biegenwald’s transfer at the time that it was made. Thus, we do not know the conditions that then existed in “death row” or in the prison generally at that time nor what prompted this particular event to occur. In the absence of a record explanation, I cannot accept Judge Cowen’s contention that one unexplained prison event is sufficient to reverse Judge Thompson’s order of abstention. B. Judge Cowen, in holding that the district court abused its discretion, advances still another argument as to why an incorrect interpretation on Judge Thompson’s part would not disrupt important state interests. In his view, there is no distinction between a prisoner whose death sentence has been vacated and who is awaiting resentencing, and a prisoner who has been convicted of a crime for which he may receive a sentence of death but who has not yet been sentenced. Id, 752. I suggest that it is not for us to decide whether there is a practical distinction between the sentencing status of such prisoners. Whatever differences in status may exist are for the state authorities to assess and weigh, and not for us. Similarly, those New Jersey statutes or regulations dealing with administrative segregation and protective custody to which Judge Cowen refers cannot be deemed to answer the question presented here as to whether an erroneous interpretation of New Jersey’s penal code by a federal court would disrupt important state interests. A state may choose many means of administering, protecting, securing and maintaining its prisons, none of which are exclusive of the others. Thus, there is nothing unique or unusual for New Jersey to have segregated death row inhabitants in a Capital Sentence Unit and at the same time provide for other and additional security and protective measures. The mere presence of such statutes and regulations does not give us license to intrude on the state authorities or the state interests in managing the state’s own prison affairs. III. The other arguments mounted by Judges Cowen and Seitz in holding that abstention was inappropriate and that Judge Thompson abused her discretion in ordering abstention, are even less persuasive than the arguments to which I have referred above. A. Judge Cowen makes two additional points which, in his view, weigh against invoking abstention. First, he calls attention to “the inevitable delay engendered by requiring Biegenwald to seek a state court decision.” Opinion, Cowen, J., 753. He points out that Biegenwald may no longer be living by the time this dispute winds its way through the state court system. But in this respect, Biegenwald is no different than any other plaintiff in the federal court where the federal court abstains. None have a guaranty or assurance as to how long they will live. I note that Biegenwald has yet to attack his new death penalty in the New Jersey Supreme Court. Undoubtedly, if he fails there, Biegenwald will then resort to habeas proceedings through the federal courts up to and including the Supreme Court. While none of us can predict the length of time that such proceedings may take, it is more than reasonable to assume that any state court proceedings brought by Biegenwald would long since have been resolved before Biegenwald’s death penalty fate was ultimately determined by the courts. Judge Cowen does admit that the district court’s abstention order was entered before Biegenwald was resentenced to death, but he dismisses that fact by claiming that “[w]e would be remiss were we to ignore the impact of this event [the new death sentence] on the issue before us. Id. at 753. It has always been my impression that we judge the proper exercise of discretion at the time that the discretion was exercised. When Judge Thompson entered her order, Biegenwald was still awaiting resentencing. I do not understand how we can charge her with abusing her discretion by not taking into account the fact that Biegenwald would once again receive a death sentence and would therefore not be alive to testify in any state court proceeding, a factor which in any event I find irrelevant in the Pullman calculus. B. Judge Cowen’s second argument weighing against abstention is his claim that New Jersey does not have a procedure whereby a federal court can certify a state law question to the state system. I agree. New Jersey does not have such a procedure. This does not mean, however, that Biegenwald could not commence either (1) a § 1983 proceeding in state court similar to the one he has brought in federal court or (2) an action for declaratory relief in the New Jersey Superior Court under the Uniform Declaratory Judgment Law, N.J.S.A. 2A:16-50, et seq., particularly, N.J.S.A. 2A:16-53. Pursuant to this law, appellant may “obtain a declaration of rights, status or other legal relations” under N.J.S.A. 2C:49-6. See N.J.S.A. 2A:16-53. “[A]fter obtaining the authoritative state court construction for which the court abstained,” appellant may then, as of right, return to the district court for a final determination of his § 1983 claims. NAACP v. Button, 371 U.S. 415, 427, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963). Any such action would obviously result in a ruling on the proper construction of the words “discharged from the sentence” as they appear in N.J.S.A. 2C:49-6. C. Judge Seitz, in his separate opinion, argues that he believes the district court abused her discretion in entering an abstention order because he has substantial doubt that Biegenwald could obtain a construction of the New Jersey statute in question in any appropriate state proceeding. In this connection, he refers to Biegenwald’s failure to comply with the notice provisions of the New Jersey Tort Claims Act and he calls attention to the fact that the statute of limitations may bar a claim by Biegen-wald in New Jersey courts. However, the New Jersey Supreme Court has held that the filing of a complaint in federal court tolls the two year statute of limitations for personal injury actions where the state court action would otherwise be barred. It so held in a case where the federal court lacked subject matter jurisdiction, a far more egregious circumstance than the situation presented here. Galligan v. Westfield Centre Service, Inc., 82 N.J. 188; 412 A.2d 122 (1980). Indeed, the Galligan holding was acknowledged in a case in this court where both Judges Cowen and Seitz were on the panel. In Young v. Clantech, Inc., 863 F.2d 300, 301 (3d Cir.1988), this court distinguished between a complaint filed in federál court which lacked personal jurisdiction and therefore would not be tolled by New Jersey’s statute, from a Galligan complaint which lacked subject matter jurisdiction and was subject to tolling. This being so, I know of no reason why any action (such as a § 1983 action or an action for declaratory relief as discussed above) could not be prosecuted in New Jersey’s courts. D. As to Judge Seitz’ second argument against abstention where he contends that Biegenwald might be met with a qualified immunity defense that would result in not resolving the critical state law issue involved here, I can only surmise that such a defense would be equally available to the State if Biegenwald’s suit were to proceed before Judge Thompson. Moreover, we have dealt with a problem similar to the problem posed by Judge Seitz in Davidson v. O’Lone, 752 F.2d 817 (3d Cir.1984) (in banc), aff'd sub nom., Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1985), where the possibility of the defendants’ immunity did not prevent our in banc court from holding that mere negligence did not give rise to a § 1983 claim brought in federal court, even though New Jersey law provides no remedy for the plaintiff. Moreover, even if we were to accept Judge Seitz’ argument (and I do not) that we must look to the existence of a potential immunity defense in state law to determine federal jurisdiction, the logical extension of such an argument would require that a federal district court would be obliged to canvas every possible or potential defense that might be raised by a defendant in a state court action before it could issue an abstention order. I know of no case law which would place such an onerous burden on the district court or which would require anything approaching such an exercise. As I understand Judge Seitz’ argument, it would not only require the identification of such a defense by the district court judge, but it would also require a prediction by the district court judge as to whether such a defense would succeed. If it would, federal jurisdiction must be entertained; if it would not, the district court could abstain. In my view, once the three special circumstances of Pullman have been satisfied and the district court has properly exercised its discretion and has entered an appropriate abstention order, there are no other factors to be considered which should defeat that ruling. Abstention cannot depend on the existence of a particular state procedure or the availability of a state remedy. If it were otherwise, it would be the state which would be setting the standards for and determining the existence of federal jurisdiction. Of course, in this case, Biegenwald has available to him actions which he can prosecute in state court. It was his choice to file his action in federal court in the first instance, and having done so, he should not be heard to complain about the paucity of state court procedures and remedies. IV. I am satisfied that the interests which Judge Thompson identified as important state interests which should not be disrupted by the possibility of an erroneous federal court interpretation, present a paradigmatic case for abstention. None of the reasons advanced by either Judge Seitz or Judge Cowen persuade me, nor I suggest should persuade others, that the district court abused its discretion. Indeed, I am concerned that by giving credence to such arguments the law of abstention as it has evolved in this circuit may become so distorted as to encourage, rather than discourage, federal resolution of all cases where state law is uncertain and a determination by a state court would obviate the need for a constitutional adjudication. The prospect that we may now be in the process of glossing established abstention doctrine by adding to it consideration of additional factors, such as how long a plaintiff may live, and does the state provide effective remedies, is in my opinion a subversion of the principles announced in Pullman. Because Judge Thompson properly considered and applied the criterion for abstention and did not, in my opinion, abuse her discretion in abstaining, I would affirm Judge Thompson’s order administratively terminating Biegenwald’s action pending the initiation and outcome of state court proceedings. Because the other two members of this panel have determined otherwise, I dissent. .Judge Seitz' opinion does not address the three-pronged criteria of Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). However, by concurring with Judge Cowen’s holding, I assume that he agrees with Judge Cowen’s Pullman analysis.
Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).
District Court Opinion at 2.
I suggest that, if for no other reason, Biegen-wald’s choice of a federal action and his faitee to comply with New Jersey statutory mandates, cannot leave him in a better position in federal court than he would have found himself in had he maintained his action in state court.
Judge Seitz dissented in Davidson. See Davidson v. O'Lone, 752 F.2d 817 at 833 (3d Cir.1984).
594 A.2d 172
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD BIEGENWALD, DEFENDANT-APPELLANT.
Argued September 11, 1990
Decided August 8, 1991.
James J. Smith, Jr., Deputy Public Defender, and Stephen A. Caruso, Assistant Deputy Public Defender, argued the cause for appellant (Wilfredo Caraballo, Public Defender, attorney).
Mark P. Stalford, Assistant Prosecutor, argued the cause for respondent (John Kaye, Monmouth County Prosecutor, attorney).
Cherrie Madden Black, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Robert J. Del Tufo, Attorney General, attorney).
[OPINION BY CLIFFORD, J. type=majority]
The judgment of the Court was delivered by
CLIFFORD, J.
In State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987) (Biegenwald II), we affirmed Richard Biegenwald’s conviction for the murder of Anna Olesiewicz but reversed his sentence of death and remanded the case for a new sentencing proceeding. A second jury having returned a death-penalty verdict, the trial court sentenced defendant to death. Defendant appeals directly to this Court as of right. R. 2:2-1(a)(3). Because the death-qualification process of the voir dire was inadequate to ensure defendant’s constitutional right to trial by a “fair and impartial jury” and therefore in conflict with the principles set forth in this Court’s opinion in State v. Williams, 113 N.J. 393, 408-27, 550 A.2d 1172 (1988) (Williams II), we vacate defendant’s sentence and remand.
We believe some preliminary observations appropriate. The fundamental goal in jury selection is to make certain each juror will be willing and able to follow — to obey — the court’s instructions. As applied in this case that principle requires that each juror be willing and able to consider and weigh all of the evidence on aggravating and mitigating factors before reaching his or her conclusions. Defendant has killed twice before and has been convicted of other murders twice before. We are not sure, under those circumstances, how many people could fairly sit on a jury in this case. The law, however, requires jurors who would at least listen to the evidence of mitigating factors and who would conscientiously weigh that evidence in deciding the appropriate punishment. A fairly chosen jury might conclude, either unanimously or by split vote, that life imprisonment should be the punishment. In fact, a jury did so once before in another murder prosecution against this defendant.
Despite our clear directions in Williams II, and despite the prosecution’s agreement with defendant’s position, the trial court would not allow Biegenwald’s counsel to ask the simple question whether the potential juror, knowing that this defendant had previously committed two murders, would be able to consider any other evidence, or whether those facts would result in an automatic death-penalty vote by that juror. The trial court’s complex justification for its refusal masks the simplicity of the question’s purpose: to find out if the juror would automatically impose the death penalty, as many would, regardless of the court’s instructions on other evidence, once he or she knew of those other murders.
Among the rights that Biegenwald shares with every capital-murder defendant is the right to be executed only after a verdict of a jury that has considered all of the evidence. We do not know if he was accorded that right.
We do not seek a jury that will be one whit less revulsed than the rest of us are by this serial senseless murderer. We insist only that the jury be able, no matter how severe its reaction to the aggravating factors, at least to consider the mitigating factors and weigh them in accordance with the court’s instructions. Today’s decision rests on a proposition that is at once simple and at the very heart of our criminal-justice system: even this multiple murderer is entitled to a fair trial, one that includes a jury-selection process that ensures that the jury will decide his fate according to law.
I
PACTS AND PROCEDURAL HISTORY
The facts and prior procedural history of this case are fully set forth in Biegenwald II, supra, 106 N.J. at 18-25, 524 A.2d 130, and State v. Biegenwald, 110 N.J. 521, 525-27, 542 A.2d 442 (1988) (Biegenwald III). Thus we limit our recitation to the facts and history relevant to this appeal.
On August 27, 1982, eighteen-year-old Anna Olesiewicz and a friend, D.H., drove from Camden to the Asbury Park area. While at the Asbury Park boardwalk, D.H. left Olesiewicz to use a bathroom. When D.H. returned, she was unable to find Olesiewicz and eventually proceeded alone to her uncle’s home in Neptune City. The following morning, not having heard from Olesiewicz, D.H. filed a missing-person report.
On January 14, 1983, a skeleton later identified as that of Anna Olesiewicz was discovered in a vacant lot in Ocean Township. There were four bullet holes in the skull. Testimony at the guilt-phase trial indicated that the bullet wounds had been the cause of death. The tissue that remained was inadequate for purposes of blood-alcohol or chemical tests.
One week after the skeleton was discovered, Theresa Smith disclosed to the police that Biegenwald was involved in the shooting. Smith had lived with Biegenwald and his wife, Diane, from June through October 1982 in a multi-apartment building in Asbury Park. Smith reported that she and defendant had become friendly and that she had become defendant’s protege. Defendant had encouraged her to find and kill a victim to prove her toughness. On the night of Olesiewicz’s disappearance, Smith had been driving around shore towns with a co-worker, whom she had planned to kill in keeping with a scheme she had formulated with Biegenwald. Fortunately for her co-worker, Smith lost her resolve, informed defendant by telephone that she could not proceed as arranged, and returned to the Biegenwald apartment to sleep.
Smith claimed that Biegenwald had awakened her that night for reasons she could not recall. Before returning to sleep Smith looked out a window and saw a “shadow of a body” sitting in the car that Biegenwald had given to her. As recounted in Biegenwald II,
[a]t the end of the next day Biegenwald took Smith into the garage where he lifted a mattress to show Smith a female body in unzipped jeans, a dark shirt and no shoes. Smith did not see the face because a large green plastic bag covered the head and was secured around the neck. Biegenwald asked Smith to touch the body — to “pick her leg up” and tell him how it felt. The defendant told Smith he had shot the victim in the head after meeting her on the boardwalk, telling her he had marijuana, and taking her back to the house. Biegenwald told Smith that Olesiewicz had been intended to be Smith’s first victim, but when he had tried to waken Smith while the victim was still alive, Smith would not get up. [106 N.J. at 19, 524 A.2d 130.]
According to Smith, Biegenwald removed from the victim’s finger a black and gold ring and later gave it to Smith. The next day Biegenwald and Dherran Fitzgerald, a tenant in the same building, disposed of the body in the vacant lot in Ocean Township.
On the basis of Smith’s statement, the police arrested Biegenwald, his wife, Diane, and Fitzgerald. They found the murder weapon in Fitzgerald’s apartment. The only ammunition found in the house that fit the murder weapon was located in a bag near the basement room in which Biegenwald slept. The black and gold ring — later identified as having belonged to Olesiewicz — was discovered in Diane’s jewelry box.
A jury found Biegenwald guilty of knowing and purposeful murder and sentenced him to death. This Court affirmed defendant’s guilt-phase conviction but reversed the sentence because of an erroneous charge to the jury concerning the weighing of aggravating and mitigating factors. 106 N.J. at 18, 524 A.2d 130. We remanded for a new sentencing proceeding. Ibid.
In advance of the new proceeding, the court denied a motion of one of defendant’s attorneys to be relieved as counsel. The court likewise denied the State’s motion for an order allowing Biegenwald’s conviction for the murder of William Ward to be admitted as additional evidence of an aggravating factor, but this Court ultimately granted that request. (Biegenwald III, supra, 110 N.J. 521, 542 A.2d 442 (distinguishing State v. Biegenwald, 96 N.J. 630, 477 A.2d 318 (Biegenwald I), clarified, 97 N.J. 666, 483 A.2d 184 (1984)), based on an interim amendment of the murder statute and different status of the conviction at the time of its intended use). Finally, defendant moved to charge the jury separately on six proffered bases for establishing the catch-all mitigating factor, see N.J.S.A. 2C:11-3c(5)(h), essentially requesting that the jury be told to consider each basis for applying that factor as an independent mitigating factor. The court denied that motion as well.
Jury selection commenced on January 17, 1989, and lasted three days. On the first day, the trial court delivered a general orientation to prospective jurors. Following hardship excusáis, a pool of eighty-eight venirepersons remained. The court told the members of the venire about the Biegenwald resentencing proceeding, informing them that Biegenwald had been convicted of murder and that the Legislature had designed a system under which the sentence for a capital-murder defendant is determined in a separate proceeding from that for the determination of guilt. It explained that the proceeding for which they were being considered as jurors was solely for the purpose of sentencing. The court described in general terms the function of aggravating and mitigating factors and the process for weighing those factors. It also informed the prospective jurors of the limited options for sentencing, and instructed them several times to avoid discussing the case or viewing or reading media reports concerning it.
Before proceeding to individual voir dire, the court had prospective jurors complete a questionnaire that included questions concerning prior knowledge of or contact with defendant, the anticipated witnesses, the attorneys, and knowledge of a murder case involving defendant. The questionnaire did not inquire about the venireperson’s views on the death penalty.
Individual voir dire commenced with the court asking questions based on the venireperson’s responses to the questionnaire and concerning his or her views on the death penalty, ability to weigh the evidence in support of aggravating and mitigating factors, and exposure to media coverage. After the initial questioning, counsel were permitted to pursue, mostly through the court, further matters raised by a prospective juror’s responses. Individual voir dire included questioning of sixty-four jurors. The court excused twenty-six venirepersons for cause — eleven based on their knowledge of Biegenwald’s criminal conduct — and released three because the panel was complete. ' Defense counsel exercised thirteen peremptory challenges and the prosecutor exercised eight. Neither party exhausted its allotment.
The evidentiary phase of the sentencing proceeding lasted less than a full day. The State sought to prove two aggravating factors: that defendant had been convicted of another murder, N.J.S.A. 2C:11-3.c(4)(a), and that the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim,” N.J.S.A. 2C:11-3c(4)(c). Defendant attempted to establish the existence of three mitigating factors: that “defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution,” N.J.S.A. 2C:11-3c(5)(a); that “defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution,” N.J.S.A. 2C:11-3c(5)(d); and the catch-all factor, N.J.S.A. 2C:11-3c(5)(h) (“Any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.”).
In support of aggravating factor c(4)(a), the State introduced into evidence two Judgments of Conviction for murder, one from 1959 and the other from 1984. The 1984 conviction was for the 1982 murder of William Ward.
To prove aggravating factor c(4)(c), the State called four witnesses, all of whom had testified during the guilt-phase trial and original sentencing proceeding.
D.H. Aliano recounted the trip to Asbury Park, leaving Olesiewicz on the boardwalk, and returning to find her missing. On cross-examination, defense counsel established that the victim occasionally smoked marijuana, took quaaludes, and used cocaine.
Theresa Smith also testified consistent with her initial statement to the police. The prosecution asked Smith what defendant had told her about why he had shot the woman in the head. Smith answered that she and defendant had discussed it and that defendant “just shot her, just felt like shooting her.” She also testified that defendant had wanted her to kill someone for him: “He told me that he picked this girl up, it was supposed to be my victim and I wouldn’t wake up so he killed her.” On cross-examination Smith said that she and defendant had had a conversation late on the night of the murder, that during the conversation she had seen someone in the car parked in the driveway, and that defendant had told her that he had smoked marijuana in the car. Defense counsel also questioned Smith on defendant’s status as a parolee in August 1982 and his concern about avoiding returning to prison.
A Monmouth County Prosecutor’s Office investigator testified about the location of Olesiewicz’s body when found in January 1983. Finally, the Monmouth County Medical Examiner confirmed that the cause of the victim’s death had been multiple gunshot wounds to the head. On cross-examination the medical examiner stated that he found no indications that Olesiewiez had been tortured or physically abused while still alive.
The defense introduced only the videotaped testimony of Dr. Azariah Eshkenazi, a forensic psychiatrist who had testified during the original sentencing proceeding in 1983, and whose testimony had been videotaped. Thus, Dr. Eshkenazi’s testimony in the proceeding under review was identical to his testimony in the earlier proceeding. The same tape had also been used in the sentencing phase of defendant’s trial for the Ward murder.
The doctor testified that he had visited defendant three times in 1983 for a total of eight or nine hours and had reviewed records containing defendant’s medical history. He indicated that defendant had suffered abuse as a child and had been institutionalized at the age of eight. Defendant had been diagnosed as schizophrenic, had been subjected to electro-convulsive shock treatments on twenty occasions, and had been treated for headaches by being constricted in a bed under tight, wet, cold sheets. In those instances defendant had urinated on himself to keep warm. Dr. Eshkenazi diagnosed defendant as suffering from a severe personality disorder known as antisocial personality with paranoid traits. He concluded that at the time of the murder, defendant had “lacked the capacity to appreciate the wrongfulness of his act emotionally, though not intellectually.” The doctor explained: “Intellectually he knew what he was doing * * *, but he certainly did not appreciate that it’s wrong to kill somebody.” He stated further that as a result of the described personality disorder, defendant’s ability to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was “[fjrom an emotional point of view, completely impaired.”
In summation, to refute the applicability of aggravating factor c(4)(c), defense counsel argued that defendant had a motive for the killing, namely, that defendant was afraid that Olesiewicz would report him to law-enforcement authorities for smoking marijuana and that as a consequence he would be returned to prison. The balance of the defense summation was essentially an effort to persuade the jury to spare defendant’s life so that he could become an object of scientific study in an effort to find a cure for the anti-social personality disorder from which he suffered. The State, in its summation, highlighted that the underlying murder conviction was Biegenwald’s third, and characterized defendant as an evil and cold-blooded killer for whom death was the only appropriate punishment.
The jury found unanimously and beyond a reasonable doubt that the State had proven each of the two aggravating factors. Although the verdict sheet indicated that unanimity was not required for the mitigating factors, the jury found 12-0 that extreme mental or emotional distress, c(5)(a), did not exist. Three of the twelve jurors found the existence of impairment by mental disease or defect, c(5)(d). (The verdict form did not mention intoxication in connection with that factor.) Four jurors found the existence of any other factor relevant to defendant’s character or record, c(5)(h). The jury then found unanimously and beyond a reasonable doubt that the aggravating factors outweighed- the mitigating factors. Accordingly, the court sentenced defendant to death.
On defendant’s appeal to this Court we denied defendant’s motion to supplement the record but agreed to take judicial notice of records filed in other courts in this state in respect of defendant. We granted defendant’s motion that the Court take judicial notice of portions of the defendants’ briefs in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), and in State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988), and ordered that the State could rely on the corresponding points in its briefs in those cases.
II
—A—
CONSTITUTIONALITY OF THE STATUTE
Defendant claims that the New Jersey Death Penalty Act violates the eighth amendment to the United States Constitution. In State v. Ramseur, supra, 106 N.J. at 185-90, 524 A.2d 188, and State v. Koedatich, supra, 112 N.J. 225, 548 A.2d 939, we upheld the constitutionality of the act in the face of equivalent challenges. We continue to adhere to those holdings.
