[189 NJSuper Page 448] Defendants moved to dismiss this indictment, charging a capital offense, by asserting that N.J.S.A. 2C:11-3 is unconstitutional. They also attack the constitutionality of N.J.S.A. 2C:11-3(c)(4)(c) which the State claims to be the aggravating factor justifying imposition of the death penalty in this case. Notice that the State would endeavor to prove that factor was given at the arraignment. See R. 3:13-4. As a result the court granted defendants' request for a bill of particulars in preparation for trial and in anticipation of a challenge to the application of N.J.S.A. 2C:11-3(c)(4)(c).*fn1 However, the court has reserved
decision as to whether the sufficiency of the State's proofs or constitutionality of the aggravating factor, as applied, can be determined before trial or even before the penalty phase which follows a guilty plea or verdict. See N.J.S.A. 2C:11-3(c)(1); footnote 5, infra.
At argument on the motions, defendants tacitly agreed that an unconstitutional provision relating to the penalty or aggravating factor involved in this case could undoubtedly be severed, see State v. Funicello, 60 N.J. 60, 67 (1972); N.J.S.A. 2C:1-1(h). The State conceded because of procedures unique to the trial of a death penalty case, that defendants have standing to mount a pretrial facial constitutional attack upon the aggravating factor, N.J.S.A. 2C:11-3(c)(4)(c), which was noticed in this case. This opinion concerns only the constitutionality of the aggravating factor.*fn2
To be successful on this motion, based on federal grounds, defendants must convince this court that the plurality in Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), was in error when it said that "In Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, [(1976),] the Court held that this statutory aggravating circumstance (§ (b)(7)) is not unconstitutional on its face." 446 U.S., at 422, 100 S. Ct., at 1762 (emphasis added). See Gregg v. Georgia, supra, 428 U.S., at 199-204,
96, S. Ct., at 2937-2939 (opinion of Justices Stewart, Powell and Stevens), and concurring opinions.
N.J.S.A. 2C:11-3(c)(4)(c) is substantially identical to Ga.Code § 27-2534.1(b)(7) considered in Gregg and Godfrey. The only difference is that our aggravating factor applies only upon convictions for a purposeful or knowing murder (by "any person . . . who committed the homicidal act by his own conduct or who as an accomplice procured the commission of the offense by payment or promise of payment, of anything of pecuniary value . . ." N.J.S.A. 2C:11-3(c)), whereas the Georgia factor applies to certain crimes beyond murder.
N.J.S.A. 2C:11-3(c)(4)(c) provides as an aggravating factor permitting death that "The murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim". In Gregg, supra, the lead opinion of Justices Stewart, Powell and Stevens noted:
"It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction." 428 U.S., at 201, 96 S. Ct., at 2938.
Four years later, in Godfrey, the issue was whether the Georgia Supreme Court "had adopted such a broad and vague construction of the § (b)(7) aggravating circumstance as to violate the Eighth and Fourteenth Amendments . . ." 446 U.S., at 423, 100 S. Ct., at 1762. In holding that the Georgia Supreme Court did not apply a constitutional construction of the aggravating factor, 446 U.S., at 432, 100 S. Ct., at 1766, the plurality made clear that the statute could have been interpreted to permit non-arbitrary application "based on reason rather than caprice or emotion", 446 U.S., at 433, 100 S. Ct., at 1767. In Godfrey, the Georgia Supreme Court did not construe or limit section (b)(7) as it had in prior cases. But Godfrey is more than a disproportionality opinion. The United States Supreme Court addressed more than arbitrariness. The court seemingly approved section (b)(7) as previously construed by the state courts which subsequently
failed to review Godfrey by the same standard.*fn3 Thus, reading Gregg and Godfrey together leads to the conclusion that, properly construed and applied, N.J.S.A. 2C:11-3(c)(4)(c), like section (b)(7) of the Georgia Code, is constitutional. See also Proffitt ...