[207 NJSuper Page 566] This case raises a number of novel issues concerning the New Jersey death penalty statute. N.J.S.A. 2C:11-3. By way of pretrial motions the defendants sought to strike the aggravating factor supported by N.J.S.A. 2C:11-3(c)(4)(f), merge two aggravating factors supported by N.J.S.A. 2C:11-3(c)(4)(g), limit the application of an aggravating factor based on N.J.S.A. 2C:11-3(c)(4)(c) and eliminate the death penalty as a possible
sanction because the defendants, as participants in a joint beating, may not be found to have committed the homicidal act by their own conduct. Lastly the Court considered the issue of whether after a jury has found the defendant guilty as to that part of the indictment that charges him with purposeful or knowing murder under N.J.S.A. 2C:11-3(a)(1) and (2), but has been unable to agree as to whether the homicidal act was by the defendant's own conduct, the State may retry the defendant and seek the death penalty against him a second time.
On August 30, 1984, the Grand Jury of Essex County indicted the defendants, James Moore, Craig Adams, and David Bostic, a juvenile, for the murder of Jack Hawthorne. The six count indictment first charges that the defendants did purposely or knowingly murder Hawthorne by their own conduct in violation of N.J.S.A. 2C:11-3(a)(1) and (2). The second count of the indictment alleges the defendants murdered Hawthorne while engaged in a robbery contrary to N.J.S.A. 2C:11-3(a)(3). The remaining counts of the indictment charge the defendants with robbery, N.J.S.A. 2C:15-1, burglary, N.J.S.A. 2C:18-2(a), possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d) and conspiracy, N.J.S.A. 2C:5-2. The State has alleged that Moore and Adams, along with David Bostic, caused Hawthorne's death by beating him on three separate occasions during the course of a robbery of Hawthorne and the burglary of his apartment. Hawthorne was a 5'3", 65-year-old man who weighed 123 pounds. The defendants range from 16 to 21 years old. The State has filed a notice of aggravating factors subjecting them to possible imposition of the death penalty.
At the end of the trial of Craig Adams the jury found the defendant guilty on all counts of the indictment, including count one, which charged Adams with the purposeful or knowing murder of Jack Hawthorne. However, the jury was unable to reach a unanimous decision on whether or not Adams committed a purposeful or knowing murder by his own conduct. The jury was discharged after they reported they were hopelessly
deadlocked and further deliberation on the issue of "by his own conduct" would be futile. All remaining defendants are awaiting trial.
Adams and Moore filed a host of pretrial motions.*fn1 The majority of the motions were disposed of by the court on the record on February 14, 1985. This opinion addresses the pretrial issues reserved at the hearing of February 14, 1985 and whether or not the State should be allowed to retry Adams and once again seek the death penalty because of the jury's failure to reach a unanimous verdict on the section of count one of the indictment which alleges that Adams committed the murder of Hawthorne by his own conduct.
First the defendants filed a pretrial motion to strike the aggravating factor supported by N.J.S.A. 2C:11-3(c)(4)(f), which states that an aggravating factor shall be found when:
The murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant or another.
Defendants' argument as to this factor is threefold. First, defendants argue that this section may only apply to the killing of a law enforcement officer. Second, defendants claim the murder must be committed to escape detection, apprehension, trial, punishment or confinement for an offense that arose out of an event separate from the events which lead up to the killing. Third, they contend that there is no evidence to support the State's allegation that they killed Hawthorne to prevent Hawthorne from identifying and testifying against them at trial.
The defendants' contention that N.J.S.A. 2C:11-3(c)(4)(f) applies only to the killing of a law enforcement officer or someone acting in the capacity of a law enforcement officer is without merit. This argument was rejected by courts of Florida and North Carolina in construction of a similar aggravating factor found within their death penalty statutes. Riley v. State, 366 So.2d 19, 22 (Fla.1979); State v. Goodman, 257 S.E.2d 569, 586 (N.C.1979). Moreover, defendants' contention makes no sense in light of aggravating factor N.J.S.A. 2C:11-3(c)(4)(h), which specifically applies to the killing of a law enforcement officer. To construe N.J.S.A. 2C:11-3(c)(4)(f) to apply only to the killing of a law enforcement officer would be an unwarranted duplication of aggravating factors.
The defendants' argument that the killing must be committed to avoid detection, escape, apprehension, trial, punishment or confinement for an offense that arose out of an event separate from the events which lead up to the killing calls for a narrow construction of this aggravating factor. In State v. Monturi, 195 N.J. Super. 317 (Law Div.1984), the court considered the construction of the another offense element of N.J.S.A. 2C:11-3(c)(4)(f). There, the court found that the series of offenses which occurred on or before the day of the murder could be used to support aggravating factor 2C:11-3(c)(4)(f). However, the 15 post-murder events or offenses could not be used to support this factor. Monturi, 195 N.J. Super. at 326-27. The alleged robbery of Hawthorne and the burglary of his apartment are clearly other offenses that occurred on the day of the murder. Therefore they may be used to support aggravating factor 2C:11-3(c)(4)(f). In other words, this court construes the "another offense" language to include the underlying crimes that may have been committed prior to or during the commission of the homicidal act itself. The gravamen of this aggravating factor is the silencing of potential witnesses, which could be for the underlying crime being committed or for a crime committed at another time. The invocation of this factor
should not depend on when the other crime occurred, but rather on the evil that attends ...