—B—
PRESENTENCING-PROCEEDING ISSUES
1. Gerald Issue
Defendant claims he was never convicted of capital murder for the Olesiewicz murder because “there was no jury finding of a specific intent to kill, as opposed to an intent to cause serious bodily injury resulting in death, nor was there any finding that the murder was committed by defendant’s ‘own conduct.’ ” See State v. Gerald, 113 N.J. 40, 69, 549 A.2d 792 (1988). Therefore, defendant argues, his sixth-amendment right to have all elements of a crime decided by a jury has been violated, as has his due-process right to be sentenced only for those crimes of which he has been convicted.
In Gerald, this Court held that “a defendant who is convicted of purposely or knowingly causing ‘serious bodily injury resulting in death’ under N.J.S.A. 2C:ll-3a(l) and (2), or either of them — as opposed to one who is convicted of purposefully or knowingly causing death under those same provisions — may not be subjected to the death penalty.” Ibid. In that case, because the jury had not specified whether it had found defendant guilty of serious-bodily-injury murder or intent-to-kill murder, and because on the evidence in the record it could have convicted defendant of the former, the Court reversed the conviction and remanded for a new trial.
The failure to distinguish between serious-bodily-injury murder and intent-to-kill murder has resulted in reversal of the death sentence in several cases. See, e.g., State v. Harvey, 121 N.J. 407, 581 A.2d 483 (1990); State v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990). As we stated in State v. Davis, 116 N.J. 341, 367, 561 A.2d 1082 (1989), the Legislature “never intended that capital sentencing be imposed on a defendant unless the defendant had the purpose or knowledge of a killer.” However, in State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), and State v. Rose, 120 N.J. 61, 576 A.2d 235 (1990), this Court rejected each defendant’s contentions that he could not be exposed to a new capital sentencing proceeding absent a new jury determination of guilt, i.e., whether the defendant in each case intended to kill or to cause serious bodily injury. In Pitts, the defendant had pursued his victims, inflicted multiple stab wounds, and checked to ensure that his victims were dead. In Rose, the Court found “no evidence that could have led a rational jury to conclude that defendant did not know that his conduct would cause the victim’s death.” 120 N.J. at 64, 576 A.2d 235. See also State v. McDougald, 120 N.J. 523, 577 A.2d 419 (1990) (absence of Gerald charge incapable of affecting verdict); State v. Hunt, 115 N.J. 330, 558 A.2d 1259 (1989) (same).
The evidence relating to the Olesiewicz murder introduced at both the original trial and the resentencing proceeding indicated that defendant shot the victim four times in the head from close range while both were in Smith’s car. Smith also testified that defendant had spoken to her about killing someone, and that defendant had killed Olesiewicz because Smith would not wake up and commit the killing. As in McDougald, Rose, Pitts, and Hunt, we conclude that the evidence provides no rational basis on which a jury could conclude that defendant shot Olesiewicz with an intent to cause serious bodily injury rather than death. We find inescapable the conclusion that the jury’s verdict included a finding that Biegenwald intended to kill Anna Olesiewicz when he shot her in the head four times at close range.
This Court has explained that the “own conduct” requirement of the capital murder statute “ ‘is not an element of the offense of murder [but] is merely a triggering device for the death penalty phase of the trial.’ ” Gerald, supra, 113 N.J. at 99, 549 A.2d 792 (quoting State v. Moore, 207 N.J.Super. 561, 576, 504 A.2d 804 (Law Div.1985)). But see 113 N.J. at 146-47, 549 A.2d 792 (Handler, J., concurring in part and dissenting in part) (“own conduct” is element of capital murder); State v. Moore, 113 N.J. 239, 311, 550 A.2d 117 (1988) (Handler, J., concurring in part and dissenting in part) (same). The “own conduct” provision requires that a capital-murder conviction be based on a jury finding that “defendant actively and directly participated in the homicidal act, i.e., in the infliction of the injuries from which the victim died.” Gerald, supra, 113 N.J. at 97, 549 A.2d 792.
The prosecution originally charged both defendant and Dherran Fitzgerald with Olesiewicz’s murder. The charge against Fitzgerald was dismissed in exchange for his testimony against defendant. Biegenwald II, supra, 106 N.J. at 21, 524 A.2d 130. Biegenwald’s defense at the first trial was that Fitzgerald had committed the murder. He produced witnesses who claimed that Fitzgerald had boasted that he had murdered Olesiewicz. Id. at 23, 524 A.2d 130. Defendant now claims that “the jury could have reasonably concluded that while defendant might have helped Fitzgerald to abduct the victim and dispose of her body (thus making him liable for murder as an accomplice), it was Fitzgerald who had fired the fatal shots.” The State counters that “given the factual complex and the trial court’s instruction in this case, the jury's verdict [in the guilt phase] constituted a finding that defendant committed the murder of Anna Olesiewicz by his own conduct.”
Although we agree that a conviction on defendant’s theory would not render defendant death-eligible, Gerald, supra, 113 N.J. at 100, 549 A.2d 792, neither that theory nor the facts or arguments that might have supported it were ever put before the jury. The summations at the trial presented the jury with two starkly-contrasting scenarios: either defendant shot Anna Olesiewicz by himself or, as defense counsel contended, Smith and Fitzgerald killed her. The guilty verdict indicates unmistakably that the jury determined that defendant committed the murder by his own conduct.
2. Denial of Request to Relieve Counsel
Defendant contends that the trial court erred by requiring one of his attorneys, Glen Vida, to continue to represent defendant during the resentencing proceeding and that that error denied him effective assistance of counsel in violation of the sixth amendment to the United States Constitution.
Defendant points to a similar motion by Vida three years earlier in the prosecution of defendant for the murder of Betsy Bacon to establish that a communication gap had developed between Vida, his New Jersey counsel, and Louis Diamond. Diamond, a member of the New York bar, had been admitted pro hac vice to represent defendant in several murder prosecutions against him in New Jersey. Vida indicated in support of that motion that Diamond had not informed him of a guilty-plea-hearing date in connection with one of the other murder prosecutions. Vida also asserted that a dispute unrelated to the Bacon case had arisen between Vida and Diamond. The court denied the motion in respect of the Bacon murder prosecution.
Vida represented defendant on the underlying prosecution through this Court’s determination in Biegenwald II. Following our reversal of the sentence and remand, Vida informed the trial court that his representation of defendant had terminated and that a request had been made of the Office of the Public Defender to represent defendant in relation to the resentencing proceeding. The assignment judge held a hearing to determine who would represent defendant, at which the following colloquy occurred:
THE COURT: The purpose of this Proceeding is to determine Mr. Biegenwald who is going to be representing you on the remand from the Supreme Court. And I have heard conflicting stories from counsel as to who is representing you, whether it is the public defender, whether it would be Mr. Vita [sic passim] or Mr. Diamond, or Mr. Diamond alone.
Who is it that you want to represent you?
MR. BIEGENWALD: I originally hired Mr. Diamond. Mr. Diamond hired Mr. Vita. As far as I am concerned, they both represent me.
THE COURT: All right. Because Mr. Diamond alone cannot represent you in New Jersey; because he is not admitted to practice in New Jersey. He must have local counsel from New Jersey.
Mr. Vita has indicated that he wasn’t representing you any more, and his employment terminated with the Supreme Court appeal.
All right, anyone want to be heard?
MR. DIAMOND: No, Your Honor, I stand ready to try the case if I am allowed to.
THE COURT: Mr. Vita.
MR. VITA: I think we have been over it already Your Honor.
THE COURT: We were over it in chambers, but I think I want it on the record now.
MR. VITA: Sure. My position basically is Your Honor that I think that considering the nature of the penalty that Mr. Biegenwald is facing, that he deserves counsel that are in a tight working relationship. And I don’t know whether or not that is the situation. I had previously discussed it with Mr. Biegenwald. Obviously his desires will have a large impact on what occurs.
THE COURT: Are you aware Mr. Biegenwald of any conflicts between Mr. Diamond and Mr. Vita?
MR. BIEGENWALD: No.
THE COURT: Are you satisfied to have both of them represent you on this remand?
MR. BIEGENWALD: Yes.
THE COURT: All right, I am of the opinion that Mr. Vita, your employment did not terminate with the decision of the Supreme Court. It is not a new trial as to the entire case. It has only been remanded on the death phase. The guilty conviction was affirmed. Accordingly, I will select a trial date and you will be of counsel with Mr. Diamond.
We reject defendant’s contention that the court’s refusal to relieve Vida was error. The decision whether to relieve counsel is committed to the sound discretion of the trial court, with a presumption against granting the request. See State v. Lowery, 49 N.J. 476, 231 A.2d 361 (1967) (policy of courts not to relieve competent counsel absent showing of substantial cause); State v. Smith, 43 N.J. 67, 202 A.2d 669 (1964) (same), cert. denied, 379 U.S. 1005, 85 S.Ct. 731, 13 L.Ed.2d 706 (1965). We cannot find either abuse of that discretion or any resulting prejudice to defendant. Admittedly, the trial court did not explore in detail on the record the nature of the dispute between counsel. The record reflects that the court may nevertheless have been aware of counsel’s differences. Furthermore, Vida’s statement equivocates on whether counsel would be able to provide representation appropriate to a capital-murder defense. The court viewed the resentencing proceeding as a continuation of the original trial. That view, when combined with the lengthy history of this prosecution and Vida’s extensive, five-year involvement with the defense, provides an ample basis for the court’s refusal to relieve Vida as counsel.
We also note that defendant never actually moved to have Vida relieved. Moreover, defendant indicated to the court that he was satisfied to have both Vida and Diamond represent him in the resentencing proceeding. Finally, we find the record devoid of any indication that Mr. Vida’s participation resulted in a failure to provide effective counsel, neglected responsibilities, or “a breakdown in the adversarial process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987).
3. Failure to Change Venue Sua Sponte
Defendant did not move for a change of venue at the time of the resentencing proceeding. Nevertheless, he now contends that the trial court’s failure to change venue on its own motion violated his constitutional right to a fair trial. Defendant claims that the publicity surrounding this case was so prejudicial that a fair trial before an impartial jury was impossible. He further contends that the failure to change venue resulted in the jury considering his guilty pleas to two murders in violation of his plea-bargain agreement in another case.
In Biegenwald II, supra, 106 N.J. at 30-37, 524 A.2d 130, we rejected a similar contention with respect to denial of defendant’s motion for change of venue for the initial trial. As we indicated in Biegenwald II,
It is axiomatic that a criminal defendant’s right to a fair trial requires that he be tried before a jury panel not tainted by prejudice. Irvin v. Dowd, 366 U.S. 717, 722, [81 S.Ct. 1639, 1642], 6 L.Ed.2d 751, 755 (1961). We have emphasized the importance, particularly in capital cases, of the trial court’s responsibility “to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process * * [106 N.J. at 32, 524 A.2d 130 (quoting State v. Williams, 93 N.J. 39, 63, 459 A.2d 641 (1983) (Williams I)).]
In capital cases the trial court may in its discretion “change venue when it is ‘necessary to overcome the realistic likelihood of prejudice from pretrial publicity.’ State v. Williams, supra, 93 N.J. at 67-68 n. 13, 459 A.2d 641; see State v. Bey, 96 N.J. 625, 630 [477 A.2d 315], clarified, 97 N.J. 666 [483 A.2d 185] (1984).” 106 N.J. at 33, 524 A.2d 130. Because we have adopted “the distinction recognized by the federal courts between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed,” ibid, (citing Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 1517, 16 L.Ed.2d 600, 614 (1966)), and those in which the publicity is less saturating, see, e.g., Patton v. Yount, 467 U.S. 1025, 1032-35, 104 S.Ct. 2885, 2889-91, 81 L.Ed.2d 847, 854-56 (1984), we must first identify the applicable standard for determining prejudice.
Without question this case does not warrant application of the presumed-prejudice standard. In State v. Koedatich, supra, 112 N.J. 225, 548 A.2d 939, we identified a non-exhaustive list of factors to consider in determining whether prejudice should be presumed: (1) evidence of extreme community hostility against defendant; (2) prominence of either the victim or the defendant within the community; (3) the nature and extent of the news coverage; (4) the size of the community; (5) the nature and gravity of the offense; and (6) the temporal proximity of the news coverage to the trial. Id. at 271-73, 548 A.2d 939. Consideration of those factors (save, of course, the nature and gravity of the offense) leads overwhelmingly to the conclusion that this case does not involve the extreme circumstances that cause a trial atmosphere to be so corrupted by publicity as to produce a presumption of prejudice. Biegenwald II, supra, 106 N.J. at 33, 524 A.2d 130. Consequently, we review the trial court’s failure to change venue under the “actual prejudice” standard, i.e., whether under the totality of the circumstances the voir dire and the trial court’s handling of the jurors resulted in a fair and impartial jury.
In light of an appellate court’s distance from the jury-selection process, we have indicated that deference to the trial court is appropriate. E.g., Koedatich, supra, 112 N.J. at 274-76, 548 A.2d 939. The nature of jury selection inherently requires evaluation of the demeanor of venirepersons, an assessment narrowly circumscribed on appellate review of an unanimated transcript.
Voir dire spanned three days. The trial court admonished the panel both before and after it administered the oath to the jurors that the members should avoid any media coverage of the proceeding. Before individual voir dire the venirepersons were required to fill out a questionnaire that included the following questions:
6. The defendant, Richard Biegenwald, was a resident of Staten Island. Do you know him?
YES_NO _
7. Do you know any member of his family?
YES _NO _
8. Have you ever heard of him?
YES _NO_
19. Before coming here today had you ever heard of a murder case involving Richard Biegenwald from any source whatsoever either today or at any time previously?
YES_NO_
20. Had you ever read of a case involving Richard Biegenwald?
YES_NO _
21. Have you ever discussed him with anyone?
YES __ NO _
Affirmative responses to any of those questions triggered additional probing by the trial court.
On individual voir dire sixty of sixty-four prospective jurors questioned indicated that they were in some way familiar with defendant’s name. The court excused for cause eight venirepersons because it appeared their familiarity with other proceedings involving defendant would impair their ability to comply with their oath. Ten of the twelve deliberating jurors had indicated familiarity with defendant’s name. One deliberating juror indicated awareness that defendant had been implicated with respect to more than one murder. “Jurors who have formed an opinion on the guilt or innocence of a defendant must be excused.” State v. Marshall, 123 N.J. 1, 77, 586 A.2d 85 (1991). However, “we have long recognized that impanelled jurors need not be ignorant of the facts of the case.” Ibid. (citing Koedatich, supra, 112 N.J. at 268, 548 A.2d 939; State v. Sugar, 84 N.J. 1, 23, 417 A.2d 474 (1980)).
Those venirepersons who indicated that they had formed an opinion concerning the appropriate sentence were properly excused. .Although ten of the deliberating jurors indicated some recognition of defendant’s name, their recollections were almost uniformly vague associations of defendant with the Olesiewicz murder and prosecution. The voir dire of the one deliberating juror who indicated awareness of more than one murder does not reflect awareness of any facts not to be presented and considered during the sentencing proceeding:
[Q.] You indicate you have heard the name Richard Biegenwald before?
A. Yes.
Q. Do you recall how it was?
A. Well, I ride to work every day and I had the radio on and it comes on the radio in the past.
Q. How much in the past are we talking about?
A. I have no idea, but I know I heard it on the radio.
Q. Talking about last week or way beyond — back beyond that?
A. I really don’t know.
Q. All right. Do you recall whether it was used in any particular context, like Richard Biegenwald, criminal, or Richard Biegenwald mason, or—
A. No, accused of murder.
Q. Okay, So you associate Richard Biegenwald accused of murder kind of thing?
A. Right.
Q. Anything about the details of the murder you may have recalled?
A. I recall that one of the murders took place I think in Asbury Park, something about Asbury Park.
Q. Okay. Do you recall also there was more than one murder?
A. Yes.
Q. You said one of the murders?
A. Yes.
Q. Now you are thinking about that, was that your recollection of that?
A. I don’t know.
Q. So we have Richard Biegenwald, murder associated with Asbury Park and another murder?
A. Yes.
Q. Okay.
A. You know, if there’s anything more in your head, let me know?
A. That’s about it.
Q. Well, is there anything that you may have heard even though your memory is indistinct which you think might work on you or affect you somehow or other if you sit as a juror here?
A. I don’t think so.
He*******
Q. In other words, you’d stick with what I say and put aside any pre-conceived notions you may have had?
A. Yes.
Q. That’s my job, that’s your oath?
A. Okay.
Q. Then as you sit there and evaluate yourself, knowing what we’re asking all these questions about, do you believe that if you are selected to sit as a juror on this case, that you could be open minded to the proofs that are put to you, that you could weigh the proofs, the good and the bad, weigh both sides, listen to the law as I explain it and then come to a conscientious decision as to whether the penalty should be death or life imprisonment with no parole for at least 30 years?
A. Yes.
THE COURT: Any additional questions?
MR. DIAMOND: Yes, your Honor, if you could inquire, having had the knowledge that he says he does that there were additional murders, does that have an additional effect upon him weighing the mitigating factors than if he didn’t hear about that previously?
THE COURT: All right. With that in mind, you may have heard something about at least another murder floating around, where does that leave you in so far as your ability to decide this case on what’s presented in the courtroom?
THE JUROR: I’d have to take only in consideration what I’m here for.
THE COURT: Well, that’s true, but we want to make sure you are not just saying that to please us but it really is true, that you would put aside whatever it was that you heard?
THE JUROR: Yes.
THE COURT: Okay. The other thing that’s important if you stay here is you do not idly discuss whatever it was that you heard a long time ago on the car radio with any of the other jurors here. Because that’s getting, you understand, outside information some how or other and that’s completely improper?
THE JUROR: Yes, I understand that.
The voir dire of that juror on the issue of pretrial publicity was thorough and extensive. The court offered defense counsel the opportunity to probe further. No challenge or objection was made. We will not second-guess the trial judge’s evaluation of the effect of pretrial publicity on that juror.
We conclude that the jury impanelled was free of any taint from pretrial publicity. The voir dire adequately disclosed exposure to publicity. There was no need to change venue sua sponte or otherwise. Nor do we find that there was any breach of defendant’s plea agreements in other cases because there is no indication that evidence relating to defendant’s other murder convictions entered into the deliberation process.
We pause briefly to consider and reject defendant’s related contentions that two specific circumstances caused him to be denied a trial free of taint from publicity. The first is an article, containing inadmissible and assertedly erroneous information, that appeared in the Asbury Park Press the morning of the second day of voir dire. Defense counsel brought the article to the court’s attention before that day's proceedings commenced, and each prospective juror was asked whether he or she had complied with the court’s frequent admonitions to avoid media coverage. There is no indication that the substance of the article came to the attention of any member of the jury, much less that it infected the jury’s deliberations. The court’s diligence in instructing the jury to avoid media coverage and discussions concerning the case was exemplary, and the presumption that the jury adhered to the court's direction has not been overcome.
Second, defendant objected to the court’s failure to excuse for cause a juror who had knowledge of facts relating to other murder investigations of defendant. The juror was qualified on the third and final day of voir dire and defense counsel excused her peremptorily during that same morning session. Defense counsel also moved for a mistrial based on the juror’s presence in the jury room, colorfully characterizing her as a “hand grenade” that might trigger mass recall of inadmissible evidence by the other jurors.
Although the argument that the juror should have been excused for cause is persuasive, we find the failure to have excused her unproblematic for several reasons. Foremost the juror did not deliberate; she was excused peremptorily shortly after she had been qualified. Consequently, the juror’s presence in the jury room was brief and ended before the jury was exposed to the evidentiary phase, which, particularly in a murder case such as this one, can understandably pique the urge to discuss the case. Of equal importance is the judge’s scrupulous reminder to each qualified venireperson that any discussion about the case was strictly forbidden, particularly his admonition to that juror:
MR. DIAMOND: Judge, I have no more questions. Could we instruct the proposed juror on the items we discussed here, they were not to be discussed with any of the other jurors at any time.
THE COURT: Oh, I tell each juror and I will tell [this juror] when you go into the jury room you are not supposed to discuss this with anybody there. The only time to do any discussing about this case at all with your fellow jurors if you sit is when you are deliberating at the end of the case.
A. Yes, I understand that.
MR. DIAMOND: I’m sorry, would that also include any prior knowledge?
THE COURT: Anything relating to this case, I think that’s pretty clear and this lady seems to understand that and I’m not going to fine tune it because you don’t understand it. Okay? You understand what I’m saying?
The juror indicated that she had not had discussions relating to defendant with any person other than her husband; we are unpersuaded that there is a reasonable likelihood that she infected the jury during her brief stay in the jury room.
—C—
ADEQUACY OF VOIR DIRE
Defendant contends that the voir dire for the resentencing proceeding was inadequate in several respects. First, he argues that the trial court erred by failing to define murder for the jury panel and by refusing defense counsel’s requests that potential jurors be asked in which types of cases they would be willing to impose the death penalty. According to defendant, those errors combined to deny him his constitutional right to a fair and impartial jury.
Second, defendant argues that the court erred by refusing to inform potential jurors that defendant had prior murder convictions and by failing to probe whether knowledge of those convictions would impair their ability to determine punishment in accordance with the law. Essentially, defendant claims that the voir dire failed to identify jurors who would “automatically” sentence a triple murderer to death without considering evidence of mitigating factors. Because such jurors would have been excludable for cause, defendant contends that the trial court’s ruling denied him his constitutional right to a fair and impartial jury.
Finally, defendant contends that the exclusion for cause of Stephen Ficsor because he acknowledged that imposing the death penalty would be “very difficult” denied him his constitutional right to due process and a fair and impartial jury. Underlying those contentions, and the venue challenge discussed supra at 20-27, 594 A.2d at 181-185, is the argument that the voir dire as a whole was insufficient in scope and depth to ensure sentencing by a fair and impartial jury.
The contention relating to Ficsor is meritless. The questioning of that juror demonstrates that there was ample reason to doubt his ability to follow the law or to abide by his oath. He indicated dissatisfaction with the limited sentencing options available. He also could not say that he could sentence a person to death even in the case of a gruesome killing. The record indicates a sufficient basis for the trial court’s decision that Ficsor’s ability to act as a juror was substantially impaired within the meaning of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). See State v. Ramseur, supra, 106 N.J. at 256, 524 A.2d 188.
Although we do not rely on it, we also note that counsel did not object to the exclusion of Ficsor, nor did he request further questioning. We reject defendant’s contention that the trial court abused its discretion by excusing Ficsor on the basis of such a sterile record. See State v. Hunt, supra, 115 N.J. at 357, 558 A.2d 1259 (sound measure of discretion in trial court to determine whether potential juror’s views would prevent or substantially impair his or her ability to decide sentence).
Defendant’s remaining arguments, however, present more difficult problems. Taken together, the alleged errors and omissions raise serious doubts about the efficacy of the jury-selection process. The similarities between this voir dire and the one addressed in Williams II, supra, 113 N.J. 393, 550 A.2d 1172, are plentiful, obvious, and disturbing. That neither defendant nor the State exhausted its complement of peremptory challenges is of no consequence if the voir dire failed to produce sufficient information to allow counsel or the court to challenge prospective jurors intelligently, either for cause or peremptorily. As this Court stated in Williams II,
counsel must be afforded the opportunity for a thorough voir dire to evaluate and assess jurors’ attitudes in order to effectively participate in jury selection. If counsel is unable to screen out prejudice and bias, that inevitably leads to unfair juries. This result — or the possibility of this result — cannot be tolerated. [Id. at 409, 550 A.2d 1172 (emphasis added).]
The right to a fair and impartial jury is guaranteed under both the federal and the state constitutions. U.S. Const. amends. VI & XIV; N.J. Const. art. I, para. 10. The protection afforded that fundamental right is heightened in capital cases. Ramseur, supra, 106 N.J. at 324 n. 84, 524 A.2d 188.
