An indictment was filed on June 28, 1983 in which defendant was charged with one count of a knowing or purposeful murder of Keith Vanderhoof on May 5, 1983 contrary to N.J.S.A. 2C:11-3(a)(1) or (2) and one count of possession of a handgun with purpose to use it against another contrary to N.J.S.A. 2C:39-4(a). Defendant was originally arrested for the murder on May 6, 1983. He was arraigned on the indictment on June 30, 1983.
Following arraignment, the prosecutor determined the case qualified as a capital offense and served defendant with notice of the particular aggravating factor [ N.J.S.A. 2C:11-3c(4)(b) ] the State intends to rely upon. R. 3:13-4(a) provides that notice of aggravating factors should be served at time of arraignment. Notice in this case was not served until September 15, 1983 and the prosecutor has made no application to enlarge the time for good cause.
Defendant has moved to dismiss the indictment and strike the aggravating factors on various constitutional and nonconstitutional grounds. With respect to the constitutional assertions, defendant contends that N.J.S.A. 2C:11-3 violates the United States Constitution because it does not sufficiently limit the crimes punishable by death, fails to provide an unambiguous standard by which a jury can decide the applicability of the death penalty, mandates a sentence of death if the jury finds an aggravating factor exists and is not outweighed by any mitigating factors, places significant limitation upon a defendant's right to contest the penalty phase and does not provide for an adequate appellate review. Defendant contends that N.J.S.A. 2C:11-3 violates the New Jersey Constitution because it allows a form of punishment which is cruel in light of contemporary standards of decency, because the death penalty will inevitably be applied in a discriminatory and arbitrary manner, because the death penalty has no deterrent effect and serves no legitimate purpose, because the sentencing provision limits the jury's
function and because the aggravating factors are not presented to the Grand Jury.*fn1 Defendant further contends the particular aggravating factor, if construed to apply to this case, violates the due process and equal protection provisions of both the federal and state constitutions. Defendant also argues that the particular aggravating factor must be stricken and the death penalty removed because the prosecutor has not given timely notice of his intention to seek the death penalty.
In order to place defendant's federal constitutional arguments in perspective, it is necessary to review the relevant death penalty decisions of the Supreme Court of the United States, for both the judicial invalidation of New Jersey's prior death penalty and the legislative fashioning of the present death penalty law have been guided by these decisions. See State v. Funicello, 60 N.J. 60, 67 (1972), cert. den. 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972); State v. Bass, 189 N.J. Super. 445, 451 (Law Div.1983).
In both Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) and Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), the Supreme Court of the United States found both the Georgia and the Florida death penalty statutes constitutional, and held that the imposition of capital punishment for the crime of murder where a life has been taken deliberately by the offender was not per se violative of the Eighth and Fourteenth Amendments. In doing so the Court noted that:
in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. '[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people. . . .' [428 U.S. at 175, 96 S. Ct. at 2926, 49 L. Ed. 2d at 876]
And, after evaluating arguments of "standard of decency" and studies and statistical data*fn2 relating to the worth of the death penalty as a deterrent, the Supreme Court said:
The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. . . . [428 U.S. at 186, 96 S. Ct. at 2931, 49 L. Ed. 2d at 882]
The necessity and propriety of capital punishment, therefore, is peculiarly within the province of the respective state legislatures.
The Supreme Court did, though, caution that capital punishment is an extreme sanction, suitable only to the most extreme of crimes. Because of its uniqueness, the death penalty cannot be imposed under a statutory scheme that creates a substantial risk that the death penalty would be inflicted in an arbitrary and capricious manner. Gregg, supra, 428 U.S. at 188, 96 S. Ct. at 2932, 49 L. Ed. 2d at 883. Thus, to meet constitutional muster, a state death penalty law must carefully define the crimes for which death may be a sentence. It must direct the sentencer's discretion by clear and objective standards, providing specific and detailed guidance, and it must provide for an appellate process by which a sentence of death may be rationally reviewed. Godfrey v. Georgia, 446 U.S. 420, 428,
100 S. Ct. 1759, 1764-1765, 64 L. Ed. 2d 398, 406 (1980); Gregg v. Georgia, supra, 428 U.S. at 206-207, 96 S. Ct. 2909 at 2940-2941, 49 L. Ed. 2d at 893; Proffitt v. Florida, supra, 428 U.S. at 248-253, 96 S. Ct. 2960 at 2964-2967, 49 L. Ed. 2d at 920-923. Further, the sentencing procedure must allow any mitigating factors to be considered (Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)) and the death sentence cannot be mandatorily imposed upon conviction for murder (Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976)). See also State v. Bass, 189 N.J. Super. 445, 453-454 (Law Div.1983).
As did the Georgia and Florida death penalty statutes analyzed and upheld in Gregg and Proffitt, the New Jersey death penalty statute provides a facially constitutional sentencing scheme. Conduct constituting the offense of murder is clearly defined in N.J.S.A. 2C:11-3a(1), (2) and (3). It is only a conviction under N.J.S.A. 2C:11-3a(1) or (2) which triggers the potential for the death penalty.*fn3 Further, the death penalty provisions of N.J.S.A. 2C:11-3c are raised only where the murder under 3a(1) or (2) is committed by defendant's own conduct or where defendant as an accomplice procures the murder by payment or promise of payment of anything of pecuniary value. If the death penalty provisions are applicable, a separate sentencing proceeding is required. Where defendant has been tried by a jury, the sentencing proceeding is conducted by the judge who presided at trial and before the same jury that determined defendant's guilt, except that for good cause a new jury may be empanelled. Where the defendant has entered a [195 NJSuper Page 295] guilty plea or has been tried without a jury, the sentencing proceeding is to be conducted by the same judge and before a jury empanelled for that purpose. A sentencing proceeding may be conducted without a jury on defendant's motion and with consent of the prosecutor. N.J.S.A. 2C:11-3c(1). At the sentencing proceeding, the State has the burden of proving beyond a reasonable doubt the existence of the aggravating factor(s) relied upon. The defendant has the burden of producing evidence of the existence of any mitigating factors. Both shall be permitted to rebut any evidence presented by the other and present argument as to the adequacy of the evidence to establish the existence of an aggravating or mitigating factors. N.J.S.A. 2C:11-3c(2). The jury, or if there is no jury, the court, must return a special verdict setting forth in writing the existence or non-existence of each of the aggravating and mitigating factors involved. If any aggravating factor is found to exist, the verdict must state whether it is or is not outweighed by any one or more mitigating factors. If the jury, or if no jury, the court, finds that any aggravating factor exists and is not outweighed by one or more mitigating factors, then the court shall sentence the defendant to death. If the jury, or if no jury the court, finds that no aggravating factor exists or that any aggravating factors which exist are outweighed by one or more mitigating factors, or if the jury is unable to reach a unanimous verdict, the death penalty will not be applicable. N.J.S.A. 2C:11-3c(3). ...