Norman Chickachop, Director of the Office of Child Abuse Control in the Division of Youth and Family Services of the Department of Human Services, the Attorney General and 19 county prosecutors have been served with subpoenas duces tecum requesting records pertaining to all child deaths since August 6, 1982 "where abuse, abandonment, cruelty or neglect is involved or suspected." The prosecutors were also asked for any "referrals on such cases from the Office of Child Abuse Control of D.Y.F.S." The subpoenas were served by defendant Nicely in advance of the guilt phase of this capital case. Chickachop, the Attorney General and the county prosecutors move to quash the subpoenas on various grounds.
Defendants assert a right to obtain the records at this time so that they can adequately prepare for both the guilt and penalty phases of the trial. They further claim that they must plan for the penalty phase at present in order to be prepared in the event either is convicted of a purposeful or knowing homicide by their own conduct. See N.J.S.A. 2C:11-3(a)(1), (2), (c). They argue that trial strategy regarding guilt may depend on the mitigating factors to be produced at the penalty phase, see N.J.S.A. 2C:11-3(c)(5) and that, in any event, they must prepare now for the penalty phase because it shall commence immediately following the prerequisite verdict. Moreover, defendants must give all discovery regarding the penalty proceeding "forthwith" upon entry of a verdict requiring the death penalty proceeding to be conducted. See R. 3:13-4(b).
Defendants argue that the information will reveal "disproportionality" in the event that the death penalty were imposed on either defendant in this case. They assert that they are entitled to show "disproportionality" at this time in order to avoid "death qualification" and other allegedly prejudicial consequences of procedures unique to the trial of a capital case. See State v. Nicely, 189 N.J. Super. 461 (Law Div.1983). Of course the death penalty cannot be imposed if it is "disproportionate"
to dispositions in similar cases considering the defendant and the offense. See Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976). See also N.J.S.A. 2C:11-3(e).
N.J.S.A. 2C:11-3(e) provides:
"Every judgment of conviction which results in a sentence of death under this section [ N.J.S.A. 2C:11-3] may be appealed, pursuant to the rules of court, to the Supreme Court, which shall also determine whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."
A "disproportionality" review is carried out by comparing factors relating to the particular case and the defendant before the court with the evidence and sentences in similar cases. See N.J.S.A. 2C:11-3(e). See also Gregg v. Georgia, supra, 428 U.S., at 161, 173, 188-204, 96 S. Ct. at 2919, 2925, 2932-2939. It is not necessary to definitively decide at this time what is meant by the term "disproportionate"; nor is it necessary to determine whether our statute provides for something different from or more than the federal constitution otherwise requires. It is sufficient to note that, while "disproportionality" is to be considered in terms of similar offenses and similar defendants beyond the matter now before the court, it is to be considered only after the death penalty is imposed.*fn1 To the extent that defendants assert that the information they seek relates to a "mitigating factor", their argument must also fail. The mitigating factors embodied in N.J.S.A. 2C:11-3(c)(5) relate to the
defendant or defendants and particular offense or offenses involved in the case now before the court.*fn2 See e.g., Lockett v. Ohio, 438 U.S. 586, 602-608, 98 S. Ct. 2954, 2963-2966, 57 L. Ed. 2d 973, 988-992 (1978). Therefore, the present subpoenas are not relevant to any proceeding now pending in the cause.
No case has been cited for the proposition that "disproportionality" can be tested pre-trial and particularly before the guilt phase. Moreover, summary judgment or an equivalent practice is not generally appropriate in a criminal case, particularly with respect to an issue such as sentence to be decided after all the facts and circumstances are developed. Cf. State v. Lopez, 188 N.J. Super. 170 (App.Div.1983); R. 3:21-2. Accord, Proffitt v. Florida, supra, 428 U.S., at 254-260, 96 S. Ct. at 2967-2970; Gregg v. Georgia, supra.*fn3 In fact, under the statute, the prosecutor can give notice of the aggravating factors "[p]rior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor . . .". Furthermore, the United States Supreme Court and New Jersey Supreme Court have apparently never reversed a conviction for a non-capital offense, lesser included or otherwise, merely because the jury was properly "death qualified" in a capital case. See Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049, 72 L. Ed. 2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d ...