In Williams II, we were faced with the issue of whether the trial court had abused its discretion when it refused to ask jurors who favored the death penalty in some cases whether they would automatically favor the death penalty if the defendant had committed murder and rape, as alleged in the indictment. We held that the refusal to pursue that line of inquiry was “serious error” and “a significant component of the deficiencies” that necessitated reversal of both the sentence and the conviction of that defendant. 113 N.J. at 417, 550 A.2d 1172.
[I]t follows that a juror who will not, or cannot, consider relevant mitigating evidence pertaining to the defendant because the crime involves rape and murder is “substantially impaired” under the Adams- Witt test. Therefore, the failure to inquire into whether any juror could consider the mitigation evidence if it was established that defendant was guilty of rape and murder denies counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role in this case. [Ibid. ]
With the mere interchange of “another murder” for “rape,” that reasoning is equally applicable to the present circumstances.
The State now argues that Williams II is somehow distinguishable on this issue. We disagree. In both cases, the line of questioning disallowed by the trial court related to a statutory aggravating factor the existence of which jurors are expected — indeed, if established, obligated — to consider in their sentencing deliberations. That the rape in Williams II was intertwined with the circumstances of the murder for which that defendant was being prosecuted, while the other murders to be considered in this case arose out of separate occurrences, is of no moment. Any distinction stems merely from the wording of the provisions enumerating the aggravating factors. Compare N.J.S.A. 2C:11-3c(4)(g) (“offense was committed while the defendant was engaged in the commission of * * * [a] sexual assault”) with N.J.S.A. 2C:ll-3c(4)(a) (“defendant has been convicted, at any time, of another murder”).
The inquiry in both cases goes beyond the level of precluding intrusion into the sentencing determination of non-specific-statutory aggravating factors. In Williams II, we recognized that the brutality of a rape and murder could blind venirepersons in the performance of their duties as jurors. Similarly, we are convinced that knowing a defendant had killed before could cause an otherwise fair-minded person to disregard evidence offered in support of mitigating factors. Cf. D. Baldus, G. Woodworth & C. Pulaski, Equal Justice and the Death Penalty 318-20 (1990) (reporting probability that sentence of death will be imposed increased by 520 percent for each prior murder conviction).
The reasoning of Williams II is not limited to circumstances surrounding the murder for which a defendant is being prosecuted. Under the United States Constitution and our system of capital punishment, the sentencer must consider not only “the circumstances of the particular offense” but also “the character and record of the individual offender.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976); accord Williams II, supra, 113 N.J. at 417, 550 A.2d 1172. Hence, the voir dire should include questioning about evidence of aggravating factors that will be presented during the sentencing proceeding and that may with reasonable likelihood have such an effect on a prospective juror as to render him or her “substantially impaired” under the Adams-Witt standard.
The State also argues that Williams II is distinguishable because there — unlike this case — defendant exhausted his allotment of peremptory challenges. That contention misperceives the problem created by the refusal to permit voir dire about the impact of other murder convictions on prospective jurors. By prohibiting that inquiry, the court “denied counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role.” Williams II, supra, 113 N.J. at 417, 550 A.2d 1172. Whether defendant exhausted his allotment of peremptory challenges is not dispositive. The refusal to inquire about the effect of other murder convictions denied defendant the information necessary to exercise those challenges intelligently and effectively. Furthermore, the inquiry might have identified jurors who were unable to consider relevant evidence in support of mitigating factors when faced with a recurrent murderer. Such jurors would have been excusable for cause under our capital-punishment system. Ibid.
In ruling that questioning concerning the impact of other murders is not required, the trial court concluded that such an inquiry would amount to “shopping with the jurors to find out when their tendencies will be overborne to a point where they go for death.” Although the court may have been correct in its characterization, it erred in its implicit conclusion that “shopping” is not permissible or appropriate. In fact, it is necessary. We return again to Williams II:
Once the trial court has elicited from each juror sufficient information concerning that person’s predilections * * * then counsel’s ability to formulate and argue for excusal for cause is enhanced. More importantly, the trial court will have a more complete record on which to apply the Adams- Witt standard in granting or denying excusáis for cause. This enhanced record is imperative to preserve society’s interest in a fair trial. Greater disclosure will also undoubtedly aid both the defense and prosecution in the exercise of their respective peremptory challenges. [113 N.J. at 413, 550 A.2d 1172.]
As we recently stated in State v. Moore, 122 N.J. 420, 446, 585 A.2d 864 (1991), “voir dire acts as a discovery tool.”
It is not enough just to ask jurors in a capital case whether the nature of the crimes would affect their ability to be fair in deliberating on a death sentence versus a term of years. The question is correct so far as it goes, but it really invites only one answer. [Id. at 449, 585 A.2d 864.]
In Moore we explained that State v. Manley, 54 N.J. 259, 255 A.2d 193 (1969), does not compel such a limited voir dire. In Manley the Court revised the procedures for conducting voir dire in response to abuse of such procedures by counsel:
The impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party’s point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish. [Id. at 281, 255 A.2d 193.]
The new procedures returned to the trial court the primary responsibility for conducting voir dire. We held in Biegenwald II, supra, 106 N.J. at 29, 524 A.2d 130, that those revised procedures applied to capital-murder cases. Regrettably, we perceive from the records in many of the cases coming before us that trial courts have read Manley, in conjunction with Adams and Witt, to limit voir dire to the bare minimum necessary to qualify a juror. See State v. Dixon, 125 N.J. 223, 593 A.2d 266 (1991); State v. Moore, supra, 122 N.J. at 445, 585 A.2d 864 (“One of the problems that we have in capital cases is that the constitutionally-limited Adams-Witt standard for disqualification of jurors in capital cases * * * gets confused with the more general inquiry into juror predispositions or preferences that should mark the general jury-selection process.”). The procedures set forth in Manley and those approved by Adams and Witt are minimum requirements. Blind adherence to those standards and procedures does not necessarily produce a thorough and searching voir dire. An adequate voir dire should incorporate the suggestions of Williams II and Moore with an eye toward providing counsel and the court with the tools necessary to perform their respective tasks comprehensively and intelligently.
We note in this case that the State, to its credit, acknowledged the need for inquiry about other murder convictions during voir dire. It brought the opinion in Williams II to the trial court’s attention and even went so far as to submit a proposed question for the court to use:
As I previously advised you, the decision as to what is the appropriate penalty in connection with this matter will depend upon the existence of aggravating factors and mitigating factors and you will then weigh these as I will instruct you at the end of this case.
The legislature has listed a number of aggravating factors and has also listed a number of mitigating factors. One of the aggravating factors the legislature has listed and the State contends exists is that the defendant * * * had been previously convicted of murder. Could you consider the mitigating evidence even if the State proved that the defendant had previously been convicted of murder?
Without endorsing the exact question proffered by the prosecution or suggesting that a single question can accomplish the task, we are impressed with the obvious merit of the State’s proposal. In light of Williams II — and particularly in light of the positions of the parties — the trial court’s refusal to inquire about the impact that knowledge of other murder convictions would have on the ability of prospective jurors to credit or consider the evidence in mitigation is mystifying.
The refusal to permit questioning on the impact of other murder convictions during voir dire constitutes serious error. Such error, however, is not irremediable. Defendant’s sentence may be upheld if the voir dire was otherwise so thorough and probing as to ensure that the jurors empaneled had the “capacity to credit the evidence in mitigation,” State v. Bey, 112 N.J. 123, 154, 548 A.2d 887 (1988) (Bey II), and the ability to perform their duties in accordance with the court’s instructions and their oaths, see Adams v. Texas, supra, 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at 589. On reviewing the jury-selection process as a whole, we conclude that it was constitutionally flawed.
Notwithstanding the broad discretionary powers vested in the trial court regarding the jury-selection process, Biegenwald II, supra, 106 N.J. at 37, 524 A.2d 130; State v. Jackson, 43 N.J. 148, 160, 203 A.2d 1 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965), we have suggested several ways of ensuring an efficacious voir dire, particularly in capital cases. The near-total absence here of use of methods recommended for conducting voir dire leaves us unable to conclude that defendant’s right to a fair and impartial jury was not abridged.
In Williams II, supra, 113 N.J. 393, 550 A.2d 1172, and Williams I, supra, 93 N.J. 39, 459 A.2d 641, we suggested several approaches to conducting an adequate voir dire in capital cases. We identified the use of open-ended questions as “an important ingredient” in the death-qualification inquiry. Williams II, supra, 113 N.J. at 413, 550 A.2d 1172. We also endorsed the practice of providing prospective jurors with an outline of this state’s death penalty statute and questioning them regarding their opinions of the statute. Id. at 412-13 n. 5, 550 A.2d 1172. We indicated that posing “hypothetical examples to probe how various factors might affect a person’s decisionmaking process” is proper. Ibid. Particularly revealing in relation to defendant’s contentions about the failure to define murder is the following:
Knowledge about what constitutes capital murder * * * and the use of the “aggravating and mitigating factors” scheme during sentencing will enable all potential jurors to answer questions concerning the death penalty free of misconceptions and faulty assumptions concerning how the law is administered in this state. [Ibid.]
In Williams I, we were presented with the conflict between a defendant’s right to a fair trial and the media’s right of access to newsworthy occurrences. We suggested as an alternative to closure of the proceedings that the trial court should “consider the efficacy of more exhaustive and searching voir dire examinations. The Court in conducting the voir dire should be particularly responsive to the requests of counsel regarding the examination of prospective jurors [concerning] potential bias.” 93 N.J. at 68, 459 A.2d 641. Indeed, we have noted that “in capital cases trial courts should be especially sensitive to permitting attorneys to conduct some voir dire.” Biegenwald II, supra, 106 N.J. at 30, 524 A.2d 130. Finally, we have indicated that the court should “consider whether there should be a greater willingness to resolve doubts in favor of the defendant in excusing jurors for cause.” Williams I, supra, 93 N.J. at 68, 459 A.2d 641.
The voir dire in this case, as in many other cases, proceeded in a consistent, if not monotonous, pattern. After the prospective jurors had completed the questionnaire, the court conducted individual examinations beginning with review of the answers on the questionnaire. Most potential jurors were questioned concerning their prior knowledge of Biegenwald or cases involving him. Each person was asked for his or her views on the death penalty. The court then followed up with questions concerning the potential juror’s ability to follow the law as instructed. The court also questioned prospective jurors concerning their willingness to credit psychiatric testimony. Questioning by counsel was minimal and proceeded almost entirely through the court.
On at least eight occasions, the court rejected defense counsel’s request, based on the potential juror’s response to the individualized questioning, for additional inquiry about a venireperson’s views on the death penalty. That is in addition to rejecting defense counsel’s request for such questioning as a matter of course.
A review of the voir dire of juror Mr. M. provides a sense of the court’s approach to death qualification:
Q All right. The obligation of the jurors here in this trial is a limited one as I explained, has to do with which penalty is appropriate to this situation based upon aggravating factors that are presented and mitigating factors that are presented unless those words throw you, I don’t think they should, but aggravating factors would be those things which would tend to lean you towards the death penalty, mitigating factors would tend to lean you away from the death penalty and toward life imprisonment with no parole for 30 years, those are the two options?
A Yes.
Q Since death is a possible option, what do you think generally about the death penalty?
A It applies in certain cases and sometimes it doesn’t, it’s not something that I have taken a position on definitely, that it goes or doesn’t go in cases.
Q There are some people conscientiously think the death penalty should never be imposed and they are entitled to that view. That’s not your view?
A No.
Q There are also some folks who are more, if you will, hard-nosed and they would say if there is a murder involved whoever is convicted of that murder should get the same penalties, death penalty. Are you of that persuasion?
A No, I think you have to weigh each case by its merits.
Q Okay, part of the evidence that will be presented to you is that of Dr. Eshkenazi, I mentioned his name yesterday, he’s a psychiatrist. Anything about psychiatric testimony which you think is less worthy of acceptance than maybe other kind of medical testimony?
A No, sometimes, in some cases it’s very valid.
Q At the end of the case after you have heard all the evidence on the aggravating and mitigating factors, I’ll be explaining to all the jurors who sit how they should handle those and what principals [sic] of law apply to the decision. I tell you that your obligation under your oath is to accept the law as I explain it and not to substitute for it your own views as to what you think the law is or what it ought to be, you think you can do that?
A Yes, sir, I do.
Q Sitting there now and knowing it’s important to all of us, you think that if you are selected as a juror on this case you would be able to sit, listen in that open minded way that I have described before, make your evaluation and then decide what is the appropriate penalty and do that fairly, objectively and conscientiously?
A I believe so.
THE COURT: Any additional questions of the prospective juror?
‡^‡‡*#**
MR. DIAMOND: Judge, before the next witness is called, I seem to have a problem, not with you, your Honor, but the answer, the nature of the answer that a lot of them are giving is always the same answer. It would depend upon the facts and it just seems to me there is a coachment in there like I believe it’s Mr. S. who said before that, you know, he wouldn’t want somebody who has come out of jail and he heard [sic: hurt] somebody else again, I have the terrible feeling in my mind, it depends upon the facts, depends upon the facts that he murdered more than one person.
THE COURT: Depends upon the murder, depends upon the circumstances, but their answer is their answer, you know, you may not like that answer but it’s absolutely the correct answer.
MR. DIAMOND: I agree, I realize it’s the correct answer for the person and if it’s all of them who believe anybody who kills more than once, then there’s no question in my mind, it’s a tough thing, I know it’s a tough thing. I wonder if there’s something we could ask them what they mean by that. If they could elaborate on that aspect a little bit more.
THE COURT: You come up with a question, give it to me sometime.
MR. DIAMOND: The question is simply, Judge, depending on the circumstances, what are the circumstances?
THE COURT: No, because then I’m shopping with them. They will say gee, if he stabbed him in the back 16 times or—
MR. DIAMOND: It’s not a question of shopping, you are asking them already the simple question that “can you sit on a murder case and do you feel you would always vote for the death penalty or you would never vote for it?” Once you asked that question you are in the market place. This question of shopping only applies if we’re going to go up and down the scale. It’s not like it’s a mark-down today and it’s going to be four murders tomorrow. Always going to be three murders, no shopping involved at all.
We know there are three murders, they should be allowed to know there are three. At least ask them if under certain circumstances, they may have some outlandish reason, if they all seem to say if a person killed somebody more than once and not put to death, then we’re going to do it this time. That's not shopping. We know the specific amount, we’re not haggling over the price, there’s three murders. If you are not going to do that, at least ask them what they mean when they say special circumstances on their mind already, it’s not a shopping expedition.
THE COURT: Okay, you speak in colorful language, I’m satisfied the questioning so far is in accordance with constitutional mandates and I’m not going to go beyond that as you suggest unless there’s something in the specific answer, not that general answer which is, you know, God knows the right answer, we assume most people are that way, that they are willing to weigh and it will depend upon the circumstances, that’s the right answer.
I’m not going to ask them what kind of circumstances would cause you to go one way or another. No, I’m not going to do that.
MR. DIAMOND: Well, would you ask—
THE COURT: No more, I have ruled.
MR. DIAMOND: Stop you from weighing—
THE COURT: Don’t keep coming back at me with another "if.” I have ruled.
The suggestion in the colloquy that there is a “correct” answer to the open-ended question “what are your views on the death penalty?” is most troubling. Although such an open-ended question is undeniably a proper jumping-off point for death qualification, the vapid response “it depends on the circumstances” in no way reduces the need for additional probing of a venireperson’s views on the appropriateness of the sentence of death. The purpose of voir dire is not to elicit from a potential juror the correct answer; it is to draw out the potential juror’s views, biases, and inclinations and to provide both counsel and the court the opportunity to assess the venireperson’s demeanor. We reiterate that voir dire should proceed with the conscious object of providing court and counsel alike with sufficient information with which to challenge potential jurors intelligently — whether for cause or peremptorily.
The court’s initial open-ended question and variations on the “it depends” response were too often followed by closed-ended, suggestive questions that, not surprisingly, elicited the obvious “correct” response. For example, venireperson Ms. B. responded to the question “what do you think about the death penalty?” in this way:
A Personally it’s really more up to how the state of the victim was, the person was with the defendant, at the time was he mentally out of control, but I have no views, really, I don’t go either way, never sat down and thought about killing somebody because of a crime.
Q Well, are you saying that your judgment will depend upon what proofs are presented to you?
A Yes.
Q Depending upon the proofs, you could go either towards the death penalty or towards life imprisonment one way or the other?
A Yes.
Q All right. As I said to the jurors, what will be presented will be evidence on what are called aggravating factors and mitigating factors, those are big words, really come down to pluses and minuses as to the individual, Mr. Biegenwald.
Do you think you could listen to all the pluses and minuses and then under the law as I’ll explain it decide what the right penalty should be?
A Yes. [Emphasis added.]
The court invited additional questions from counsel, but defense counsel declined. Ms. B. was later excused peremptorily by the State.
In one instance, when the response of the venireperson raised the issue of the impact of another murder conviction, the court did assure itself that the potential juror would remain open to the option of life imprisonment. Venireperson Mr. R. answered the general query concerning his views on the death penalty this way:
A I think it’s good in some ways, if a person is — I mean has committed a murder, I mean if it’s so strict they have committed more than one murder, I do believe in the death penalty, I think that’s the right way.
Q If they have committed more than one murder?
A Yes.
Q So that you would be inclined towards the death penalty if that were presented to you?
A Yes.
Q If it were presented to you, would that mean that you wouldn’t pay any attention to what the mitigating evidence was?
A No, I mean, the factors are there that it was to a certain degree more brutal than another murder per se, I wouldn’t lean more towards the death penalty.
Q But even with another murder in your words, would you still be willing to listen and open to the possibility that the mitigating factors might still outweigh even that?
A Oh, yes, I’d listen, yes.
Q So even with another murder, it’s possible, I think from what you said, you still could vote for life imprisonment with no parole for at least 30 years?
A Yes.
Q Depending upon what you hear?
A Yes.
Q Understand I’m not trying to lead this perspective [sic] juror but that’s the way I hear him saying his responses to me.
At the end of the case I’ll be explaining what the law is, how the jury is to approach their decision, that’s really what the law comes down to. Do you believe you’d be willing to accept that law as I explain it without tinkering with it in your own mind to suit your own views?
A Yes.
Defense counsel excused Mr. R. peremptorily. Were that method of questioning employed throughout the voir dire process, our result might well be different. Unfortunately, we find that the death-qualification questioning of Mr. R. was the exception and the interrogation of Ms. B. is representative of the normal course.
The error of refusing to probe more thoroughly the death-penalty views of the jurors was compounded by the absence of indoctrination on the applicability of the death penalty and the crime of murder. The court identified the basis for Biegenwald’s murder conviction during the general voir dire:
To assist you in answering some of the questions it will be necessary that you have some understanding of the charge that was contained in the Indictment upon which Richard Biegenwald has been found guilty of murder. The Indictment in that regard reads that Richard Biegenwald, on or about the 28th or 29th day of August, 1982, in the City of Asbury Park, did commit the crime of murder of a girl by the name of Anna Olesiewicz. Her name will come up and that’s the charge and he’s been found guilty of that. He did that.
When the response of a venireperson indicated a possible misunderstanding of the law, the court attempted to clarify by disclosing that a death sentence could be imposed only on a defendant convicted of murder. Although we agree with the observation of the State that “murder is not such an uncommon occurrence in our society,” we do not accept the proposition that the average juror should be expected to be capable of drawing the legal distinction between capital murder and other killings. In fact, the responses of more gregarious venirepersons suggest that without instruction, they are not so capable. One prospective juror indicated that the death penalty would be appropriate in some cases but not for accidental killings. Another indicated that her decision would depend on whether the defendant was “mentally out of control.” The death-qualification questioning of venireperson Mr. L. demonstrates the potential prejudice that could arise from the failure to educate potential jurors:
[Q] What are your own views of the death penalty if we might ask?
A It’s how serious the crime was, if it was cold blooded murder, I feel that his life should be taken, too. If it was an accident, that’s something totally different.
Q If it’s an accident it’s not murder.
A I don’t know what the circumstances were.
Q There’s no such thing as accidental murder.
A That’s the way I feel about it.
Q All right. Are you saying then that if it’s a real murder, the death penalty ought to be imposed?
A From what I can understand, just from what you had told us.
Q No, what I told you was there were two options, that’s what I told you.
A I feel if it was intentional, then his life should be taken, too.
Q You can’t have a murder without it being intentional?
A Then his life should be taken.
Mr. L. was excused; however, the exchange evinces the danger inherent in a procedure wherein equivocal answers to the initial open-ended question were followed by lengthy questions that suggested the “correct” response. To admonish a potential juror that “we’re talking only about murder here” is ineffective in the absence of an explanation of the meaning of murder under New Jersey law. In common parlance, murder and killing are interchangeable. Murder as used in the criminal-law system has a precise meaning, and capital murder is even more narrowly circumscribed.
With the notable exception of the court’s initial question concerning a venireperson’s views on the death penalty, the routine examination consisted of a series of leading, closed-ended questions. Although the court invited follow up from counsel, it refused to allow such inquiry at critical points. The court failed to educate the potential jurors concerning the laws of New Jersey relating to murder and capital punishment except in the most general terms. It rejected hypothetical questions designed to draw out bias and predisposition.
We acknowledge the paucity of objection by defense counsel. However, whatever lack of zealousness and vigor one might ascribe to defense counsel in no way diminishes our duty to ensure that defendant is sentenced by a fair and impartial jury, each member of which is capable of considering evidence in support of aggravating and mitigating factors before reaching a conclusion on the appropriate punishment. The lapses in the voir dire employed here foreclose a conclusion that jury members were properly death-qualified. “The right to a fair trial must be diligently protected to insure that all defendants, regardless of the crime charged or the weight of the evidence produced, are tried by a fair and impartial jury.” Williams II, supra, 113 N.J. at 409, 550 A.2d 1172; accord Williams I, supra, 93 N.J. at 61, 459 A.2d 641 (“The death penalty is a categorical imperative for trial fairness.”).
No matter how convinced we may be of defendant’s guilt, unless we are similarly convinced of the jury’s impartiality, we cannot allow the death penalty to be imposed. When the basic procedure designed to assure that impartiality — challenges for cause, peremptory challenges, and a searching voir dire— are improperly applied so as to seriously weaken their combined effectiveness, a new trial is necessary. [Williams II, supra, 113 N.J. at 445, 550 A.2d 1172.]
We are unable to conclude that the inadequacy of the death-qualification process was harmless error. Nor can we attribute that inadequacy to a strategic decision by defense counsel. See State v. Marshall, supra, 123 N.J. at 93, 586 A.2d 85. Because the jury may have included members who were “substantially impaired,” the sentence must be set aside.
Mu’Min v. Virginia, — U.S. -, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), confirms that “the subject of possible bias from pretrial publicity must be covered — which it was — but that questions specifically dealing with the content of what each juror has read [need not] be asked.” Id. at-, 111 S.Ct. at 1908. Here, not only was the specific question about the prior murder convictions rejected, but the subject was not covered sufficiently or almost at all. Justice Stein ignores the deficiencies that compound the error of not asking about the impact of the prior-murder-eonviction factor — i.e., the lack of open-ended questions, hypothetical questions, prior-murder-conviction questions based on individual responses, and instruction on what constitutes “capital murder” in New Jersey. See post at 105, 594 A.2d at 229 (Stein J., dissenting). The subject of possible blinding bias from that known factor — bias that would render a potential juror excludable for cause — simply was not covered. Hence, we do not read Mu’Min to compel a result different from ours.
