This formal written opinion is intended to embody and augment the oral decision previously rendered by the court in this matter. The issues addressed herein arise from certain pretrial motions brought by defendant Smith and the State in this case.
The salient facts are as follows. Smith is charged with first degree murder in the shooting death of 16-year old Ismael
Rodriquez. Smith was 17 at the time of the murder.*fn1 Jurisdiction over the case was waived by the Juvenile and Domestic Relations Court judge pursuant to N.J.S.A. 2A:4-48, also known as the waiver statute.*fn2 The waiver statute allows the Family Court, formerly the Juvenile and Domestic Relations Court, to relinquish jurisdiction over certain cases to the Law Division without the consent of the juvenile.
N.J.S.A. 2A:4-48 set out the standards to be considered by the Juvenile and Domestic Relations Court judge in determining whether to waive jurisdiction over Smith's case, and reads in pertinent part:
2A:4-48. Referral to other court without juvenile's consent
The juvenile and domestic relations court may, without the consent of the juvenile, waive jurisdiction over a case and refer that case to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that:
a. The juvenile was 14 years of age or older at the time of the delinquent act;
b. There is probable cause to believe that the juvenile committed a delinquent act which would constitute homicide . . . and
c. The court is satisfied that adequate protection of the public requires waiver and is satisfied there are no reasonable prospects for rehabilitation of the juvenile prior to his attaining the age of majority by use of the procedures, services and facilities available to the court.*fn3
A juvenile whose case has been transferred to the Law Division pursuant to the waiver statute is subject to indictment, trial, conviction and sentencing as an adult. See N.J.S.A. 2A:4A-28 (original version at N.J.S.A. 2A:4-50).
Both the Superior Court, Appellate Division and the Supreme Court denied Smith's appeals of the waiver order. The grand jury returned an indictment charging him with purposeful or knowing murder by his own conduct, felony murder, first degree robbery and third degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:11-3a(1)-3a, (2), -3a(3), 2C:15-1 and 2C:39-5b. Thereafter, the prosecutor served Smith with notice of an aggravating factor N.J.S.A. 2C:11-3c(4)(g), which reads in relevant part: "The offense was committed while the defendant was engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit robbery. . . ." By serving Smith with notice of the aggravating factor he intended to prove in the sentencing proceeding, the prosecutor invoked the capital sentencing procedures of N.J.S.A. 2C:11-3c.
Smith moved to strike the application of N.J.S.A. 2C:11-3c, maintaining that he should not be exposed to the death penalty. He argued that the death penalty as applied to a juvenile violates the prohibition against cruel and unusual punishment contained in both the United States Constitution and the New Jersey Constitution. He further asserted that the New Jersey Legislature, in reenacting the death penalty in 1982, never intended or contemplated that capital punishment might be applied to a juvenile. Finally, Smith contended that the decision of the prosecutor to seek the death penalty in his particular
case was arbitrary, capricious and discriminatory, and therefore violated the Eighth Amendment's mandate against cruel and unusual punishment and Smith's equal protection rights under the Fourteenth Amendment.
In an endeavor to obtain information to substantiate his claim of arbitrary, capricious and discriminatory prosecution of his case as a capital cause, Smith served the prosecutor with a subpoena duces tecum, demanding that the prosecutor provide him with the guideline according to which homicide cases are selected for capital treatment and memoranda pertaining to the selection and rejection process. The State moved to quash Smith's subpoena duces tecum on the grounds that he had not demonstrated that the information sought was relevant and material to his claim of unconstitutional selectivity in the prosecutor's decision to treat his case as a capital case, and that much of the information demanded by Smith was confidential and not subject to subpoena.
It is these motions by Smith to strike application of N.J.S.A. 2C:11-3c, and by the State to quash Smith's subpoena duces tecum which comprise the substance of this opinion.
Smith contends that imposing the death penalty on persons under the age of 18 constitutes cruel and unusual punishment, and as such is forbidden by the Eighth Amendment of the United States Constitution, brought forward to the states under the Due Process Clause of the Fourteenth Amendment, and Article I, paragraph 12 of the New Jersey Constitution. The court, however, declines to resolve this issue because a decision as to whether the death penalty as applied to a juvenile is constitutionally impermissible would be, at this stage of these proceedings, premature and therefore improper.
As a fundamental proposition, courts should exercise restraint when asked to decide questions of constitutional import. "Trial courts are mandated to ...