This capital case presents a unique and novel issue of procedure with respect to the bifurcated trial required under N.J.S.A. 2C:11-3c(1). The court must decide the proper manner in which to proceed where certain evidence which may be admissible to prove defendant's guilt may not be admissible at the penalty phase, assuming defendant is found guilty of a "purposeful" or "knowing" murder "by his own conduct".
The issue arises from the following factual situation. The indictment charges defendant with a series of seven offenses occurring on and before April 25, 1983. These offenses include two counts of conspiracy to commit murder and three counts of murder. The murders are alleged to have taken place on April 25, 1983. The indictment also charges the defendant with
fifteen additional counts. These "post-murder offenses" are alleged to have taken place on or after April 28, 1983.
The indictment presents two separate sets of offenses; those alleged to have taken place on or before April 25, 1983, and those alleged to have taken place on or after April 28, 1983, the "post murder offenses". The "post murder offenses" are not charged as part of a continuing conspiracy with those events alleged to have occurred on or before April 25, 1983. Thus, we are not concerned with an alleged conspiracy which involves conspiracy beyond April 25, 1983, or with allegations that the conduct referred to in the 15 post murder counts was in furtherance of the same conspiracy. If the events alleged to have occurred after April 25, 1983 were alleged as part of the same conspiracy or were allegedly committed in furtherance of a plan to prevent the victims of the "post murder offenses" from testifying about the same offenses which allegedly caused the murders, see N.J.S.A. 2C:11-3c(4)(f), the issue of joinder before one jury of all counts for all proceedings might not arise. However, as noted, the counts alleging "post murder offenses" do not on their face relate to the murders, the conspiracy to commit the murders, or to any pre-murder offense sufficient to satisfy N.J.S.A. 2C:11-3c(4)(f).
The State's proofs at the guilt phase of the trial will apparently consist largely of alleged admissions concerning the murders made by the defendant to the victims of the "post murder offenses" as well as evidence of the "post murder offenses" allegedly designed to have intimidated those witnesses. It is clear, and subject to little real dispute, that evidence of the "post murder offenses" would be admissible at the trial of defendant as to guilt. See, e.g., State v. Allen, 53 N.J. 250 (1969); State v. Hill, 47 N.J. 490, 500-501 (1966); State v. Chaney, 160 N.J. Super. 49, 65-66 (App.Div.1978) certif. den. 78 N.J. 405 (1978). However, the issue arises because generally the jury which considers guilt also considers penalty, see N.J.S.A. 2C:11-3(c)(1), and it is asserted, and quite possible, that some testimony concerning "post murder offenses" would prejudice
the defendant if considered by the penalty jury, should he be convicted of a "purposeful" or "knowing" murder "by his own conduct". It is further argued that no limiting or curative instruction at the penalty phase could remedy the prejudice. See, e.g., Evid.R. 4, 6.
The aggravating factors noticed are N.J.S.A. 2C:11-3(c)(4)(c) ("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") and N.J.S.A. 2C:11-3c(4)(f) ("The murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another"). Given the aggravating factors noticed and the scheme of N.J.S.A. 2C:11-3c, which limits the State's proofs at the penalty phase to the specific aggravating factors noticed, there is a real question as to whether any of the evidence concerning the "post murder offenses" will be admissible at the penalty phase. Thus, if the same jury hears the guilt and penalty phases and hears at the former evidence admissible as to guilt, but not admissible as to penalty, there is a serious possibility of prejudice. Because the use of a curative instruction may be inadequate, the court has considered whether these issues may be addressed pretrial, see R. 3:13-1, and whether to: (1) sever Counts VIII-XXII, the "post murder" counts, from Counts I-VII, and try guilt and penalty before the same jury which would be "death qualified" before the guilt phase; (2) determine pre-trial that guilt, and if necessary, penalty shall be tried before two different juries in which event the guilt phase shall be tried on all counts before a jury selected as in non-capital cases; or (3) empanel a "death qualified" jury and try the case as to guilt on all counts, deferring any decision as to the necessity for empaneling a separate "death qualified" jury for the penalty phase until the guilt phase is completed. I hold that the third alternative shall be followed. This alternative does not presume that a death penalty proceeding will follow, as does the first alternative requiring severence of counts.
Moreover, it is difficult if not imprudent, to pretry and prejudge all evidential and factual issues on which the ultimate issue may turn. It may be that, as the facts unfold, it will more clearly appear that evidence admitted as to guilt may or may not be considered at any penalty phase. It is generally inappropriate to decide issues of admissibility or concerning evidentiary rulings pretrial. See State v. Bass, 191 N.J. Super. 347 (Law Div.1983) rev'd. by Appellate Division, rev'd sub nom. State v. Nicely, 94 N.J. 550 (1983) (the Order of May 31, 1983 in State v. Bass and Nicely was entered as a result of the opinion of May 23, 1983); compare R. 3:13-1; see also State v. Lopez, 188 N.J. Super. 170 (Law Div.1983); cf. Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The second alternative may be more economical and ...