Finally, we recognize that our finding that defendant is entitled to voir dire potential jurors on the possible blinding impact of the c(4)(a) factor most likely will require a two-jury system for all capital cases in which the State seeks to prove that factor. That is because aggravating factor c(4)(a), unlike all other aggravating factors, is proved by evidence not generally admissible during the determination of guilt or non-guilt. See Evid.R. 55.
One of the purposes of the bifurcated-trial system established by the New Jersey Death Penalty Act is to prevent the jury’s determination of death-eligibility from being influenced by evidence relevant only to adjudgement of the appropriate sentence. See State v. Pinnell, 311 Or. 98, 121, 806 P.2d 110, 116 (1991) (“One of the purposes of the bifurcated trial is * * * to prevent the jury’s verdict on [non-guilt] or guilt from becoming tainted by evidence of defendant’s bad character that is admissible only in the penalty phase.”). Although a single jury is preferable, the Legislature has explicitly provided for empaneling a separate jury for the sentencing proceeding on a showing of “good cause.” N.J.S.A. 2C:11-3c(1); cf. State v. Long, 119 N.J. 439, 475, 575 A.2d 435 (1990) (recognizing that other-crimes evidence admissible during guilt phase may be too prejudicial during penalty phase and be irremediable by a limiting instruction); State v. Moore, supra, 113 N.J. at 277, 550 A.2d 117 (recognizing that when limiting instructions are insufficient to protect a defendant from prejudice from other-crimes evidence, court may have to impanel a new jury for the penalty phase).
Prior-murder convictions are relevant to the determination of the appropriate sentence because the sentencing phase focuses in part on the character of the defendant. The guilt phase, however, is limited to a determination of what the defendant did. See United States v. Myers, 550 F.2d 1036, 1044 (5th Cir.1977) (“A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not who he is.”), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed. 2d 149 (1978). Because of the prejudice that could be engendered by voir dire prior to the guilt phase about a defendant’s other murder convictions that are not otherwise admissible as evidence during that portion of the case, see Evid.R. 55, that questioning should almost invariably come only after a jury has found a defendant death eligible. See Pinnell, supra, 311 Or. at 121, 806 P.2d at 116 (finding that “objective of a bifurcated trial was thwarted” by voir dire before guilt phase that “implied that defendant had previously been convicted of other crimes”).
—D—
OTHER ISSUES
Because the ease must be remanded for a new sentencing proceeding, we address only those remaining issues that may arise on remand.
1. Mitigating Factor c(5)(h)
Before the sentencing proceeding, defense counsel requested that several factors relating to sympathy and to Biegenwald’s personal history and prior sentences be charged separately to the jury. At the pre-sentencing hearing counsel expanded the request to include listing the factors individually on the special verdict form. Defense counsel argued that in adopting N.J.S.A. 2C:11-3c(5)(h) (c(5)(h)) (mitigating factors include “[a]ny other factor which is relevant to the defendant’s character or record or to the circumstances of the offense”), the Legislature intended that if the evidence established multiple non-specific-statutory factors, they should be presented to the jury individually rather than merely as evidence of one catch-all factor. Counsel asserted that in order to ensure fair consideration of non-specific-statutory mitigating factors, the factors should be listed on the jury-verdict sheet. According to defense counsel, to require jurors to remember the other factors would be to trivialize those factors, particularly in light of the listing of statutory aggravating and mitigating factors. On appeal defendant presses further, arguing that relegating to secondary consideration the other factors submitted pursuant to c(5)(h) contravenes the United States Supreme Court’s mandate that
the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering os a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. [Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 990 (1978); accord Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); id. at-, 110 S.Ct. at 1201, 108 L.Ed.2d at 333 (Marshall, J., dissenting) (indicating unanimity on the ruling in Lockett); State v. Ramseur, supra, 106 N.J. at 294-95, 524 A.2d 188.]
The State did not oppose generally charging or listing the requested factors individually, although it objected to one proposed factor on the basis of relevance. The State did voice concern, however, that if the court were to list the factors requested by defense counsel, the jury might conclude that those were the only factors to be considered and would “totally disregard something that neither defense counsel nor the court had considered as a mitigating factor.” Expressio unus est exclusio alterius. The court, citing the concern raised by the State, denied the request to list the proffered factors separately but indicated that it would allow defense counsel to point out the factors in his summation. The court also indicated that in charging the jury on c(5)(h), it would mention the evidence tending to support the defense’s argument.
We have long recognized, as has the Supreme Court, that “above all, capital sentencing must be reliable, accurate, and nonarbitrary.” Saffle v. Parks, 494 U.S. 484,-, 110 S.Ct. 1257, 1262, 108 L.Ed.2d 415, 427 (1990); accord Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).
[Decisions to impose the death sentence [must] be consistent (in the sense of consistency with other decisions to impose or not to impose death) and * * * reliable (in the sense that the individual defendant is deserving of the punishment). Sometimes conflicting, the two principles of consistency and reliability reflect the increased demands of accuracy and fairness, rising to constitutional dimension, in the implementation of this unique criminal sanction. [Ramseur, supra, 106 N.J. at 185, 524 A.2d 188.]
Consistent procedural treatment of mitigating factors in capital-sentencing proceedings advances those interests of fairness, reliability, and justice. We are aware that in at least one other capital-murder prosecution, non-specific-statutory mitigating factors proffered by the defendant were listed on the jury-verdict form. (The jury sentenced that defendant to life imprisonment with a thirty-year period of parole ineligibility.) Any other factor “relevant to the defendant’s character or record or to the circumstances of the offense,” N.J.S.A. 2C:11-3c(5)(h), that a defendant submits for consideration and that could be established by some reliable evidence, see N.J.S.A. 2C:11-3c(2), should be listed on the jury-verdict form. That does not mean that every factor proffered by a defendant must be listed. See State v. Gerald, supra, 113 N.J. at 103, 549 A.2d 792 (sentence of co-defendant inadmissible); Bey II, supra, 112 N.J. at 146, 548 A.2d 887 (evidence of general non-deterrent effect of death penalty inadmissible). The trial court must evaluate the factors offered by a defendant in accordance with the language of c(5)(h).
The State argues that were a court to list non-specific-statutory mitigating factors on a defendant’s request, jurors might conclude that they would be precluded from finding and giving effect to mitigating factors not listed, possibly thereby violating Lockett. That contention is without merit for at least two reasons. First, we are not persuaded that a procedure that permits a defendant to itemize for the jury those mitigating factors on which he or she relies possibly violates Lockett. Furthermore, and perhaps more importantly, listing non-specific-statutory mitigating factors does not diminish the trial court’s responsibility to inform the jury how mitigating evidence may affect its decision. The jurors must be told that the list of mitigating factors is non-exclusive and that mitigating factors other than those listed may be found and considered whether or not non-specific-statutory mitigating factors are listed on the jury verdict form. California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934, 942 (1987) (O’Connor, J., concurring) (“the jury instructions — taken'as a whole— must clearly inform the jur[ors] that they are to consider any relevant mitigating evidence about a defendant’s background and character”); Bey II, supra, 112 N.J. at 169, 548 A.2d 887 (“The requirement that capital sentencing must not preclude consideration of relevant mitigating circumstances would be hollow without an explanation of how the evidence can mitigate the imposition of the death penalty.”). See generally Judges Bench Manual for Capital Cases XXXI.C., at 141-42 (1990) (same).
The State’s less-paternalistic arguments that listing of nonspecific-statutory mitigating factors is not required are equally unpersuasive. The contention that listing separate factors under c(5)(h) will lead to impermissible double counting of mitigating factors has been addressed previously. See State v. Pennington, supra, 119 N.J. at 599, 575 A.2d 816 (“The court should instruct the jury that the same evidence may be used to prove multiple mitigating factors.”). Furthermore, the treatment of aggravating factors — e.g., limiting possible aggravating factors to those enumerated in N.J.S.A. 2C:11-3c(4), considering multiple murder convictions as evidence of only one aggravating factor — is not relevant to the treatment of mitigating factors, nor can it be. Jurors must be permitted to consider and give effect to any mitigating evidence. Conversely, sentencers are strictly limited in their deliberations to consideration of only those aggravating factors set forth in N.J.S.A. 2C:11-3c(4).
Common sense compels the determination that when evidence of wholly-unrelated circumstances is offered pursuant to c(5)(h), it is not intended to be considered as a single factor by the sentencer. The language of the provision is too broad to permit a contrary conclusion. For example, a defendant could offer evidence of a violent and abusive childhood, of his or her potential for rehabilitation, and of specific past acts of discrimination against the defendant. To consider that evidence as probative of only one factor is not only illogical but also runs afoul of the requirement that mitigating circumstances receive individualized consideration. See Bey II, supra, 112 N.J. at 161, 548 A.2d 887. Each circumstance must be presented to the jury, with the determination of the weight to be accorded it left for the jury after proper instruction from the court.
Turning to the specific factors requested by defendant prior to the resentencing proceeding, all but one meet the relevance requirements of c(5)(h). The request relating to sentences imposed on defendant after other murder convictions raises the specter that a jury in this case may be unduly influenced by the determination of another jury made on a substantially different record. Because the sentencing determination is fact specific and remains subject to significant sentencer discretion, the sentence imposed in another case under different circumstances has little probative value to the present jury’s sentencing decision. A properly-impanelled jury in a capital case is aware of the limited options available in sentencing a defendant convicted of murder. Furthermore, the argument that defendant will never be eligible for parole in his lifetime can be made based on the current proceeding. Evidence of sentences imposed on defendant for his other murder convictions should not be admitted.
2. Failure to define murder
Defendant contends that the trial court’s failure to define murder for the jury at any time constituted plain error and violated his constitutional right to due process of law and to a reliable sentencing determination. Defendant argues that because “the jury here sentenced defendant for the crime of murder, and based its decision on two prior murder convictions, without knowing the legal definition of murder,” its determination is suspect. Beyond the impact that absence of a definition of murder may have had on the voir dire, see supra at 41-42, 594 A.2d at 193-194, the failure to define murder, if error, was harmless. The determination to be made here was the appropriate sentence, not whether Biegenwald was guilty of murder. The jury was aware of the circumstances of the underlying killing and knew that those circumstances had caused another jury to find defendant guilty of murder. Because the jury was neither required nor permitted to reconsider whether defendant was guilty but rather was charged only with determining the appropriate sentence, a definition of murder should not have changed its deliberative process.
Although educating potential jurors on what constitutes murder was necessary for the court and counsel to conduct an effective voir dire (because the common “it depends on the circumstances” answer to the question about a venireperson’s views on the appropriateness of the death penalty is unintelligible in the absence of a clear understanding by that venireperson of the limited circumstances under which the death penalty may be imposed), see supra at 41-42, 594 A.2d at 193-194, a definition of murder is not essential to the sentencing deliberation. We agree with the conclusion of the Trial Judges Committee on Capital Causes that the prior-murder-conviction aggravating factor, N.J.S.A. 2C:11-3c(4)(a), “does not appear to require further definition.” Judges Bench Manual for Capital Cases, supra, Appendix J, at J(2)-13; cf. State v. Clausell, 121 N.J. 298, 344, 580 A.2d 221 (1990) (court on remand should define aspects of aggravating factors that are not substantially self-explanatory). The jury is not permitted to second-guess the judgment of a prior jury that has convicted a defendant of murder; it need know only that defendant has committed another murder. The murder statute specifies the evidence admissible to prove that factor:
Evidence offered by the State with regard to the establishment of a prior homicide conviction [in fact, only a prior murder conviction is admissible as an aggravating factor under c(4)(a) ] pursuant to paragraph (4)(a) of * * * subsection [c] may include the identity and age of the victim, the manner of death and the relationship, if any, of the victim to the defendant. [N.J.S.A. 2C:11-3c(2)(f).]
A detailed understanding of the murder statute is not necessary either to a jury’s determination of the existence of the c(4)(a) factor or to its weighing of that factor in the ultimate decision on the appropriate sentence. The understanding of “murder” as used in our statute will be adequately conveyed by the trial court during voir dire, the underlying trial, or both. Because we reverse on other grounds, we need not decide whether this jury’s understanding of “murder” was adequate for it to deliberate effectively.
3. Removal of Intoxication from Mitigating Factor c(5)(d) Instructions
Defendant’s Notice of Mitigating Factors included notice that should a capital-sentencing proceeding be necessary, he would seek to prove that
defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication. [N.J.S.A. 2C:11-3c(5)(d).]
During the sentencing proceeding defense counsel elicited testimony on cross-examination of Smith tending to establish that defendant had been smoking marijuana on the night of the murder:
Q You recall having a conversation, don’t you, at some time when Mr. Biegenwald told you he was in the car that night and smoking pot with the girl?
A Yes.
To emphasize that testimony, defense counsel returned to the subject as the final question:
Q You do recall him saying he had smoked pot in the particular car where you found the blood stains with the girl?
A Yes.
In his summation, defense counsel reminded the jury that Smith had testified to defendant’s smoking marijuana on the night of the murder. The summation, however, made no explicit attempt to develop that fact as a mitigating factor. Rather, defense counsel’s reference to defendant’s drug use appeared to focus on a motive for the killing — namely, to prevent the victim from reporting defendant’s drug use (a violation„of his parole) to the police — and thereby to refute aggravating factor c(4)(c).
In the general, introductory jury charge, the court had listed all eight possible mitigating factors. At that point, in reading c(5)(d) to the jury, the court mentioned that that factor included intoxication as possibly impairing defendant’s mental capacity. However, when the court narrowed its discussion to the mitigating factors actually advanced by defendant in the resentencing proceeding, it deliberately omitted reference to intoxication, both when reading e(5)(d) again to the jury and when explaining that factor.
Defendant took timely exception to the court’s omission of intoxication in its explanation of c(5)(d). The court refused to amend the instruction:
MR. DIAMOND: Your Honor, please the Court, with the addition that the legislature put in as to intoxication at the time of the offense was committed, could you instruct the jury intoxication also includes the use of drugs such as marihuana?
THE COURT: No, I won’t.
MR. DIAMOND: That’s what the legislature intended.
THE COURT: I won’t instruct them.
MR. DIAMOND: There is testimony at the time the offense was committed.
THE COURT: Your position is clear, I’m not going to instruct them on intoxication.
No further explanation for the court’s decision is evidenced in the record. The verdict sheet also omitted “intoxication” from the c(5)(d) factor.
Defendant claims that the trial court’s refusal to include reference to intoxication in its instruction on mitigating factor c(5)(d) precluded the jury from considering and giving effect to mitigating evidence and therefore requires vacating of the death sentence. The State contends that the trial court did not err because there was no evidence of intoxication. The State further contends that the jury was not precluded from considering defendant’s marijuana usage on the night of the murder under mitigating factor c(5)(h), the catch-all factor.
Defendant correctly points out that the eighth amendment “requires that juries be given instructions which allow them to ‘consider and give effect to [the] mitigating evidence,’ ” quoting Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256, 275 (1989). This Court has indicated previously that juries must be allowed to consider all mitigating circumstances advanced by defendant at trial. Bey II, supra, 112 N.J. at 169, 548 A.2d 887. Defendant emphasizes that he is not suggesting that the evidence of intoxication would have constituted a defense to prosecution, but rather that the evidence supported a charge on intoxication as a mitigating factor under c(5)(d).
That the trial court omitted intoxication from its charge on c(5)(d) and left intoxication out of the recitation of that factor on the verdict sheet is troubling, particularly because the trial court read the language of the provision — including the reference to intoxication — to the jury in its initial overview of the statute but thereafter gave no explanation for its failure to have included intoxication in its specific charge and on the verdict sheet. The statute plainly includes intoxication in its c(5)(d) language. That intoxication can derive from drug or alcohol usage is recognized generally. E.g., State v. Zola, 112 N.J. 384, 424, 548 A.2d 1022 (1988); N.J.S.A. 2C:2-8e(1) (defining intoxication as “a disturbance of mental or physical capacities resulting from the introduction of substances into the body”).
In Zola, we held that the trial court had not erred in denying a request that the jury be instructed on the defense of intoxication. 112 N.J. at 425, 548 A.2d 1022. We reasoned that “intoxication may be attributed to drugs * * * but must cause ‘prostration of faculties’ to be considered relevant to negating an element of the offense.” Id. at 424, 548 A.2d 1022 (citation omitted) (quoting State v. Cameron, 104 N.J. 42, 54, 514 A.2d 1302 (1986)). Because the trial court had “found no reliable evidence of ingestion of drugs or alcohol, much less any incapacitation of judgment due to use [of] such substances,” ibid., we concurred with the decision not to charge intoxication as a defense to capital murder.
Whether the refusal of the court below to instruct the jury on intoxication constituted significant error we need not decide, because we vacate defendant’s sentence on other grounds. However, we do note that the standards for admissibility and consideration of intoxication during a capital-sentencing proceeding are not the same as the comparable standards applicable during the determination of guilt. See N.J.S.A. 2C:11-3c(2)(a) (“defendant shall have the burden of producing evidence of the existence of any mitigating factors * * * but shall not have a burden with regard to the establishment of a mitigating factor”); -3c(2)(b) (“defendant may offer, without regard to the rules governing the admission of evidence at criminal trials, reliable evidence relevant to any of the mitigating factors”); -3c(5)(d) (defendant’s capacity impaired as the result of “intoxication, but not to a degree sufficient to constitute a defense to prosecution”); cf. Smith v. State, 492 So.2d 1063, 1067 (Fla.1986) (“some evidence, however slight, that Smith had smoked marijuana the night of the murder” held “sufficient to justify giving instructions for reduced capacity and extreme emotional disturbance” in capital-sentencing proceeding); State v. Goodman, 298 N.C. 1, 32, 257 S.E.2d 569, 589 (1979) (“[w]hen the defendant contends that his faculties were impaired by intoxication, such intoxication must be to a degree that it affects defendant’s ability to understand and control his actions”); State v. Bellamy, 293 S.C. 103, 105, 359 S.E.2d 63, 65 (1987) (“if there is evidence that the defendant could be under the influence of alcohol or drugs,” court should charge on mitigating circumstances relating to reduced capacity).
4. Use of the Videotape of Dr. Eshkenazi
Defendant contends that he was denied due process of law when he was forced to use at the resentencing proceeding a five-year-old videotape of testimony of a psychiatric expert witness made during the original sentencing proceeding. According to defendant, the denial of public funds for a psychiatric expert witness before the trial in 1983 denied him the essentials of a minimally-adequate defense at the resentencing proceeding in 1989. The mere statement of that contention manifests its dubious credibility.
The court’s refusal to provide public funds for an expert witness at the time of Biegenwald’s trial was not clearly erroneous. There was no showing that defendant was indigent, a prerequisite to any entitlement to public funds for legal services. Moreover, the denial of public funds is irrelevant on the issue of due process because defendant had the benefit of psychiatric testimony from an expert witness. We are unmoved by defendant’s contention that the denial of public funds before his trial in 1983 “forced defense counsel into a position where he either had to rely on a videotape or pay for an expert out of his own pocket” during the new sentencing proceeding in 1989.
5. Ineffective Assistance of Counsel
Biegenwald argues that counsel’s decision to use the five-year-old videotape constitutes ineffective assistance of counsel because by its use counsel (1) waived the only defense to aggravating factor c(4)(c) (“depravity of mind”); (2) waived the opportunity to present testimony without regard to the rules of evidence as permitted by a 1985 amendment to N.J.S.A. 2C:11-3c(2)(b), see L.1985, c. 178; and (3) introduced an improper reference by the prosecutor to defendant’s exercise of fifth- and sixth-amendment rights. Those contentions have some theoretical appeal. We note, however, that in the prosecution for the murder of William Ward, the only evidence introduced by defense counsel during that capital-sentencing proceeding was the same videotaped testimony of Dr. Eshkenazi at issue here, and there the jury spared defendant’s life.
The standard for considering an ineffective-assistance-of-counsel claim is that “if counsel’s performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant’s conviction, the constitution will have been violated.” State v. Fritz, supra, 105 N.J. at 58, 519 A.2d 336; see State v. Davis, supra, 116 N.J. at 356, 561 A.2d 1082 (holding same standard applies in capital cases). That standard was adopted substantially unchanged from the standard announced by the Supreme Court in Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Counsel’s conduct does not clearly rise to that level. In matters of trial strategy, we accord great deference to the decisions of counsel:
With hindsight, it is not difficult to suggest different trial strategies that counsel might have pursued, but the law is settled that “[i]n assessing the adequacy of counsel’s performance, ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’” Burger v. Kemp, 483 U.S. 776, 819 [107 S.Ct. 3114, 3139], 97 L.Ed.2d 638, 673 (1987) (Powell, J., dissenting) (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). [State v. Marshall, supra, 123 N.J. at 165, 586 A.2d 85.]
Defendant does not contend that the decision to use the videotape was not a product of a thorough investigation of the circumstances and consideration of options in preparation for the resentencing proceeding, notwithstanding the conclusory statement that counsel was “forced” by financial considerations to use the tape. The record, moreover, does not indicate the extent of counsel’s investigation and planning, if any, in preparation for that proceeding. Under the circumstances, defendant’s ineffective-assistance-of-counsel claim based on the decision to use the videotape must be denied because defendant has not identified the deficiencies that materially contributed to his sentence. See State v. Fritz, supra, 105 N.J. at 58, 519 A.2d 336.
6. Aggravating Factor c(4)(c) (“depravity of mind”)
Defendant contends that application of that portion of c(4)(c) relating to depravity of mind, as construed by this Court in State v. Ramseur, supra, 106 N.J. at 197-211, 524 A.2d 188, violates the due-process clause of the fourteenth amendment of the United States Constitution. Cf. Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894, 900 (1964) (“If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.”). Defendant argues that based on the decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (Georgia provision on which c(4)(c) is modeled held unconstitutionally vague in absence of limiting construction), “Biegenwald could have reasonably believed that this factor did not apply to his case because the victim’s death was instantaneous; there was no serious physical abuse prior to death as required by the Georgia limiting construction.” According to defendant, application of c(4)(c) as construed in Ramseur, supra, 106 N.J. at 208-11, 524 A.2d 188, violates the principle underlying the ex post facto clause that “persons have a right to fair warning of that conduct which will give rise to criminal penalties.” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260, 265 (1977).
Were the “depravity of mind” portion of c(4)(c) the only aggravating factor on which the State relied in seeking imposition of the death penalty at the resentencing proceeding, defendant’s claim might present a more difficult question. However, any requirement of notice to this defendant that his conduct could produce a capital verdict was clearly fulfilled by other provisions of the murder statute, specifically the other-murder-conviction aggravating factor. See N.J.S.A. 2C:11-3c(4)(a). Consequently, even though we acknowledge that the construction of c(4)(c) adopted by this Court in Ramseur, supra, 106 N.J. at 208-11, 524 A.2d 188, is a “broader interpretation,” id. at 205, 524 A.2d 188, than that approved in Godfrey, its application to defendant did not violate the due-process clause because it neither punishes as a crime an act lawful when committed, “makes more burdensome punishment for a crime after its commission, [nor] deprives one charged with crime of any defense available according to law at the time when the act was committed.” Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 69, 70 L.Ed. 216, 217 (1925); see also Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344, 356 (1977) (quoting Beazell).
Ill
CONCLUSION
Defendant’s death sentence is vacated, and the case is remanded to the Law Division for a resentencing proceeding consistent with this opinion.
[OPINION BY HANDLER, J., type=concurrence]
HANDLER, J.,
concurring.
The Court vacates defendant’s death sentence and remands for resentencing. It bases its reversal on the inadequacy of the voir dire and expresses disapproval of the trial court’s refusal to list separately for the jury the mitigating factors under the catch-all factor, N.J.S.A. 2C:11-3(c)(5)(h) (c(5)(h)). I agree that the inadequate voir dire here requires reversal, and would add that failure to list separately the mitigating factors under c(5)(h) independently requires reversal. However; unlike the plurality, I would state specifically that individual listing of mitigating factors under c(5)(h) is constitutionally required. I would further base reversal of this sentence in part on the trial court’s failure to instruct the jury on intoxication during the penalty phase. In addition, I continue to believe that our death-penalty statute is unconstitutional as enacted, interpreted, and applied, see, e.g., State v. Marshall, 123 N.J. 1, 214-15, 586 A.2d 85 (1991) (Handler, J., dissenting); State v. Bey, 112 N.J. 123, 188-90, 548 A.2d 887 (1988) (Handler, J., dissenting), thus providing further grounds for vacating this death sentence.
I
One additional issue, brushed aside by the Court, merits attention and serves as an independent ground for reversal. Defense counsel’s actions at trial — particularly his dehumanizing presentation of defendant during summation and his reliance on a five-year-old videotape for key mitigating evidence— deprived defendant of the effective assistance of counsel.
A
During his summation, defense counsel repeatedly argued that the jury should vote to spare defendant’s life so that medical research could be performed on defendant in an effort to develop a cure for anti-social personality disorder with paranoid traits. At one point he urged:
Suppose, if he [defendant] lives, he’s studied and this is the person here that produces that miracle drug for adults. This is society's chance to do that, by keeping him alive, not by killing him. What do we gain by killing him? If we can keep him alive and study him, right, he is the opidimy [sic] of the person who should be kept alive____ You are never going to find a better subject person and you are never going to find I submit to you a subject person who has had records going back to 1963, that they can use, clinically, to study him with____ If he had AIDS, and he could have the cure for AIDS in his body, would you kill him?____ [W]ould anybody here hesitate to say ... save him, keep him alive as long as you can. What’s the difference?
Counsel returned to that theme throughout the summation. Perhaps most astonishingly, counsel concluded thusly:
I tel! you this, you have a human life here, a life that has had no value up until this day, but it’s still a human life____ But more importantly than that, you have a human life that may save many other lives. (Emphasis added.)
A defense lawyer’s function at the sentencing phase is to create a portrait of the defendant that convinces the jury, that defendant deserves to live. State v. Oglesby, 122 N.J. 522, 545, 585 A.2d 916 (1991) (Handler, J., concurring). I believe that counsel here betrayed his function by characterizing defendant as someone completely devoid of worth as a human being. Counsel’s summation dehumanized defendant, essentially portraying him as lacking any human virtue and inviting the jury to view defendant as a guinea pig, his only socially acceptable state. In so doing, counsel distanced himself from his client, communicating to the jury the irremediable repugnance of defendant. He conceded that defendant did not deserve the jury’s sympathy. To the extent that counsel had theretofore presented a meritorious case in mitigation, that case was shattered when counsel acknowledged that defendant did not deserve to live.
The summation constituted a complete capitulation to the State’s position. It conceded that defendant did not deserve to live, but urged the jury to spare him to use for the benefit of others. The Supreme Court’s recent capital punishment jurisprudence has striven to develop “a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982). “[T]he fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976) (citation omitted). Defense counsel repudiated that “fundamental respect for humanity” and denied the “uniqueness” of defendant in his summation.
In addition, defense counsel’s presentation was irresponsible and arbitrary. Even if he legitimately could have argued that defendant’s life should be spared so that he could serve as a testing ground for an experimental drug, there was absolutely no factual basis to support that argument. There was no testimony that any drug had been or could have been developed to treat defendant’s disorder; there was no evidence that defendant would consent to such testing or could be compelled to submit to it; and there was no evidence that the State would condone such experimentation or would use defendant for such undefined research. The risk that defense counsel’s bizarre theory would strike the jury as pure conjecture, if not wholly ridiculous, cannot be discounted. An attorney who treats his client’s life as a mockery cannot expect a jury to treat it with dignity.
In State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987), this Court adopted, with slight modification, the standard for determining ineffective assistance of counsel established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). This Court held that “a criminal defendant is entitled to the assistance of reasonably competent counsel, and that if counsel’s performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant’s conviction, the constitutional right will have been violated.” Fritz, supra, 105 N.J. at 58, 519 A.2d 336.
I have urged this Court to adopt more stringent standards of review of attorney competence in capital cases. See, e.g., State v. Oglesby, supra, 122 N.J. at 543-45, 585 A.2d 916 (Handler, J., concurring); State v. Savage, 120 N.J. 594, 644-47, 577 A.2d 455 (1990) (Handler, J., concurring in part and dissenting in part); State v. Davis, 116 N.J. 341, 402-13, 561 A.2d 1082 (1989) (Handler, J., dissenting in part and concurring in part). I need not restate that position. Even under the Court’s lenient Strickland-Fritz standard, however, defense counsel’s conduct indisputably rose to the level of ineffective assistance of counsel. He denied that his client had intrinsic dignity as a human being. See Handler, Individual Worth, 17 Hofstra L.Rev. 493 (1989). He utterly dehumanized his client, thereby effectively abandoning him. He may well have convinced the jury that defendant had no worth as a human being and deserved to die, precisely the opposite of what capital counsel are duty bound to do. There can be no doubt that defendant suffered prejudice because of his attorney's devastating remarks.
B
As noted by the Court, at resentencing defense counsel relied on a five-year-old videotape of testimony of a psychiatric expert witness, Dr. Eshkenazi, made during the original sentencing trial. Ante at 54-57, 594 A.2d at 200-201. The majority concedes that defendant’s arguments that reliance on this videotape constituted ineffective assistance of counsel “have some theoretical appeal.” Ante at 55, 594 A.2d at 200.
Defense counsel’s seeming decision to rely on the videotape, rather than conduct any new investigation in preparation for this retrial, deprived defendant of competent representation. Although defense counsel had used the videotape successfully in a previous capital trial for the murder of William Ward, that trial occurred five years before this sentencing proceeding, shortly after the original trial and sentencing in this case. Furthermore, although the videotape had been used successfully in the Ward trial, Eshkenazi’s testimony had failed to persuade the jury in the first trial for the murder of Anna Olesiewicz.
Although whether counsel conducted any new investigation prior to the resentencing proceedings is unclear from the record, he indicated in papers submitted to the trial court before the proceeding that he planned to rely solely on the videotape. Defense counsel told the jury he was relying on the videotape for “expediency.” There is no indication in the record, however, that defense counsel sought to arrange or change court dates so that Eshkenazi would be able to testify in person. Also, defense counsel never intimated prior to the resentencing that lack of funds had prevented him from calling Eshkenazi to testify in person, nor did counsel request prior to the resentencing that the trial court authorize payment for Eshkenazi as an expert witness. Indeed, defense counsel never challenged, prior to the subject proceeding, the earlier denial of State funds for a psychiatric evaluation. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (if sanity is likely to be significant issue at trial, State must provide defendant with access to psychiatrist if defendant cannot afford one).
As a consequence, there is no evidence that defense counsel investigated or determined prior to resentencing whether a new psychiatric evaluation, either by Eshkenazi or by some other expert, would benefit defendant’s sentencing defense. The inference arises that defense counsel did not make any effort to uncover new evidence or “update” existing evidence of defendant’s psychiatric condition at the time of the crime.
That defense counsel made no effort to investigate the possibility of other mitigating factors, or to develop any other evidence of mitigating factors or evidence to counter the State’s alleged aggravating factors, also seems apparent. The record reveals nothing defense counsel did to mount a defense to the death sentence, except to rely on the videotape. That is inexcusable. See State v. Savage, supra, 120 N.J. at 626, 577 A.2d 455 (“if defense counsel had presented additional information at the penalty phase regarding defendant’s mental state, there is a reasonable probability that a jury” would not have imposed the death penalty); id. at 643, 577 A.2d 455 (Handler, J., concurring in part and dissenting in part) (“total forfeiture” in “preparation and presentation” of defendant’s case in mitigation constituted ineffective assistance). Defense counsel, knowing the videotape was five years old, should have sought other witnesses, particularly to establish the existence of the catch-all factor, c(5)(h).
The Court adheres to a two-pronged test for ineffective assistance.
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.]
That defense counsel had priorities other than his client is very clear. He sought to proceed quickly with the case. For one, he intimated that he was impatient with the voir dire because he was not getting paid. He also declined the opportunity to edit the videotape in order to remove indications that the tape was old. Defense counsel instead told the court, “Just let it fly.” Many of counsel’s decisions seem to have been hasty and impatient even though the court did not apply any pressure to accelerate the proceedings. I can see no tactical advantage in the decision to use a stale videotape in a death-penalty case. Defense counsel himself described the decision as expedient. That failure to prepare adequately for the resentencing denied defendant the effective assistance of counsel.
II
I concur in the vacating of defendant’s sentence of death.
In Voir dire, defense counsel declined to employ a struck jury system, even though the trial court went out of its way to make clear to defense counsel that the court would gladly use the struck jury system and that the court was in no hurry.
THE COURT: Mr. Diamond?
MR. DIAMOND: I won’t have any objection to voting on these jurors right now and see what we end up with. We may not have to go through 45. Seem to be moving a lot better than we did in the previous trial.
Why should we go through 45 people for another week when we might have the first 14 or 15?
THE COURT: Why don't we go through this morning and then if you want to try it that way, I’ll do that intermediate way of doing it, sure, because if we go through this morning we’ll probably have about 20 people or so, I would guess, we have how many now, 13, 14 qualified.
Now, I don’t think there’s any sense in starting now because you know, just one is going to make us go through the process again. Are you in a rush?
MR. DIAMOND: Rush?
THE COURT: Are you in a rush?
MR. DIAMOND: I can’t see interviewing 45 people, the first 20 will do it.
THE COURT: That means you are in a rush.
MR. DIAMOND: I would like to get started, I don’t think we’re going to need that many jurors.
MR. DIAMOND: He’d like to stay here forever.
(Laughter).
THE COURT: I know it will take 14 plus 20 plus 12 and I know I have got a solid jury.
MR. DIAMOND: I don’t think it’s going to take that many.
[OPINION BY GARIBALDI, J., type=dissent]
GARIBALDI, J.,
dissenting.
Today the Court vacates the death sentence of Richard Biegenwald for the murder of Anna Olesewicz and remands for yet another penalty-phase proceeding. The majority concludes that the jury voir dire was constitutionally deficient. I disagree. I conclude that the overall voir dire was adequate and that the defendant received his constitutional due: a fair and impartial jury. Accordingly, I dissent from the majority’s ruling and would affirm the defendant’s sentence of death.
I
Overall Voir Dire
The purpose of voir dire is the creation of an impartial jury. State v. Williams, 113 N.J. 393, 409-10, 550 A.2d 1172 (1988) (Williams II); State v. Biegenwald, 106 N.J. 13, 29, 524 A.2d 130 (1987). The test for determining if one may serve as a juror in capital cases is whether the prospective juror’s opinions, be they for or against the death penalty, would “ ‘prevent or substantially impair the performance of his duties in accordance with his instructions and his oath.’ ” State v. Bey, 112 N.J. 123, 151, 548 A.2d 887 (1988) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581, 589 (1980)); see also State v. Ramseur, 106 N.J. 123, 255, 524 A.2d 188 (1987) (quoting same). “ ‘The quest is for jurors who will conscientiously apply the law and find the facts.’ ” State v. Koedatich, 112 N.J. 225, 293, 548 A.2d 939 (1988) (quoting Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851, 83 L.Ed.2d 841, 851 (1985)), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). The examination of each juror’s views on capital punishment, however, must be sufficiently probing to assure compliance with the governing legal standards and to expose potential bias. State v. Perry, 124 N.J. 128, 155, 590 A.2d 624 (1991); State v. Hunt, 115 N.J. 330, 354, 558 A.2d 1259 (1989).
Determining whether a voir dire is adequate requires an examination of the entire record. It is a fact-sensitive task. As this Court has previously recognized, the voir dire process frequently takes on a “rhythm of its own.” State v. Dixon, 125 N.J. 223, 244, 593 A.2d 266, 276 (1991); State v. Moore, 122 N.J. 420, 447, 585 A.2d 864 (1991). Each judge conducts voir dire in his or her own way. The creation of an impartial jury, through the process of voir dire, follows “no particular tests” and “is not chained to any ancient and artificial formula.” United States v. Woods, 299 U.S. 123, 145-46, 57 S.Ct. 177, 185, 81 L.Ed. 78, 88 (1936); see also Mu’Min v. Virginia, — U.S.-, -, 111 S.Ct. 1899, 1917, 114 L.Ed.2d 493 (1991) (Kennedy, J., dissenting) (noting that “[tjhere is no single way to voir dire a juror” and that he “would not limit the trial judge’s wide discretion to determine the appropriate form and content of voir dire questioning”). Because an assessment of an individual juror’s impartiality rests on a close personal examination, this Court has accorded trial courts great deference in conducting voir dire. State v. Koedatich, supra, 112 N.J. at 275, 548 A.2d 939; see also State v. Jackson, 43 N.J. 148, 160, 203 A.2d 1 (1964) (“The trial court is vested with broad discretionary powers in determining the qualifications of jurors. * * * [I]ts exercise of discretion will ordinarily not be disturbed on appeal.”), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). In State v. Singletary, 80 N.J. 55, 402 A.2d 203 (1979), we set forth the rationale underlying that rule of deference:
Decisions concerning the potential bias of prospective jurors are primarily subjective in nature. They require at bottom a judgment concerning the juror’s credibility as he responds to questions designed to detect whether he is able to sit as a fair and impartial trier of fact. Consequently, such evaluations are necessarily dependent upon an observation of the juror’s demeanor during the course of voir dire — observations which an appellate court is precluded from making.
Although a juror’s professions of impartiality will not always insulate him from excusal for cause, see, e.g., State v. Jackson, supra; State v. Deatore, [70 N.J. 100, 358 A.2d 163 (1976) ], they will be accorded a great deal of weight, see, e.g., State v. Grillo, [16 N.J. 103, 106 A.2d 294 (1954) ]; State v. Jefferson, 131 N.J.L. 70, 72 [34 A.2d 881] (E & A 1943). Inasmuch as the trial judge observed the venireman’s demeanor, he was in a position to accurately assess the sincerity and credibility of such statements, and we should therefore pay due deference to his evaluation. [Id. 80 N.J. at 63, 64, 402 A.2d 203.]
In State v. Biegenwald, supra, 106 N.J. at 35-37, 524 A.2d 130, and State v. Ramseur, supra, 106 N.J. at 256-57, 524 A.2d 188, this Court reaffirmed its special deference to the trial court in reviewing voir dire. “A sensitive weighing and appraisal of a juror’s entire response must be made by the trial court in its duty to resolve the question of whether the juror has shown bias or prejudgment.” State v. Ramseur, supra, 106 N.J. at 257, 524 A.2d 188. Except in the rarest of circumstances, appellate judges should follow the prudent course of deferring to the court that was in the position to make such a close, personal inspection. State v. Williams, supra, 113 N.J. at 411, 550 A.2d 1172; see also Wainwright v. Witt, supra, 469 U.S. at 425-26, 105 S.Ct. at 852-53, 83 L.Ed.2d at 852-53 (noting that deference should be given to trial court decisions because “there will be situations where the trial judge is left with the definite impression” regarding a prospective juror despite a “lack of clarity in the printed record”); State v. Hunt, supra, 115 N.J. at 357, 558 A.2d 1259 (noting “sound measure of discretion” given to trial judges).
We measure the adequacy of the trial court’s inspection of prospective jurors by its character and tone, not by any one question of the court or one response of a venireperson. State v. Zola, 112 N.J. 384, 397, 548 A.2d 1022 (1988); State v. Ramseur, supra, 106 N.J. at 256-57, 524 A.2d 188. Unlike the majority, after reading this “unanimated” record, I find that the voir dire as a whole was sufficiently probing to weed out any prospective jurors whose ability to decide defendant’s correct sentence was impaired.
The voir dire spanned three days. The trial court took numerous precautions in conducting the voir dire. All prospective jurors completed a questionnaire. The questionnaire contained general questions concerning the juror’s age, marital status, age and sex of children, occupation, physical condition, familiarity with defendant, the prospective witnesses, and the lawyers in the case, whether the juror or a member of his or her family or a close friend was employed in law enforcement, had ever been charged with a criminal violation or had ever been the victim of a crime. Each potential juror also was asked whether he or she had heard of a murder case involving defendant from any source and whether they had discussed defendant with anyone. Finally, each juror was requested to disclose any personal bias or prejudice that they believed would disqualify them from serving as a juror.
As each prospective juror was questioned individually, the court reviewed his or her questionnaire and inquired about any answer that raised a concern. For example, if the prospective juror was a young woman or had young women family members, the court would ask whether that fact would create a bias against a defendant convicted of murdering a young woman. Invariably the court- also asked each venireperson if he or she had any preconceived bias or prejudice against psychiatric testimony.
The trial court’s general instruction to the potential jurors set the tenor of the voir dire early in the proceeding.
The point [is] that you have to evaluate yourselves, the judge will explain the case to you, introduce the various people connected with it and you have to listen and say would I then able to be fair and impartial and objective on that case? Could I be open minded? Could I listen to all the witnesses and listen to the judge and then call it fairly?
And if you think yes, fine, sit there, but if someplace along the line you get the idea that gee, maybe I oughtn’t be a juror on this case for whatever reason, * * *
[w]ell, that’s okay. Everybody is entitled to their opinion ... [but] the juror should not just forget about the law when they are sitting deciding the case. The jurors take an oath to observe the law, to follow the law. But if you ever got yourself in a situation like that where you are a prospective juror and you have strong feelings, okay. You are entitled to the feelings, but you should not sit as a juror on that particular case. That's all we try to do in the jury selection.
***** ***
I want to assure you that there are no things such as the right answers or the wrong answers to the questions that we put, either the written questions or the oral questions. All we want are honest answers. You know we’re not trying to measure you to somebody’s standards. Try to give us an honest evaluation of yourself and that’s all we ask.
By the same token, if for some reason you should kind of fudge an answer on the questionnaire or fail to answer a question you really ought to answer, that would not be the right thing, we need that openness, frank response, because otherwise if you conceal something, it could result in a terrible miscarriage of justice which nobody wants. [Emphasis added.]
That instruction went beyond dispelling the notion that there were any “right” answers. See State v. Dixon, supra, 125 N.J. at 246, 593 A.2d at 277. It impressed on jurors that they should report anything possibly compromising their duty or oath directly to the judge, regardless of when it occurred. On the morning of closing arguments, the following occurred:
(The following was recorded in chambers.)
THE COURT: You have asked to talk with me, we will just make a record of it so we know what’s going on?
A JUROR: Right. This weekend, I found out something I didn’t know.
THE COURT: Yes?
THE JUROR: My husband’s brother who I have never met, never seen, who I don’t consider family, he’s in Trenton State Prison, which I wasn’t aware of.
THE COURT: Would that affect you as a juror?
THE JUROR: Well, no, I was thinking, I don’t want to cause a mistrial.
THE COURT: Well, don’t worry about that. But you didn’t know this man at all, your husband’s brother, you never met him?
THE JUROR: No.
THE COURT: So all you have learned over the weekend is information he’s in Trenton State Prison?
THE JUROR: Right, he called Friday night.
THE COURT: When he called, did he have a specific message for your husband?
THE JUROR: No.
THE COURT: And your husband didn’t say anything to you more than that?
THE JUROR: More than how are you doing?
THE COURT: What did your husband say to you about his telephone conversation with his brother?
THE JUROR: Nothing, he told me Tommy had called.
THE COURT: But how did you discover somebody was his brother then?
THE JUROR: He told me, I knew his brother was in jail, I didn’t know where or why or anything, and—
THE COURT: Okay. Don’t get nervous, I understand where you are, that’s all. You knew your husband had a brother who was kind of a ne-er-do-well, criminal of some sort in jail someplace?
THE JUROR: Yes.
THE COURT: Up until the weekend you didn’t know where. You tell me the only additional bit of information you got was — where was it, Trenton State Prison?
THE JUROR: Right.
THE COURT: Now, I’m asking you, bottom line, is that going to affect you somehow, that knowledge now, affect you somehow in deciding this case?
THE JUROR: No, I don’t see why it would.
THE COURT: You are the only one who can tell me?
THE JUROR: No, doesn’t make any difference to me.
THE COURT: Okay. Do me a favor, go back to the jury room. Don’t mention anything to the jurors about what we have talked about here. Sit tight, I’ll be talking to the lawyers. If they have a problem I’ll let you know. But thank you very much for letting me know.
(The juror leaves the chambers)
THE COURT: On the record, with the counsel in chambers here. Mrs. R. indicated to the Court officers this morning that she wanted to speak with me and I brought her in here with the reporter and I asked her what she wanted [to] talk about and she said this: That she didn’t know up until Friday night that her husband’s brother was an inmate in the State prison.
She did know before Friday that her husband had a brother who was kind of a ne’er-do-well and was in jail someplace. She has never met the brother, never talked to the brother, but Friday night the brother called her and said, "Hi, how are you?” And the husband indicated to her and all he indicated to her was "That’s my brother calling from the State prison.”
I asked her on the record, “Do you think that would somehow affect your judgment here as a juror?” And she said, “No, I don’t know why it would.” I said, “Okay. Go back in the jury room, I’ll talk to the lawyers and if they have a problem we’ll be in touch with you further.” That’s where we are. MR. DIAMOND: I have no problems with that.
MR. FAGEN: Well, I sure would have liked to ask her more questions.
THE COURT: I’ll bring her in if you want more questions.
MR. FAGEN: Well I may give it some thought?
THE COURT: Okay, I’m not rushing.
THE COURT: I have asked Mr. Fagen whether he would like to.question the juror further and he said—
MR. FAGEN: No.
THE COURT: And I understand it’s satisfactory to both sides to allow her to continue?
MR. DIAMOND: Yes.
Alternate Juror Mrs. R.’s concerns and behavior exhibit a juror educated to the solemnity of her task and recognizing the on-going need to assure not only fairness and impartiality but the appearance of fairness and impartiality.
Only by reading the entire voir dire can an appellate court ascertain whether the trial court’s voir dire is adequate. The questioning of venirepersons Mr. Z., Mr. S., and Ms. C. impresses me as indicative of the character of the overall voir dire. The persistence of the court in unearthing potential prejudice and in allowing, indeed forcing, jurors “to air their views on the death penalty” in their own words, State v. Hunt, supra, 115 N.J. at 354, 558 A.2d 1259, demonstrates the adequacy of that court’s inquiries.
Q Mr. Z., the answers you gave us on this questionnaire are the truth I take it?
A Yes, sir.
Q You have lived in Monmouth County a long time now, you indicate that you have served as a juror during that long time that you have lived here?
A Yes I do.
Q How long ago was that?
A A round three years ago, your Honor.
Q Here at the Courthouse?
A Yes.
Q Do you recall what kind of cases you may have sat on as a juror?
A The one I sat on?
Q What kind of case was it?
A It was criminal charge of rape.
Q Did you go all the way through to a verdict?
A Yes.
Q Anything about that experience sitting as a juror on that case, any impressions you may have formed which you feel might affect you in one way or another sitting as a juror on this case?
A No, I don’t think so, sir.
Q There is a difference, obviously, with a rape case, sometimes you may have strong feeling about the process or something of that nature as the result of your service, you don’t have those very strong feelings?
A No, sir.
Q You did cheek off the fact that you have heard of Mr. Biegenwald, and that you read of a case involving him?
A I read it at the time of the case, I read the newspaper about it, but as I indicated, I didn’t discuss it or anything, I really forgot.
Q What do you remember about reading, that’s the next question?
A Hardly anything, sir.
Q Well, what do you remember reading?
A That it was quite a — what shall I say — sensational, you know, just—
Q Aside from the fact it may have made headlines, what content do you recall, what facts?
A I recall something about, maybe I mixed it with something else, something like it was in the parking lot or something like that, if this is the one, I don’t know, but that’s all.
Q You recall something about a parking lot?
A Yes, sir, I couldn’t say I did not hear of it.
Q Okay, that’s fair. What we’re trying to figure out is what might be still ■ in the back of your head?
A Hardly anything, your Honor, because I don’t recall fully what it was all about.
Q All right. Are you saying that if you should sit as a juror on this case in that jury box, that you would decide the question of what the proper penalty is based solely upon what you hear in this Courtroom?
A I believe so, yes.
Q And whatever it is, that faint memory you have, you will put that aside, is that what you are saying?
A Yes, I think I would.
Q We’re asking — we wouldn’t want a faint memory to blossom out to be big and affect your decision in this case?
A I understand.
Q You don’t think that would?
A No, I don’t think so.
Q One of the possibilities, and there are only two, is the death penalty. What are your views concerning the death penalty?
A I have no firm conviction either way, I think that I’m not against it and I’m not totally for it. I would be for it in certain circumstances.
Q Okay. So depending upon the circumstances?
A Yes, sir.
Q Well, that’s another way of saying depending upon the good things and the bad things that are revealed to you in the courtroom?
A I would say so.
Q I don’t want to put words in your mouth, that’s what you are saying?
A I would think I would have to find in my own mind whether it’s justified.
Q But it’s depending upon how things come out, you could go either for the death penalty if you think it’s right or for life imprisonment with no parole for 30 years?
A I think I could, yes, sir.
Q Some of the testimony as I indicated this morning will be psychiatric testimony which will be given to us by Dr. Eshkenazi.
Do you think there’s anything about psychiatric testimony just as such that would make you feel you might not listen to it or sort of poo-poo it or put it aside?
A No, I have no feeling about it at all.
Q One way of the other?
A Yes, sir.
Q Are you saying you would listen to it?
A I would listen to it and judge it on its merits, sir.
********
THE COURT: Mr. Z., thank you, take a seat in the jury room there and don’t engage in any discussion with the jurors who are ahead of you in this case, if you want to talk about the weather or sports, it’s all right.
A Thank you, sir. [Emphasis added.]
The trial court, influenced perhaps by the tone of the responses or the demeanor of the responder, asked follow-up questions regarding the possible effect of prior jury service, knowledge of the Biegenwald case, the death penalty, and psychiatric testimony. Those questions were neither close-ended nor suggestive. Furthermore, even if they could have been misunderstood to be so, the court dissipated the effect of that misunderstanding by stating that it did not “want to put words in [the venireperson’s] mouth.”
The voir dire of venireperson Mr. S. also demonstrates the patient probing that characterized much of the voir dire.
Q You did say that either you personally or some member of your family was the victim of a crime?
A Yes.
Q What was that about?
A It was an assault.
Q Who?
A My mother.
Q How long ago was that?
A Approximately two years ago, she answered the door to her house and she was accosted at gun point.
********
Q Did they find the person who did it?
A They did, and I believe he was convicted, yes.
Q Is there anything about your mother’s experience which certainly was a terrifying one, that has affected you to the point where it may influence your judgment some how or other here?
A It has in a way because it was an emotional experience. I was upstairs at the time and I wasn’t aware of what was going on downstairs. So I felt I could have done something, quite a duress for my mother.
Q But you understand that was a separate incident?
A Yes.
Q You think the memory of it would linger onto the point where when you came to decide what the appropriate penalty is in this case, it might affect you in coming to that decision?
A I can’t be sure of that because—
Q Well, nobody can be sure. We’re trying to probe you?
A Yes, I understand.
Q You understand how this case will work?
A Basically.
Q Okay. Because what will happen, so you are clear, is that there will be information presented to you, evidence as to what they call aggravating factors and mitigating factors, and in shorthand form the aggravating factors are the minuses if you will, mitigating factors are the pluses insofar as the death penalty is concerned.
And then at the end of that presentation I’ll explain the law that applies to the jurors when they come to do the weighing of those pluses and minuses. Do you think that you would be able to listen to the law as I explain it, accept that, then make your own independent evaluation of the evidence that’s given to you and then come to a conscientious decision as to which penalty is the right one without being influenced by your mother’s experience?
A I would hope that I would be — I think I can do that, yes.
Q You have served as a juror before yourself?
A Yes.
Q When was that?
A Must have been about four years ago in Bergen County, Hackensack.
Q Remember what kind of case it was?
A Vandalism.
Q Anything about that experience as a juror or anything about what you heard during that case which again you feel would affect your judgments as a juror if you are sitting here?
A I don’t think so in that case, no.
Q One of the witnesses who will testify as I indicated to the jurors is a Dr. Eshkenazi. Dr. Eshkenazi is a psychiatrist. Do you have any pre-conceived notions about the value of psychiatric testimony?
A My own personal feelings about psychiatry can be — I feel it can be misleading in some respects, I don’t think so — it can be misleading in my own opinion.
Q Well, maybe it can be in the hands of some psychiatrists. The question is here, you’ll see Dr. Eshkenazi, you will listen to him, do you think that you’ll be able to decide whether his testimony is valuable testimony to you in deciding what the appropriate penalty should be or will you just say okay, here comes another psychiatrist and forget about paying any attention to him?
A Well, I’m a law man, I don’t know, it would probably lay with the rest of the evidence, I don’t know where it is.
Q You can talk about any kind of medical man or professional man and there are good and bad in any profession.
A Yes.
Q You wouldn’t take it — you tell me if I’m wrong — you wouldn’t just simply backhand psychiatric testimony and say forget about it?
A No I certainly wouldn’t.
Q And as to the death penalty, what is your view of that?
A That it could be appropriate or not appropriate. I’m — my feeling is yes, I do believe.
Q Yes what?
A I’m for that.
Q For it all the time?
A I feel that — well, it’s hard to answer because — how can I say it, I don’t know if you can rephrase that. I mean—
Q I’m not trying to prompt you but we’re trying to—
A I’m trying to give you the right answer.
Q There’s no right answer. Give me the answer from the heart?
A Could you tell me—
Q What do you think about the death penalty?
A I think it’s right.
Q In all cases, that was my follow up question, all the time?
A Oh, I’m sorry, no I guess there’s—
Q In other words, Mr. Biegenwald is sitting there as a murderer. Are you going to say you get the death penalty without going any further?
A No, it wouldn’t be fair.
Q Of course it wouldn’t be. Might you be doing that?
A No, not consciously I wouldn’t do that. I would tend to be fair about it judgment wise in my own, if that answers your question.
Q Well, see, there is no answer that you have to please me with, we just want to know —
A I didn’t know how to phrase it really, it’s a little—
Q Well, pluses and minuses, good and bad, weighing of good and bad always indicates the possibility you could go one way or another. I’m not so sure that possibility exists for you.
A I had some very strong feelings about the death penalty, being more sort of proper in that respect. That’s my honest opinion.
THE COURT: Any other questions?
MR. DIAMOND: Could we have a brief side bar?
THE COURT: Sure.
(The following was recorded at sidebar.)
THE COURT: I’m inclined to excuse him for cause.
The Court excused Mr. S. for cause.
The voir dire of Mr. S. captures the trial court’s approach and attitude for voir dire. “We’re trying to probe you,” “you tell me if I’m wrong,” “I’m not trying to prompt you,” “there’s no right answer,” “[g]ive the answer from your heart,” and “there is no answer that you have to please me with” illustrate the court’s willingness to delve deeply when it believed a venireperson was less than forthcoming. See State v. Dixon, supra, 125 N.J. at 246, 593 A.2d at 277. The court’s directness is refreshing because “plain speaking is the best way to get at such predisposition.” State v. Moore, supra, 122 N.J. at 445-46, 585 A.2d 864.
Typical also of the openness of the trial court’s questioning regarding a juror’s views on the death penalty is the following exchange between the court and potential juror Ms. C.:
Q Since the death penalty is a possible choice we would like to know what are your views on the death penalty?
A Well, I really don’t know what to make of it, really, yet, because I never have to go through that myself. And as far as I see about the death penalty, it has some good points and some bad points, a good point is that for one thing, the taxpayers won’t have to spend the money to support the criminal. And the bad thing is that you can always encounter the fact a person could be innocent and in killing that person. So by doing that you yourself are a criminal.
Q I didn’t hear that, by doing what?
A By doing that incorrectly you yourself are the criminal.
Q Aha. Well, okay, how would that affect you, you are entitled to those views, how would that affect you if you were selected as a juror?
A I would feel bad if I didn’t do the best I could, I do the best I can based on what the evidence shows me, if I did bad, I didn’t make a good choice, then I would feel bad.
Q Well, I’m sure anybody would. But with all those feelings that you have now, how would that react on your ability to sit as a juror?
A Whatever I do, I do according to what’s presented to me and if I made that choice, I made it because that was what was presented to me.
Q Are you saying that you want to be sure?
A Yes, I want to be sure I make the right choice, if I made that choice because I did it when I thought about it, not because I just did it hastily.
Q You understand this not flipping a coin.
A Yes, you are putting a person in line.
Q In line with those views you have expressed, do you believe if you sat there now, imagine you are sitting there, there will be evidence presented to you on what are called these aggravating factors and there will be evidence presented to you on mitigating factors. Do you think you’d be able to listen to both of them and sift through them and evaluate them and come to a decision based upon the law as I’ll explain it to you?
A Yes, I could do it.
********
Before ending Ms. C.’s voir dire the court asked, as it almost invariably did, “[a]ny additional questions?” The following dialogue then took place.
MR. DIAMOND: Yes, your Honor. I believe Miss C. stated one of the problems she had with the death penalty was the alternative of the State having to take care of the person, the cost factor.
THE COURT: Yes.
MR. DIAMOND: The two alternates, one is death or the State taking care of this person for the rest of his life, would that affect your decision, the cost factor.
THE COURT: As a taxpayer, would you think to yourself that I’m a taxpayer paying for this and therefore I will vote for the death penalty and not—
MR. DIAMOND: In other words would you rather kill him than feed him?
THE COURT: Let her answer my question first?
A. Well, I don’t see the money anyway, I wouldn’t even know exactly if that person has been supported by my taxes.
THE COURT: Is that going to be in your mind when you are deciding as to whether to impose the death penalty or not?
A No, what would be in my mind is, should that person deserve death or life, that’s all, and whatever is presented to me, I really don’t even know if it’s going to make any difference in paying him because it’s not going to matter, maybe a couple of cents.
Q You are not going to be thinking dollars and cents?
A No, of course not. I wouldn’t be, it’s just whether the person is going to live or going to die, simple as that, but I’m not going to think of anything else, money doesn’t really make a whole lot of difference if a person—
THE COURT: Bottom line value is human life?
A. Right.
Ms. C.’s voir dire was then concluded.
Each of the foregoing examples (voir dire of Mr. Z., Mr. S., and Ms. C. as well as the general instruction) combines with the admittedly-proper voir dire of venireperson Mr. R. to demonstrate the overall sufficiency of the voir dire.
The majority points to the voir dire of juror Mr. M. to provide “a sense of the court’s approach to death qualification.” Ante at 36-37, 594 A.2d at 190. However, the majority ignores Mr. M.’s actual responses and does not consider the effect of the non- or extra-verbal modes of communication and observation that give trial courts an overwhelming advantage over appellate courts in assessing the character of a venireperson’s responses.
“We can profit from an occasional reminder of the limitations that our isolation from the courtroom imposes on a full appreciation of the trial dynamics. * * * A bloodless record conceals subtle nuances; although we cannot always sniff them out, they do not often escape detection by our trial judges.”
[State v. Gilmore, 103 N.J. 508, 547, 511 A.2d 1150 (1986) (Clifford, J., dissenting) (quoted in State v. Ramseur, supra, 106 N.J. at 260, 524 A.2d 188).]
Instead the majority focuses on an ensuing colloquy between counsel and the court, during which the court said of venireperson Mr. M.’s response, “You may not like that answer but it’s absolutely the correct answer.”
I agree with the majority’s abstract point that “the suggestion in the colloquy that there is a ‘correct’ answer to the open-ended question ‘what are your views on the death penalty?’ is most troubling.” Ante at 39, 594 A.2d at 192. If the record indicated any attempt by the trial court to condition, coerce, or predetermine a venireperson’s response or to qualify an unqualified juror, I would agree with the majority. However, the majority’s hyper-technical sensitivity confuses a shorthand, imprecise description used among learned participants, out of earshot of the jury panel, with an improper attempt to suggest or elicit an untruthful, less-than-honest “qualifying” response. Cf. Wainwright v. Witt, supra, 469 U.S. at 433-34, 105 S.Ct. at 856-57, 83 L.Ed.2d at 857 (“[rjelevant voir dire questions * * * need not be framed exclusively in the language of the controlling appellate division opinion; the opinion is, after all, an opinion and not an intricate devise in a will”). An imprecise description (that of calling a “qualifying” answer a “correct one”) exchanged between officers of the court belies the repeated attempts here to elicit the actual, rather than the acceptable, beliefs of jurors.
This trial court conducted a voir dire that did, indeed, “draw out the potential juror’s views, biases, and inclinations and [that] provide[d] both counsel and the court the opportunity to assess the venireperson’s demeanor.” Ante at 39, 594 A.2d at 192. The trial court certainly never exhibited an intent to elicit a “correct” answer. See State v. Dixon, supra, 125 N.J. at 246, 593 A.2d at 277 (voir dire questions “did not attempt to force the jurors into any mode”). In fact, the court specifically warned against any such notion. More importantly, by focusing only on the dialogue between the trial court and defense counsel after Mr. M.’s voir dire rather than on Mr. M.’s voir dire itself, the majority erroneously concludes that the voir dire of juror Mr. M. is inadequate. I agree with the Court’s observation that Mr. M.'s voir dire could have been more probing — indeed, I suspect the same could be said of any voir dire. Cf. Mu’Min v. Virginia, supra, — U.S. at-, 111 S.Ct. at 1904, 114 L.Ed.2d at 504 (“[t]o be constitutionally compelled, it is not enough that such questions might be helpful”). However, his voir dire certainly was adequate. Ibid.; see also id. at-, 111 S.Ct. at 1909 (O’Connor, J., concurring) (that “the trial judge could have done more” does not automatically mean that a Sixth Amendment violation has occurred).
RANDALL MITCHELL, sworn.
EXAMINATION BY THE COURT:
Q Take a seat there, please. You tell us that you and your family have lived
in Oceanport for two years, where did you live before Oceanport?
A Toms River before that and Bradley Beach before that.
Q Okay. You indicate that during some period of time you had heard of Richard Biegenwald. How did that occur?
A Just through the papers back at that time.
Q Back some years ago?
A Oh, yeah.
Q Do you recall what it was through the papers that you read back then?
A No, I have just read the name, having seen it in the papers.
Q In what context?
A In relation to some type of a trial or, you know, you have stories that you don’t really know the contents about but you remember certain individuals that were involved, that’s about it.
Q All right. When you say that’s about it, is there any precise fact that you remember from that time or from whatever you read?
A Actually, no, it was just a name, familiarity only because I have lived in the county for a number of years.
Q None of your family members or you have ever been connected with police work or Prosecutor’s office or anything of that nature I take it from your answers?
A Correct.
Q These answers are all true answers?
A Yes, sir.
Q You have never sat as a juror before?
A No, sir, I have not.
Q You work for Bridgewater Wholesalers and you are the manager of a wholesale — what is that?
A Well, it’s basically building materials, wholesale.
Q Building materials wholesale?
A Right, up in Somerset County.
Q All right. And your wife is a dental office manager?
A Right.
Q You have some small children, you have a girl who is age 12 I see. The victim in this case, Anna Olesiewicz was a young female, there’s anything about having a young daughter and a young female victim that you think is going to affect your decision if you should sit as a juror?
A No, I don’t think so, primarily one of the reasons is my daughter doesn’t live with me, she lives with the mother.
Q Well, all right, wherever she lives, the question is still the same?
A No, that doesn’t seem to create a problem for me.
Q All right. The obligation of the jurors here in this trial is a limited one as I explained, has to do with which penalty is appropriate to this situation based upon aggravating factors that are presented and mitigating factors that are presented. Unless those words throw you, I don’t think they should, but aggravating factors would be those things which would tend to lean you towards the death penalty, mitigating factors would tend to lean you away from the death penalty and toward life imprisonment with no parole for 30 years, those are the two options?
A Yes.
Q Since death is a possible option, what do you think generally about the death penalty?
A It applies in certain cases and sometimes it doesn’t, it’s not something that I have taken a position on definitely, that it goes or doesn’t go in cases.
Q There are some people conscientiously think the death penalty should never be imposed and they are entitled to that view. That’s not your view?
A No.
Q There are also some folks who are more, if you will, hard-nosed and they would say if there is a murder involved whoever is convicted of that murder should get the same penalties, death penalty. Are you of that persuasion?
A No, I think you have to weigh each case by its merits.
Q Okay. Part of the evidence that will be presented to you is that of Dr. Eshkenazi, I mentioned his name yesterday, he’s a psychiatrist. Anything about psychiatric testimony which you think is less worthy of acceptance than maybe other kind of medical testimony?
A No, sometimes, in some cases it’s very valid.
Q At the end of the case after you have heard all the evidence on the aggravating and mitigating factors, I’ll be explaining to all the jurors who sit how they should handle those and what principals of law apply to the decision. I tell you that your obligation under your oath is to accept the law as I explain it and not to substitute for it your own views as to what you think the law is or what it ought to be, you think you can do that?
A Yes, sir, I do.
Q Sitting there now and knowing it’s important to all of us, you think that if you are selected as a juror on this case you would be able to sit, listen in that open minded way that I have described before, make your evaluation and then decide what is the appropriate penalty and do that fairly objectively and conscientiously?
A I believe so.
THE COURT: Any additional questions of the prospective juror? All right. Then thank you, Mr. M., will you take a seat in the jury room please, there are others there, don’t discuss this case. Oh, one question I didn’t ask. Yesterday I was very emphatic about not listening to anything, reading anything that has to do with this case. Now I understand there may have been something on T.V. last night, I understand there may have been something in the paper. Did you do any reading or listening?
A I chuckled only because I fell asleep last night.
Q All right. That’s good, before you fell asleep did you see anything on T.V. and this morning did anybody have a newspaper you happened to see?
A No I brought some of my own paperwork.
THE COURT: Okay, bring your own paperwork, don’t look at any newspapers.
MR. DIAMOND: Your Honor there is one question I had, on number 19, ever heard of a murder case involving — I believe the juror said he recalled the headline but not the facts, but here there is a specific mention he said yes to having heard of a murder case, his recollection then is of a murder and I would like to inquire of that.
THE COURT: Of the recollection that you said you had about Richard Biegenwald, was that in connection with the murder?
A Not really, no.
THE COURT: Well, that’s what you checked here?
A It was — I tried to get that — I checked it only because I wanted to have an opportunity to explain it to you.
THE COURT: Okay, explain it?
A It was a situation, name association with a case that hit the papers, if you live in the area for a long enough period of time the name, oh yes, I remember that, but you’ll not remember anything about it and that’s basically what I was trying to say there, yes, I heard of it but nothing about it.
THE COURT: Of Richard Biegenwald in connection with murder?
A Of Richard Biegenwald but not with relation to any specific crime.
Q Generic crime of murder?
A What was the question, I’m sorry.
Q The question is, before coming here today had you ever heard of a murder case involving Richard Biegenwald from any source whatsoever, either today or at any time previously, Richard Biegenwald of a murder case involving Richard Biegenwald and you checked yes?
A Yes, I was under the impression the question was Mr. Biegenwald with reference to whatever the situation happened to be and you people more or less have identified what the crime had been.
Q Oh, because I said this is a murder case and you had heard Biegenwald and that’s the association that made you check yes?
A Yes, sir.
THE COURT: All right. Thank you, same spot.
A Okay.
The voir dire of Mr. M., which the majority holds out as illustrative of some inadequacy, actually demonstrates the persistence and open-mindedness of this trial court. The court initially asked an open-ended question about the death penalty, five questions concerning previous knowledge of defendant, two questions related to the potential impact of the victim’s status, and a question about the use and appraisal of psychiatric testimony. The trial court also responded positively to counsel’s request for further inquiry and asked at least six more questions regarding Mr. M.’s prior knowledge of Biegenwald or his crimes. The voir dire of Mr. M. exemplifies how this trial court, unlike the court in Williams, repeatedly asked the “follow-up questions requested by counsel in order to explain” previous answers. 113 N.J. at 420, 550 A.2d 1172.
Finally, the trial court’s failure to pry into the terse responses of venireperson Ms. B. does not change my opinion that the general character of that voir dire was constitutionally-adequate. A host of reasons, not apparent from the written record, may have contributed to the court’s acceptance of them without further inquiry. Defense counsel also declined to ask any further questions of this venireperson, apparently believing he had received enough information about her from her responses and demeanor during questioning. Such conduct by counsel strengthens my impression of the adequacy of this voir dire. See State v. Zola, supra, 112 N.J. at 396-97, 548 A.2d 1022.
This voir dire met every standard we have previously formulated and fulfilled the historic purpose of voir dire. Courts have long stated that voir dire is not a process of selection but one of rejection. See Hayes v. Missouri, 120 U.S. 68, 71, 7 S.Ct. 350, 351, 30 L.Ed. 578, 580 (1886); State v. Moore, supra, 122 N.J. at 454, 585 A.2d 864; State v. Manley, 54 N.J. 259, 280-81, 255 A.2d 193 (1969). In State v. Manley, we defined the purpose and scope of voir dire, noting that
counsel [had begun] to subvert the function which was to assist in the impaneling of an impartial jury by using it to educate the jury panel on the facts of a particular case, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, to induce the jurors by use of the hypothetical questions or otherwise to commit themselves to vote in a particular way, or to instruct them in matters of law. [54 N.J. at 276, 255 A.2d 193.]
We went on to observe that “the impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party's point of view as indoctrination through the medium of questions or assumed facts and rules of law can accomplish.” Id. at 281, 255 A.2d 193. To remedy the situation this Court adopted Rule l:8-3(a),
the basic intent of which was to have the voir dire conducted exclusively by or through the trial judges to the extent reasonably possible. * * * Of course supplementary questioning by counsel personally is not foreclosed entirely, but control over its scope and content is left to the experienced judgment and discretion of the trial judge to be exercised with the history and purpose of the rule in mind. [Id. at 282, 255 A.2d 193].
The court’s exercise of discretion in dealing with such requests is subject to reversal only on a showing of prejudice resulting from an abuse of that discretion. See State v. Biegenwald, supra, 106 N.J. at 27, 524 A.2d 130. The majority’s view that “shopping,” with its connotation of selection and post-comparison purchase, is a “permissible or appropriate,” indeed “necessary,” metaphor for the voir dire process, see ante at 32-33, 594 A.2d at 188, ignores the abuses, concerns, and solutions that have shaped the evolution of voir dire. Courts, along with counsel, are not consumers in the voir dire market, picking and choosing jurors who meet their personal tastes; they are only inspectors in that market, examining and testing venirepersons to ensure the creation of an impartial jury from those that remain.
The entire voir dire was more than sufficient to fulfill that goal. There was nothing “perfunctory” about the death-qualification process. See State v. Williams, supra, 113 N.J. at 408, 550 A.2d 1172. Moreover, for reasons stated more fully below, I believe that the trial court’s failure (1) to define the crime of murder or (2) to ask venirepersons about the possible effect that evidence of Biegenwald’s prior murder convictions would have on their decision-making process did not render this voir dire constitutionally deficient.
II
The Trial Court’s Failure to Define Murder During Voir Dire
For the first time on appeal defendant raised the issue that failure to define the crime of murder denied defendant a fair and impartial jury. The trial court did not define murder for prospective jurors because it was unnecessary. This jury did not have to determine whether Biegenwald had committed murder; that had already been determined. This jury’s sole function was to determine the appropriate penalty. Failure to provide a legal definition on a tangential issue during voir dire is not “clearly capable of producing an unjust result.” State v. Hunt, supra, 115 N.J. at 363, 558 A.2d 1259 (citing R. 1:7-2 and R. 2:10-2).
Defendant’s reliance on State v. Williams, supra, 113 N.J. at 412 n. 5, 550 A.2d 1172, is misplaced for three reasons.
First, Williams was a case in which the same jury would be called on to decide the guilt/non-guilt issue and the life-imprisonment/death-penalty issue. Of course, “knowledge about what constitutes capital murder,” ibid., would have a place in such a pre-guilt setting. This jury never had a pre-guilt stage.
Second, this trial court in fact met the Williams command. “It would be helpful if the trial court provided the jurors with an outline of the State’s death penalty statute.” Ibid. The trial court gave, in its words, “a basic outline to them.” It said that it was usually “done in a two-stage procedure.” The court then continued:
This case is a murder case, but your task is somewhat unusual. It’s a different kind of task that you’ll be asked to perform.
ft#***#*#
The first stage before the jury is to determine whether or not the person who is accused of the crime is guilty of the crime of murder, the jury sits and decides whether the man is or woman is guilty or not guilty of murder. That’s the first stage [in the typical case].
Then the legislature has said after that’s finished, then there is a second proceeding, a second trial and the purpose of the second trial is to determine what the penalty is that should be imposed, the jury in New Jersey is the one that decides the penalty. And the options that the legislature has enacted in the law are two: The penalty, if somebody is convicted of murder the penalty is either death or the life imprisonment with no parole for at least 30 years. Those are the options.
Ultimately when a case is tried, it’s tried to the same jury for the first part and for the second part. So the jury that heard all the evidence on whether or not the person is guilty of the crime, if it decides the person is guilty, then that same jury sits and the case continues with the presentation of additional proofs which bear upon the jury’s decision in the second part of the case, whether the man is to be penalized by death or penalized by life imprisonment with no parole for at least 30 years.
Of course if the jury in the first part of the case decides the person is not guilty, that’s the end of it.
The proofs that are proffered in the second part of the case are proofs which bear upon what are called aggravating and mitigating factors. Common sense tells you the aggravating factors are those proofs which would cause you to kind of lean towards the death penalty. Mitigating factors are those factors which would cause you to lean towards life imprisonment with no parole for at least 30 years. Those are the proofs that are presented in the second part of the case.
And after those proofs are presented, then the jury deliberates as to what the penalty should be and it weighs and carefully considers those aggravating and mitigating factors under principles of law which the trial Judge explains to the jurors.
Now, the legislation, while it provides that usually the same jury takes care of both parts of the case also allows in specific cases for a different jury to be impaneled for the second part than that jury which heard the first part. And that’s exactly what’s happening here.
Richard Biegenwald has been convicted of murder, no question about that, he’s guilty of murder. The question the jurors in this case will be deciding is what is the appropriate penalty of the two options which the legislature has provided. The jury we’re going to select then will have to decide whether from all of the proofs that are [proffered] on these aggravating and mitigating factors and after weighing them in accordance with the law, will have to decide whether death is the appropriate penalty or rather whether the other appropriate penalty is life imprisonment with no possibility of parole for at least 30 years. This jury then we’re going to pick is not going to be concerned at all with deciding whether the man was, should have been, or is not guilty. He is guilty. No question about that. And you don’t have any concern over that. The jury that’s going to decide this case will decide punishment or penalty.
Now, our purpose is to select from among you, jurors who will be able to fulfill that responsibility in a fair and impartial way. We will attempt to ascertain from each of you whether you think that you can do so by way of an inquiry which will involve, one, your preparation of answers to a written questionnaire that we’ll distribute, that written questionnaire will ask questions about your background, things of that nature, and then we will, after you fill out the questionnaires, you’ll come in individually and we will look at the answers to the questions and we’ll ask you certain questions which will enable us, that means the Court and the lawyers involved, to get an idea of your background and your thinking, so that we can evaluate whether you ought to be able to be a fair and impartial juror on this case.
Because trial counsel asked for no more-elaborate definition of the issues before the jury, we appraise this issue under the plain-error standard. An “outline” of this detail convinces me that the court’s failure to adorn it further did not contribute to an unjust result. See State v. Hunt, supra, 115 N.J. at 350, 558 A.2d 1259. These jurors certainly had “some basic comprehension about what their legal duties as jurors would be.” State v. Moore, supra, 122 N.J. at 446, 585 A.2d 864.
Finally, it is not at all clear that Williams itself would have held such a failure to be reversible error. Williams stated that “it would be helpful” for the trial court to provide such a definition. Ibid. Williams did not state or imply that failure to do so gave rise to a presumption or even an inference that jurors were confused or misinformed.
I am not convinced that either the facts of this case or the holding of Williams made defining murder during voir dire an absolute imperative. I am also not convinced that even if they did, this Court’s instructions did not meet that standard. I am convinced, however, that the failure to define murder was not plain error.
Ill
The Trial Court’s Refusal to Ask Jurors on Voir Dire How They Would React to Evidence of Aggravating Factor N.J.S.A. 2C:11-3c(4)(a)
The trial court refused to ask prospective jurors whether they could consider evidence in mitigation once they heard evidence that Biegenwald had been convicted of murdering another person in addition to Anna Olesewicz. I believe that the trial court had the discretion to refuse to ask that question. I also believe that even if the court should have allowed the question, any resulting error was harmless. Hence, I must disagree with the majority.
A
“Jurors must not be asked categorically to prejudge their willingness to impose the death penalty in the case.” State v. Ramseur, supra, 106 N.J. at 257, 524 A.2d 188. Here, the proffered question comes dangerously close to doing exactly that. Obviously defense counsel would have liked to know the answer to that question; undoubtedly he could have more intelligently made peremptory excusáis if he could have forced a response to that question. Those two observations themselves do not create a constitutional command. Mu’Min v. Virginia, supra, — U.S. at -, 111 S.Ct. at 1904, 114 L.Ed.2d at 504. Moreover, the prospect of uniformly requiring such a question troubles me.
The Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. * * * Thus, the State’s obligation to the defendant to impanel an impartial jury generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant. [Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258, 263 (1976)].
As the United States Supreme Court has stated: “a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him.” Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776, 785 n. 21 (1968). Whether to allow this inquiry on voir dire is, and should remain, within the sound discretion of the trial court. State v. Hunt, supra, 115 N.J. at 357, 558 A.2d 1259.
I remind the majority that “[t]he distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear.” Waters v. State, 248 Ga. 355, 363, 283 S.E.2d 238, 247 (1981). That is precisely why we accord a “sound measure of discretion” to trial judges in the conduct of voir dire. State v. Hunt, supra, 115 N.J. at 357, 558 A.2d 1259. The written record may not only “ ‘conceal[ ] subtle nuances,’ ” State v. Ramseur, supra, 106 N.J. at 260, 524 A.2d 188 (quoting State v. Gilmore, supra, 103 N.J. at 547, 511 A.2d 1150 (Clifford, J., dissenting)), but it may also permit overly-precise dictionary distinctions not appreciable in the discourse of the trial. This trial judge, after lengthy consideration of draft questions proposed by defense counsel, the prosecutor, and himself, rejected inquiries on this subject because it asked “the ultimate question” in the case. His reasons, detailed and thorough, showed no abuse of discretion. They covered roughly twenty-six pages of transcript and all the relevant statements of this Court and clearly indicated careful consideration. Moreover, they accord with the decisions of other jurisdictions that have decided the issue. I find no abuse of discretion and would accord this trial court’s well-reasoned, competent, and conscientious decision the deference it deserves.
Other states have voiced similar concerns and reached similar conclusions when faced with this issue. In Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), the Georgia Supreme Court considered the propriety of the following question in a capitalresentencing hearing:
Assume there’s a murder, two murders with aggravating circumstances proved to your satisfaction, would you be * * * willing or able to consider a sentence less than death under those circumstances and follow the law that allows it. [Id. at 667, 308 S.E.2d at 819.]
It held that “the defendant cannot create error by eliciting' responses to questions that solicit the juror’s views on evidence not yet presented.” Ibid. In this Georgia case even the dissent believed that mentioning “two murders” in the voir dire question was “possibly objectionable,” noting that “questions incorporating facts yet to be proved are often quite improper.” Id., 308 S.E.2d at 822 (Gregory, J., dissenting). The Georgia Supreme Court has rejected similar questions in other cases. In Castell v. State, 250 Ga. 776, 783, 301 S.E.2d 234, 243 (1983), the court rejected certain voir dire questions in a capital case because they “might require [jurors] to prejudge the case.” Similarly, in State v. Waters, supra, 248 Ga. at 363, 283 S.E.2d at 247, another capital case, the court held that “no question should require a response from a juror which might amount to prejudgment of the case.” In all three cases the Georgia court carefully expressed its decision in terms (e.g., “might require”) that indicate its resolve to stay far clear of such areas on voir dire. Perhaps more importantly, the appellate court deferred to the sound discretion of the trial court in all three cases. See Godfrey v. Francis, supra, 251 Ga. at 667, 308 S.E.2d at 819; Castell v. State, supra, 250 Ga. at 783, 301 S.E.2d at 243; State v. Waters, supra, 248 Ga. at 363, 283 S.E.2d at 247.
The main thrust behind such resolve springs from a desire to avoid trying the case during voir dire. The jury should decide the ultimate issues of fact based on the evidence they all hear at trial, not the questions any one of them is asked on voir dire. “The parties are furnished the opportunity to make proper inquiry, but they are foreclosed from trying their cases at the time of voir dire.” State v. Jahnke, 682 P.2d 991, 1003-1004 (Wyo.1984). Even where the question itself does not seek an immutable commitment from the juror, it can result in a similar dynamic. “The question was improper because it went to the ultimate issue of fact. * * * The question required the jury to speculate on evidence to be presented at trial. Furthermore, the question was designed to probe a juror’s present impression of facts which were to be later developed at trial.” Reynolds v. Commonwealth, 6 Va.App. 157, 367 S.E.2d 176, 183 (1986); see also State v. Montez, 309 Or. 564, 584, 789 P.2d 1352, 1366 (1990) (a question may be improper even if it only “asks the juror to comment in advance on how he would react to specific evidence”). I find these cases, along with those of Georgia, soundly reasoned, employing an analysis comparable to that used by the trial court here.
Today’s majority believes that the question considered by the trial court merely sought to “inquire about the impact that knowledge of other murder convictions would have on the ability of prospective jurors to credit or consider evidence in mitigation.” Ante at 34, 594 A.2d at 189. It views that question as reflecting a straight-edge distinction between responses that commit prospective jurors to accept a certain result and those that commit prospective jurors to consider a certain result. Ante at 34, 594 A.2d at 189. Although in the proper case I agree that “an adequate voir dire should incorporate the suggestions of Williams II and Moore,” ibid., I do not believe the “suggestions” in those cases are applicable here. The accept/consider distinction often evaporates as a constraint on voir dire because it transforms the process into “the selection of a jury as favorable to the party’s point of view as indoctrination through the medium of questions or assumed facts and rules of law can accomplish.” State v. Manley, supra, 54 N.J. at 281, 255 A.2d 193 (emphasis added). We have never sanctioned that as a legitimate aim of voir dire. Voir dire should produce neither a final verdict nor an arbiter’s nonbinding resolution.
Moreover, the majority also believes that it can merely interchange “another murder” for “rape” for the purpose of analysis under State v. Williams, supra, 113 N.J. 393, 550 A.2d 1172. Ante at 31, 594 A.2d at 187. It cannot. Although each establishes a statutory aggravating factor, the prior-murder factor is unique among the statutory aggravating factors. State v. Biegenwald, 110 N.J. 521, 538, 542 A.2d 442 (1988). The distinction between these two aggravating factors is more than semantic.
In State v. Williams, supra, 113 N.J. at 412-13 n. 5, 550 A.2d 1172, we approved of voir dire questions with “hypothetical examples to probe how various factors might affect a person’s decision-making process” in the context of examining the effect of a victim’s status or other non-statutory factors. We sought to ensure only that a jury remain focused on the defendant before it.
As this Court has stated,
the consideration of the individual characteristics of the offender and his crime is “a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976); see also Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978) (“an individualized decision is essential in capital cases”). In sentencing, the jury must have before it all the possible relevant information “regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant’s character, background, history, mental condition, and physical condition.” California v. Ramos, 463 U.S. 992, 1006, 103 S.Ct. 3446 [3456] 77 L.Ed.2d 1171, 1184 (1983); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929, 941 (1976).
In sentencing a defendant in a capital murder case, it is extremely important that the jury, in determining whether a defendant should receive the death penalty or life imprisonment, know that the defendant has previously been convicted of one or more murders. [State v. Biegenwald, supra, 110 N.J. at 538-39, 542 A.2d 442.]
Precisely because the determination of whether to inflict capital punishment on a given defendant is an “individualized decision,” Lockett, supra, 438 U.S. at 605, 98 S.Ct. at 2965, 57 L.Ed.2d at 990, based on the “character of the individual and the circumstances of the crime,” Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235, 251 (1983), we stated that
in accordance with our decisions in Williams II, Long, and Zola, voir dire should allow more open-ended questioning on the issue of the status of the victims as it relates to any prejudice or predisposition affecting the juror’s ability to consider mitigating evidence in any penalty phase. [State v. Moore, supra, 122 N.J. at 451, 585 A.2d 864 (emphasis added).]
By going beyond that rationale in this case, the majority fundamentally recasts this Court’s understanding of the goal of voir dire under the guise of applying established law.
Sympathy engendered by the victim’s status must not infect the careful balancing of evidence “ ‘regarding the individual characteristics of the defendant and his offense.’ ” State v. Biegenwald, supra, 110 N.J. at 539, 542 A.2d 442 (quoting California v. Ramos, supra, 463 U.S. at 1006, 103 S.Ct. at 3456, 77 L.Ed.2d at 1189). Despite the United States Supreme Court’s recent decision in Payne v. Tennessee, — U.S. -, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1990), the propriety of introducing victim-impact evidence during any part of a capital case in New Jersey remains subject to the capital-sentencing jurisprudence of this state. Payne merely held that introducing victim-impact evidence is not a per se violation of the eighth amendment, and that state law may, but need not, allow the use of such evidence so long as such use conforms to the due process requirements of the federal constitution in any given case. Id. at -, 111 S.Ct. at 2608, 115 L.Ed.2d at 735. However, “the primary responsibility for defining crimes against state law [and] fixing punishments for the commission of these crimes * * * rests with States.” Ibid. New Jersey has chosen, as it may under our constitutional system, id. at -, 111 S.Ct. at 2609, 115 L.Ed.2d at 736, not to allow the introduction of victim-impact evidence unrelated to “the substantive issue of guilt or the penalty to be imposed.” State v. Williams, supra, 113 N.J. at 452, 550 A.2d 1172; see also State v. Clausell, 121 N.J. 298, 341, 580 A.2d 221 (1990) (citing Williams); State v. Pennington, 119 N.J. 547, 566-67, 575 A.2d 816 (1990) (same).
Voir dire affords an important opportunity to inquire about potential victim-related biases. The questions suggested in Moore and Williams II involved cases in which a murder victim was raped or was a child or was the pregnant spouse of the defendant. A rape/murder is often, though not exclusively, a gynocide causing excessive, and deserved, sympathy for the victim. Likewise, infanticide, foeticide, and uxoricide have the potential to divert jurors from their duty to assess the defendant to their desire to avenge the victim. Voir dire questions, like this trial court’s repeated inquiries regarding a venireperson’s ability to decide after hearing evidence regarding the murder of a young woman, properly explore the effect of a victim’s status on the prospective juror’s decision-making process.
Although the presence of evidence relating to N.J.S.A. 2C:11-3c(4)(c) (murder involved torture or aggravated assault resulting in pain in addition to that necessary to cause death), c(4)(g) (murder involved other crimes, like rape, committed against this victim and/or other victims), or c(4)(h) (murder involved killing a public servant) may raise heightened concerns that demand further voir dire to establish that the victim’s status will not prejudice the jury, the other aggravating factors simply do not raise those concerns. In State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991), we did not insist that voir dire examine the impact of evidence on N.J.S.A. 2C:11-3c(4)(e) (murder involved paying another to kill). We have never suggested in any of our previous decisions in this case, see State v. Biegenwald, supra, 106 N.J. 13, 524 A.2d 130, and State v. Biegenwald, supra, 110 N.J. 521, 542 A.2d 442, that adequate voir dire must include questions on the impact of N.J.S.A. 2C:11-3c(4)(a) evidence. The difference between Marshall and the Biegenwald cases and those cases like Moore and Williams II is that the latter two contained evidence of aggravating factors that could easily be transformed from lenses through which the jury should examine the defendant into mirrors in which it saw the victim. When the reflection in such a mirror is not related directly to the circumstances of the crime, it has no place at trial and may be weeded out at voir dire. However, evidence of the c(4)(a) factor is non-reflective and could not implicate a victim’s status in the way in which the facts and factors in Moore and Williams II could.
I have one further reason for disagreeing with the majority’s insistence that this type of question is a required part of an adequate voir dire. This “question,” if mandated in all future voir dire, promises to unravel much of the capital sentencing jurisprudence we have painstakingly developed. We have had to recast the New Jersey Capital Punishment Act numerous times to insure its constitutionally-satisfactory tone. See State v. Marshall, supra, 123 N.J. at 208, 586 A.2d 85 (O’Hern, J., concurring in part and dissenting in part). That has rightly resulted from the application of
our interpretative decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987); State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987); State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988) (Bey II); and State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). We have had to reverse capital cases often for reasons with which the Legislature itself has concurred. See, e.g., State v. Biegenwald, supra, 106 N.J. 13, 524 A.2d 130 (burden is on State to prove beyond a reasonable doubt that aggravating factors outweigh mitigating factors before sentence of death may be imposed); and see L. 1985, c. 178, § 2 (to the same effect); State v. Bey, 112 N.J. 45, 548 A.2d 846 (1988) (Bey I) (sentence of death may not be imposed on juvenile offender); and see L.1985, c. 478, § 1 (to the same effect). [Ibidi]
However, the death penalty cannot continue to serve its purpose, “consistent with our history and tradition,” id. at 209, 586 A.2d 85 (O’Hern, J., concurring in part and dissenting in part), unless it operates actually, consistently, and fairly.
Today the majority undertakes an unnecessary recasting of the capital-punishment jurisprudence of this state. With but one exception, this Court professes “to believe that conscientious prosecutors and capable courts and counsel can fairly try capital cases.” Id. at 208, 586 A.2d 85 (O’Hern, J., concurring in part and dissenting in part). This case was fairly tried, in keeping with our major interpretative statements as well as with the limited holdings of State v. Moore, supra, 122 N.J. 420, 585 A.2d 864, and State v. Williams, supra, 113 N.J. 393, 550 A.2d 1172. In insisting that it was not, the majority reaches well beyond established law in defining the requirements of what it understands as “fairness.” That in itself is unfair and could lead to the perception of an inconsistent application of capital punishment because
[t]hese decisions do not justify today’s decision. They merely prove how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision. [United States v. Rabinowitz, 339 U.S. 56, 75, 70 S.Ct. 430, 439, 94 L.Ed. 653, 665 (1950) (Frankfurter, J., dissenting).]
The majority’s reliance on Moore and Williams II is a “progressive distortion,” ibid., that “giv[es] fair ground for the belief that Law is the expression of chance.” Id., 339 U.S. at 86, 70 S.Ct. at 444, 94 L.Ed. at 670. “Respect for continuity in law, where reasons for change are wanting,” and where the change will produce uncontemplated results and confusion, demand that the court not extend the law as it has today. Ibid.
This case, in many ways, is an easy one in which to introduce this type of voir dire question because it consisted only of a penalty phase. The intimation of a prior murder conviction during voir dire could not adversely influence the guilt/non-guilt determination. However, in the normal case, voir dire occurs before the determination of guilt. Unlike a case with an accompanying rape (in which the guilt-phase evidence will establish that the rape occurred or did not occur regardless of the questions asked during voir dire), evidence of a prior murder conviction is unlikely to emerge in the evidence presented during the guilt phase. By hinting at it during voir dire, the inquiry invites wild speculation during the initial segment of the trial. The majority understands that this type of question, logically extended to its reasonable conclusion, most probably will mandate a two-jury system for all capital trials involving the c(4)(a) aggravating factor to ensure that juries’ verdicts were not based on or influenced by such non-evidence. Ante at 44, 594 A.2d at 194. However, the majority cannot simply pull that thread from our capital-sentencing jurisprudence. The momentum created by this decision pushes us inevitably toward a two-jury system in all capital cases, whatever the aggravating factors alleged. What we have rejected explicitly, see State v. Ramseur, supra, 106 N.J. at 253-54, 524 A.2d 188, we should not now adopt implicitly. My fear that the majority’s position will cause the “unravel[ing] of much of the capital-sentencing jurisprudence we have painstakingly developed,” supra at 94, 594 A.2d at 223, gains strong support from the majority’s problematic return to issues decided in our original examination of the death penalty. See id.
The death-qualification process is a difficult one. Could an honest venireperson not answer “yes” when asked if evidence of a prior murder made it more likely that he or she would vote for death or that it would be very hard to find that mitigating evidence outweighed that aggravating factor? Yet, it would be difficult to say fairly that this juror was not “as nearly impartial ‘as the lot of humanity will admit,’ ” State v. Singletary, supra, 80 N.J. at 62, 402 A.2d 203 (quoting State v. Jackson, supra, 43 N.J. at 158, 203 A.2d 1), in a society where there is “substantial unanimity * * * as to the validity of the [prior murder conviction aggravating] factor. Perhaps the majority of decisionmakers in the system, including penalty-phase jurors, believe that this factor, if it exists, ought to be the factual basis for the imposition of a death sentence.” L. Bienen, N. Weiner, D. Denno, P. Allison, and D. Mills, The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion, 41 Rutgers L.Rev. 27, 247 (1988).
Certainly, the Legislature believed evidence of a prior murder conviction ought to provide the factual basis for the imposition of the death penalty: it made such a finding a statutory aggravating factor militating in favor of a death sentence. Aggravating factors are meant to sway jurors. The death-penalty statute spells out specific aggravating circumstances that one may legitimately rely on when considering the death penalty in a given case. When, without any previous acquaintance with the actual contents of the Capital Punishment Act, a prospective juror believes that evidence of a prior murder conviction would influence, perhaps strongly influence, his or her decision to impose the death penalty, that citizen merely adds unstated support to a society-wide consensus enacted into law by our Legislature. One may agree naturally and unwittingly with most of society, our Legislature, and our courts that a prior murder conviction provides a legitimate basis to support consideration of the death penalty in a given case. Such a shared sentiment, discovered by the court during voir dire or realized by a juror during the later trial, does not deprive a defendant of an impartial jury.
I would defer to the trial court’s field-tested wisdom.
B
“Voir dire is not an end in itself but merely an effective means to select an impartial jury.” State v. Long, 119 N.J. 439, 479, 575 A.2d 435 (1990). I am convinced of the overall thoroughness of this voir dire. I am also convinced that the trial court’s instructions and the jury’s conduct vitiate any fear that this jury was biased or refused to consider evidence on mitigation. Therefore, I believe that this jury was impartial, or at least “as nearly impartial ‘as the lot of humanity will admit.’ ” State v. Singletary, supra, 80 N.J. at 62, 402 A.2d 203 (citation omitted). Any error resulting from failure to ask the proffered questions was harmless.
Like other cases with technical demerits directed at a voir dire where further questioning could have been helpful, see Mu’Min v. Virginia, supra, — U.S. at-, 111 S.Ct. at 1904, 114 L.Ed.2d at 504, the record here nonetheless assures me that “the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury.” State v. Biegenwald, supra, 106 N.J. at 29, 524 A.2d 130; see also State v. Dixon, supra, 125 N.J. at 247, 593 A.2d at 278 (“the questioning was sufficiently calculated to produce a fair and unbiased jury”); State v. Hunt, supra, 115 N.J. at 354, 558 A.2d 1259 (“although voir dire may not have been perfect in all respects * * *, it was sufficient to enable counsel and the court to evaluate the juror’s fitness to serve”); State v. Zola, supra, 112 N.J. at 397, 548 A.2d 1022 (citing State v. Biegenwald, supra, 106 N.J. at 29, 524 A.2d 130). The record also shows that the jury actually selected through this voir dire apparently proceeded in an impartial manner, even though they were not asked during voir dire how Biegenwald’s prior conviction would affect them.
Of course it may have been preferable for the trial court to have allowed the voir dire questioning requested by defense counsel with respect to the jurors’ attitudes about the “prior murder” factor. See post at 105-106, 594 A.2d at 229. (Stein, J., dissenting). We have repeatedly emphasized that Manley was never intended to freeze voir dire into a judicial straitjacket and that it is “appropriate for the court or for counsel to have asked additional open-ended questions directed to any specific feelings that the jurors might have had about capital punishment in that case.” State v. Moore, supra, 122 N.J. at 449-50, 585 A.2d 864 (emphasis added) (citing State v. Long, supra, 119 N.J. 439, 575 A.2d 435; Williams II, supra, 113 N.J. 393, 550 A.2d 1172; and State v. Zola, supra, 112 N.J. 384, 548 A.2d 1022).
However, it does not follow that the discretionary determination by this trial judge fell so far from the mark as to constitute a due process violation or an infringement on fair trial rights. See post at 104, 594 A.2d at 228 (Stein, J., dissenting) (“the Court’s holding attaches undue significance to the question the trial court refused to ask”). I am comforted in that conclusion in this case by the fact that on those few occasions when jurors were asked the question (because they had disclosed their knowledge of the prior murders) the jurors evidenced no unwillingness to consider the mitigating evidence, even in light of the prior murders. For example, prospective juror Mr. R. was asked:
Q But even with another murder in your words, would you still be willing to listen and open to the possibility that the mitigating factors might still outweigh even that?
A Oh, yes, I’d listen, yes.
Q So even with another murder, it’s possible, I think, from what you have said, you still could vote for life imprisonment with no parole for at least 30 years?
A Yes.
Q Depending upon what you hear?
A Yes.
And prospective juror Mr. M. was asked:
Q Is there anything about what you have read about killings, plural, that you believe might affect your judgment in this case where essentially this case is the fact that he has been found guilty of a killing. Now we're going to decide the penalty. Do you think all that background information is going to have an effect on you?
A No.
Q You mean you’ll just be able to listen to what you hear in the Court room?
A Yes.
Q And if it’s different from what you read in the newspaper you’ll forget all about what you read in the newspaper?
A Yes.
Throughout the voir dire, all of the jurors who were qualified agreed that they would consider the mitigating evidence proffered by the defendant in evaluating the statutory aggravating factors. This jury was not closed-minded.
The majority states that
[t]he refusal to permit questioning on the impact of other murder convictions during voir dire constitutes serious error. Such error, however, is not irremediable. Defendant’s sentence may be upheld if the voir dire was otherwise so thorough and probing as to ensure that the jurors empaneled had the “capacity to credit the evidence in mitigation,” State v. Bey, 112 N.J. 123, 154 [548 A.2d 887] (1988) (Bey II), and the ability to perform their duties in accordance with the court’s instructions and their oaths, see Adams v. Texas, supra, 448 U.S. at 45 [100 S.Ct. at 2526] 65 L.Ed.2d at 589. [Ante at 34-35, 594 A.2d at 189.]
In addition to the obvious strengths I found in my review of the overall voir dire, and to the comfort I find in the responses of jurors like Mr. R. and Mr. M., other evidence demonstrates that the Bey II and Adams demands were met and any error remedied.
Defendant concedes that some venirepersons, unlike Mr. R. and Mr. M., whose understanding of the applicability of the death penalty was flawed and who indicated they would not be able to follow the law were properly excused for cause. Cf. State v. Dixon, supra, 125 N.J. at 247, 593 A.2d at 278 (“Any of those who had preconceived notions of guilt were excused.”). Venireperson Piceaci, for example, was excused for his belief that the “only case” in which he would not vote for a death sentence was “negligence * * * something like a hit and run.” Prospective juror Tulibacki was excused for his belief that capital punishment was appropriate for all murders except those committed either in anger or accidentally. Venireperson Mr. L. was excused because he stated, “if it was cold-blooded murder, I feel that his life should be taken, too,” but “[i]f it was an accident, that’s something totally different.” Those three venirepersons’ answers about their death-penalty views were elicited through an initial, general, open-ended question by the trial court, followed by an invitation to the prospective juror to elaborate.
Of the questions defense counsel requested, most were asked by the court. There were approximately six or seven times when the court refused to ask questions requested by defendant. Those refusals followed two related types of requests. First, when a venireperson indicated that he or she would vote for the death penalty under “certain circumstances,” defendant requested an inquiry into what those circumstances were. Closely allied to that request, counsel occasionally sought inquiry into whether the knowledge that defendant had two prior murder convictions would substantially impair the juror’s ability impartially to decide defendant’s sentence. Unlike Williams II, in which the questioning was “woefully inadequate” and “marked by repeated defense objections” and in which defense counsel had exhausted all his peremptory challenges, 113 N.J. at 404-05, 550 A.2d 1172, here the questioning was adequate, there were few objections by defense counsel, and the defense used only thirteen of its peremptory challenges. Ante at 42, 594 A.2d at 194. The majority agrees that the voir dire with respect to pretrial publicity was adequate.
I also find that the voir dire was sufficiently probing to weed out any prospective jurors whose ability to determine defendant’s proper sentence was impaired. See State v. Hunt, supra, 115 N.J. at 351, 558 A.2d 1259; State v. Biegenwald, supra, 106 N.J. at 29, 524 A.2d 130. As in State v. Zola, supra, 112 N.J. at 396, 548 A.2d 1022, there were “some areas in which more inquiry would have undoubtedly been of assistance, as in the questioning of some jurors who expressed the view that capital punishment would be appropriate in some cases but not in others.” The Court indicated in Zola, however, that the critical information to be garnered through voir dire is that jurors “be able to follow the law and to weigh the factors prescribed by the capital punishment act.” Ibid. The voir dire in the present case appears to have accomplished that task.
The jurors understood that the trial would provide the appropriate considerations for sentencing, and venirepersons who expressed their inability to conform to the process were excused. That is the aim of a proper and adequate voir dire, no more, no less. Those jurors professed to be fair, and we cannot forget their conscientious efforts. People will “inevitably react to what [they] hear as [they] hear it.” State v. LeFera, 42 N.J. 97, 108, 199 A.2d 630 (1964). That fact of human nature should not lead us to assume that they were unequal to their oath to apply the law conscientiously and to find the facts. All those jurors said that they would “leave their prejudices on the courthouse steps and decide [the] case on the merits alone.” Id. at 110, 199 A.2d 630. The record indicates that they did so.
My confidence in the fairness of the outcome receives further support in the court’s instructions, instructions that we must assume the jury followed:
Under your oath you are obligated to accept [the law as I have explained it] and then use those principles in deciding the case.
********
If, in your deliberations, you should become confused as to the legal principles that I have defined and explained for you, simply frame a question in writing * * * and after reading it and discussing it with counsel, if necessary, we’ll call you back into the jury box and I’ll go over it again. We don’t want you to decide the case in a state of uncertainty as to what the law is. Any problem with that, let me know.
* * * It may well be that as you sit there now, each of you has a tentative conclusion in your mind as to how you are going to vote on the aggravating and mitigating factors, and how you intend to vote on the ultimate penalty that you will choose as appropriate to this case.
********
What would be wrong is if you were to blindly cling to that tentative conclusion despite persuasive arguments for considerations raised by your fellow jurors during the deliberative process.
The jurors were also told that
[i]n deliberating on whether one or more of the mitigating factors has been established, you will focus primarily on the testimony of Dr. Eshkenazi [Biegenwald’s psychiatrist].
Armed with those instructions, this jury did not behave like a group that had foreclosed consideration of evidence in mitigation. It asked for read-backs of Dr. Eshkenazi’s testimony, testimony going directly to the issue of mitigating factors. It did find two aggravating factors present. However, a number of the jurors concluded that two mitigating factors, N.J.S.A. 2C:11-3c(5)(d) (impairment by mental disease or defect) and c(5)(h) (the “catchall” factor), also existed. Only after deliberating in this manner did this jury find unanimously and beyond a reasonable doubt that the aggravating factors outweighed the mitigating ones.
The jurors who were chosen all agreed that they believed the death penalty was appropriate in some instances and not in others, that they could consider and weigh the aggravating and mitigating factors presented at trial and determine the sentence, that they could impose either life or death, that they could listen to and consider psychiatric testimony, and that they could follow the trial court’s instruction on the law. See State v. Dixon, supra, 125 N.J. at 247-248, 593 A.2d at 278. In sum, they were a jury that could “ ‘conscientiously apply the law and find the facts.’ ” State v. Koedatich, supra, 112 N.J. at 293, 548 A.2d 939 (quoting Wainwright v. Witt, supra, 469 U.S. at 423, 105 S.Ct. at 851, 83 L.Ed.2d at 851). The overall thoroughness of the voir dire remedied the error, if any, occasioned by failure to expand voir dire to include a specific inquiry into the effect defendant’s prior murder convictions would have on a venireperson’s ability to credit and consider evidence in mitigation.
IY
Other Issues
I, like the majority, believe the New Jersey Capital Punishment Act is constitutional. See State v. Ramseur, supra, 106 N.J. at 185-90, 524 A.2d 188. I also believe that the majority correctly rejects defendant’s claims under State v. Gerald, 113 N.J. 40, 69, 549 A.2d 792 (1988). As in numerous other cases, this record and the record at the guilt/non-guilt phase provide no rational basis on which a jury could conclude that defendant shot this young woman with an intent to cause serious bodily injury rather than death. See, e.g., State v. McDougald, 120 N.J. 523, 577 A.2d 419 (1990); State v. Rose, 120 N.J. 61, 576 A.2d 235 (1990); State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989); State v. Hunt, supra, 115 N.J. 330, 558 A.2d 1259.
I also agree with the majority that there was no abuse of discretion in failing to relieve defense counsel or in failing to change venue sua sponte. I only wish that the majority would have similarly deferred to the trial court’s exercise of discretion during jury-selection. Ante at 23, 594 A.2d at 183 (noting that “the nature of jury selection inherently requires evaluation of the demeanor of venirepersons, an assessment narrowly circumscribed on appellate review of an unanimated transcript”).
Finally, I do not believe that any of the issues not reached by the majority have merit.
V
Conclusion
Both the jury that initially decides a capital case and the appellate court that inevitably reviews that decision understand the gravity of a decision to impose the death penalty. Appropriately selected and properly educated on the law and the facts of the case, neither views its duty with anything but solemnity, because the decision to impose or to uphold society’s ultimate sanction is not undertaken lightly. The record demonstrates that this jury was properly selected for, and educated to, its task. That being the case, and no other ground for reversal being present, my duty is clear. I would affirm the sentence.
O’HERN, J., concurs in this opinion.
[OPINION BY STEIN, J., type=dissent]
STEIN, J.,
dissenting.
That the Court is presented with the critical issue that arose from the jury voir dire is regrettable indeed. During that voir dire defense counsel requested the trial court to ask jurors otherwise qualified to sit whether knowledge of defendant’s prior murder convictions would impair substantially the ability of those jurors to consider and weigh.mitigating factors. The State directed the trial court’s attention to our opinion in State v. Williams, 113 N.J. 393, 550 A.2d 1172 (1988) (Williams II), in which we held that it was error for the trial court not to have inquired of jurors during that voir dire whether they automatically would vote to impose the death penalty if the defendant had committed rape and murder, as the indictment alleged. Id. at 417, 550 A.2d 1172. As noted by the majority opinion, the State also submitted a proposed question for the trial court’s use, acknowledging the need for inquiry about defendant’s prior murder convictions. Ante at 34, 594 A.2d at 189. The trial court declined to follow the Court’s analysis in Williams II, independently reasoning that the proposed question about defendant’s prior murder convictions improperly intruded on the jury’s ultimate responsibility to weigh aggravating and mitigating factors.
The Court now holds that the trial court’s failure to submit that inquiry to prospective jurors was not only error but reversible error, because the prejudicial effect of the court’s failure to inquire was not overcome by the balance of the voir dire. The Court acknowledges that notwithstanding the trial court’s failure to question jurors about defendant’s prior murder convictions, the sentence is sustainable if the voir dire was otherwise sufficiently probing to ensure that the jury possessed the “capacity to credit the evidence in mitigation,” ante at 34, 594 A.2d at 189 (quoting State v. Bey, 112 N.J. 123, 154, 548 A.2d 887 (1988)), and the ability to follow the court’s instructions. Concluding that the balance of the voir dire was not sufficiently open-ended and thorough to compensate for the trial court’s refusal to interrogate jurors about defendant’s prior murder convictions, the Court reverses defendant’s sentence. I read the Court’s opinion to hold that the voir diré would not have required reversal but for the trial court’s failure to have questioned jurors about defendant’s prior murder convictions. Although I share with the majority the view that the voir dire should have accommodated the joint request by defense counsel and the State to inquire about defendant’s prior murder convictions, I consider the majority’s conclusion that the voir dire was “constitutionally flawed” to overstate substantially the significance of the trial court’s omission.
To afford a context within which to explain my disagreement with the majority, I note that except for Williams II, supra, 113 N.J. 393, 550 A.2d 1172, the majority opinion relies on no other federal or state court decision to support its holding that the failure to inquire about defendant’s prior murder convictions can constitute reversible error if that omission is not redeemed by the balance of the voir dire. Nor does it cite any authority for the proposition that the failure .to inquire about jurors’ attitudes toward any comparable aggravating factor could constitute reversible error. My research has uncovered no such authority. I therefore conclude that the majority’s holding, applying the right to a fair and impartial jury guaranteed under both the federal and the state constitutions, U.S. Const. amends. VI and XIV; N.J. Const. art. I, ¶ 10, is one of first impression.
The Court’s holding is also unique when viewed in the context of the developed jurisprudence on capital-murder juror disqualification, which has invariably focused on the disqualification of jurors scrupled against the death-penalty, so-called Witherspoon excludables. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon, the Court held that jurors inclined against imposition of the death penalty could be excluded for cause only if they
made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision, as to the defendant’s guilt. [391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21, 20 L.Ed.2d at 785 n. 21).]
The Witherspoon standard was modified in Adams v. Texas, supra, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581, and Wainwright v. Witt, supra, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, both cases involving exclusion of jurors disinclined to impose the death penalty. In Adams the Court held that such a juror was excludable for cause only if “his views about capital punishment * * * would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” 448 U.S. at 45,100 S.Ct. at 2526, 65 L.Ed.2d at 589. In State v. Ramseur, 106 N.J. 123, 256, 524 A.2d 188 (1987), we held that trial courts should apply the Adams-Witt standard in death-qualifying a jury, and in State v. Bey, supra, 112 N.J. at 152, 548 A.2d 887, we acknowledged that that standard applied to jurors who invariably favor the death penalty as well as to those who oppose it.
Nevertheless, there is a distinct lack of precedent in state and federal decisions relating to disqualification of jurors who favor capital punishment for any defendant convicted of murder. Presumably, the issue is not often preserved for appeal because the automatic death-penalty juror is challenged either for cause or peremptorily. When the issue is presented on appeal, courts generally acknowledge that under the Adams-Witt standard a juror who would vote to impose the death sentence automatically on a defendant convicted of murder should be excused for cause. See, e.g., Ross v. Oklahoma, 487 U.S. 81, 84-85, 108 S.Ct. 2273, 2276-77, 101 L.Ed.2d 80, 87-88 (1988); accord Hance v. Zant, 696 F.2d 940, 956 (11th Cir.1983); Hovey v. Superior Court, 28 Cal.3d 1, 20 n. 48, 616 P.2d 1301, 1310 n. 48, 168 Cal.Rptr. 128, 137 n. 48 (1980).
However, the Court writes on a clean slate when it applies the Adams-Witt standard to require that jurors who would not vote automatically to impose the death sentence on all convicted murderers must necessarily be interrogated on whether they would so vote if the defendant had prior murder convictions. The Court apparently assumes that a juror unable to verify his or her willingness to weigh mitigating factors against the prior-murder-conviction aggravating factor is necessarily excludable for cause. That assumption ignores a caution expressed in Wainwright v. Witt, supra, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841, although stated in a different context:
[Determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. [469 U.S. at 424-25, 105 S.Ct. at 852-53, 83 L.Ed.2d at 852.]
The Court’s holding also ignores the most recent United States Supreme Court decision on jury voir dire, Mu’Min v. Virginia, — U.S.-, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), in which the Court determined that the Constitution did not mandate that jurors in a murder prosecution be questioned about the content of pretrial publicity to which they had been exposed, even though eight of the twelve sitting jurors acknowledged familiarity with some pretrial publicity. Emphasizing that the trial court “retains great latitude in deciding what questions should be asked on voir dire,” id. at-, 111 S.Ct. at 1904, the Court stated:
“Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.” [Ibid, (quoting Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22, 28 (1981)).]
I cite Mu’Min not for the force of its analysis but rather to emphasize the gap between the majority’s holding and the Supreme Court’s insistence that the Constitution does not ordinarily require that jury voir dire in criminal cases include specific lines of interrogation.
In my view, the Court’s holding attaches undue significance to the question that the trial court refused to ask. I reach that conclusion not because of any doubt that some jurors would react strongly and emotionally to information that defendant had two prior murder convictions, but because such a reaction is almost inevitable and virtually inherent in the Legislature’s designation of a prior murder conviction as an aggravating factor. Jurors informed of a defendant’s prior murder convictions would naturally be influenced in the direction of favoring imposition of the death sentence. Whether a juror would be moved so far as not only to override, but also to preclude, any consideration of mitigating factors is an aspect of the weight to be attached by that juror to the prior murder convictions. To that extent, the trial court correctly observed that inquiry about defendant’s prior murder convictions would intrude to some degree on the weighing process to be conducted during the sentencing phase.
The majority’s holding also overrates the significance of a juror’s response to a question about prior murder convictions. We have learned from extensive review of jury voir dire in capital cases that most jurors have not reflected seriously about their precise views on capital punishment. Even open-ended questions about the death penalty during voir dire generate confusing and contradictory responses. An obvious impediment to an informative voir dire is the built-in time constraint, jurors being required to respond almost immediately to profound questions with religious and philosophical ramifications. Rare is the juror who is able to answer questions about the death penalty coherently, thoughtfully, and responsively. The question whether knowledge of defendant’s two prior murder convictions would impair a juror’s ability fairly to weigh evidence of mitigating factors against that aggravating factor is extraordinarily difficult and subtle. The reliability of the juror’s response may depend on the way the question is phrased, the judge’s tone and demeanor, and whether the juror adequately understands the complexity of the inquiry. Perhaps the best reason for asking the question is that the response may assist counsel in the exercise of peremptory challenges. In my view, however, the majority has attached too much significance to the prospect that the question and its answer reliably will identify jurors who are excludable for cause.
Another reason not to attach undue significance to the trial court’s failure to ask jurors whether defendant’s prior murder convictions would impede their ability to weigh mitigating factors is that the question is too abstract. If the response is to be informative, the jurors would seemingly need to be informed about the evidence of mitigating factors against which the prior-murder-conviction aggravating factor is expected to be weighed. In my view they should be so informed, but defendant’s request to the trial court apparently did not contemplate that the inquiry would be made in the context of the anticipated evidence of mitigation. Thus, the responses that the proffered question would have elicited are less significant in the context of the overall voir dire because they would not have reflected the thoughtful view of jurors informed of evidence of both aggravating and mitigating factors.
The Court’s opinion is troublesome for another reason. The Capital Punishment Act sets forth eight aggravating factors, N.J.S.A. 2C:11-3c(4)(a) to (h), all of which have the capacity, either individually or in combination with other aggravating factors, to influence a juror to vote for the death penalty to the extent of precluding that juror’s consideration of mitigating evidence. Murder of a public servant ((c)(4)(h)), murder committed for money ((c)(4)(d)), or murder involving depravity of mind ((c)(4)(c)), are examples of the more inflammatory aggravating factors. In this case the State offered evidence of depravity consisting of testimony that defendant murdered the victim for no reason other than his desire to kill. During the last day of voir dire defense counsel vaguely suggested that the trial court should question jurors whether evidence of the depravity aggravating factor would impair their ability to consider and weigh mitigating evidence, which the trial court summarily rejected. But the Court does not address whether that ruling was error, nor does it offer necessary guidance to trial courts on the aggravating factors about which jurors must be interrogated. The implications of the Court’s ruling in respect of other aggravating factors is an added basis for misgivings about the majority’s holding.
I do not share the majority’s view that this voir dire was constitutionally flawed. As is typical of jury voir dire in other capital cases, this voir dire had its ups and downs, including both instances of patient, open-ended inquiry and occasions on which the trial court’s questions hinted at a desired response. The trial court, nonetheless, consistently excused prospective jurors who indicated even the slightest suggestion of a predisposition to sentence defendant to death, including all jurors who expressed the possibility of prejudice because the victim was a young woman. On the whole, this voir dire in my view reflected a thoughtful and conscientious effort by the trial court to select a fair and impartial jury, with little objection having been asserted by defense counsel. The voir dire in this case simply cannot be compared with the inadequate voir dire that was the basis for our reversal in Williams II, supra, 113 N.J. 393, 550 A.2d 1172.
Because voir dire is an art and not a science, I believe the Court is unwise in attempting to freeze-frame part of the script for a constitutionally acceptable voir dire in capital cases. Bright-line rules for the conduct of voir dire are inherently suspect because they generate the need for more rules and exceptions to rules. In reviewing capital-case voir dire, we should be guided not by scripts or formulas but by the fundamental question whether the jury empaneled was fair and impartial, a standard I am convinced was satisfied in this case. I would affirm defendant’s sentence.
For Vacation and Remandment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER and POLLOCK — 4.
For Affirmance — Justices O’HERN, GARIBALDI and STEIN — 3.