On appeal from the Superior Court, Law Division, Monmouth County.
For reversal -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- Justice Handler. The opinion of the Court was delivered by Garibaldi, Justice. O'Hern, Justice, concurring. Handler, Justice, dissenting. Justice O'Hern concurring in the result.
[110 NJ Page 524] In State v. Biegenwald, 106 N.J. 13 (1987) (Biegenwald II), we affirmed Richard Biegenwald's conviction for the murder of Anne Olesiewicz but reversed his death sentence and remanded the case for a new sentencing procedure. This interlocutory appeal concerns the aggravating factors that may be used in defendant's new sentencing proceeding in the Olesiewicz case. Specifically, the issue here is whether in the new penalty phase of the Olesiewicz case the State may introduce as evidence of
aggravating factor N.J.S.A. 2C:11-3c(4)(a)*fn1 defendant's murder conviction of William Ward, obtained after his Olesiewicz murder conviction, but before the resentencing phase of that case.
N.J.S.A. 2C:11-3, the Capital Punishment Act (the Act), is silent with respect to proceedings on retrial. We entertain this interlocutory appeal in view of its importance to the State and to this defendant and similarly-situated defendants, in establishing some guidelines to be applied in the resentencing phase of a capital case.
On December 7, 1983, a Monmouth County jury convicted the defendant, Richard Biegenwald, of the murder of Anna Olesiewicz and sentenced him to death. At the sentencing phase, the prosecutor sought to establish two aggravating factors: Sec. (c)(4)(a), which provided at that time that the State could introduce evidence that "[t]he defendant has previously been convicted of murder;" and Sec. c(4)(c), which provides that "[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim". As evidence of Sec. (c)(4)(a) the State introduced defendant's 1959 murder conviction for which he served almost eighteen years in prison.*fn2 The defendant sought to establish three mitigating factors: Sec. c(5)(a), that "defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to
prosecution;" Sec. c(5)(d), that "defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect . . . but not to a degree sufficient to constitute a defense to prosecution;" and Sec. c(5)(h), "[a]ny other factor which is relevant to the defendant's character or record or to the circumstances of the offense."
The jury found both aggravating factors beyond a reasonable doubt and two of the mitigating factors, Sec. c(5)(d) and (5)(h). However, the jury found that neither aggravating factor was outweighed by the combined mitigating factors. Accordingly, pursuant to Sec. c(3)(a), defendant was sentenced to death.
Defendant appealed to this Court as of right under Rule 2:2-1(a)(3). On March 5, 1987, this Court affirmed Biegenwald's murder conviction but reversed the death sentence because the trial court failed to instruct the jury properly in the sentencing phase that it must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. See Biegenwald II, supra, 106 N.J. at 18.
On February 16, 1984, after defendant's conviction for the Olesiewicz murder, but before this Court's disposition of his appeal in that case, defendant was convicted of the murder of William Ward. In the Ward case, the State again presented defendant's 1959 murder conviction as evidence of aggravating factor c(4)(a), but also attempted to present defendant's prior conviction for the Olesiewicz murder as further evidence of that factor. Biegenwald I, supra, 96 N.J. at 633. In Biegenwald I, we held that during the penalty phase of the Ward capital proceeding the State could not use defendant's Olesiewicz murder conviction to prove Sec. c(4)(a). The jury convicted defendant of Ward's murder and the trial court sentenced him to life imprisonment with thirty years of parole ineligibility. The Appellate Division affirmed Biegenwald's conviction for the murder of Ward. On May 28, 1987, we denied defendant's petition for certification in the Ward case. 107 N.J. 649 (1987).
In the new penalty phase of the Olesiewicz murder case, the State made a motion to admit defendant's 1984 conviction for the murder of William Ward as evidence of aggravating factor Sec. c(4)(a). The trial court denied the State's motion. By order dated February 19, 1988, we granted the State's interlocutory motion for leave to appeal the trial court's order, and now reverse.*fn3
As enacted in 1982 and at the time of the original Olesiewicz trial, Sec. c(4)(a) of the Act provided that "[t]he aggravating factors which may be found by the jury or the court are: (a) the defendant has previously been convicted of murder . . ." In 1985, the Legislature amended Sec. c(4)(a) to read "[t]he defendant has been convicted, at any time, of another murder. For purposes of this section, a conviction shall be deemed final when sentence is imposed and may be used as an aggravating factor regardless of whether it is on appeal." L. 1985, c. 178, § 2.
The legislative history of the 1985 amendments discloses that the amendments were made directly in response to this Court's decisions in Biegenwald I, supra, and State v. Bey, 96 N.J. 625 (1984). In Biegenwald I, the sole issue was whether during the penalty phase of a capital case the State could use as an aggravating factor under Sec. c(4)(a) a defendant's prior conviction for murder when the appeal of that conviction was not final. There we noted that the relevant language "has previously been convicted of murder" was unclear on its face, and simply did not "explicate the necessity for or degree of finality" that must attach to a prior conviction for its use pursuant to Section c(4)(a). 96 N.J. at 634-35. While recognizing that "our resolution of the question presented is not free from doubt," id.
at 639, we held that a prior conviction could not be used as a Sec. c(4)(a) aggravating factor until appellate review of that conviction was final. Ultimately, however, we concluded, "this is a matter committed to the wisdom of the Legislature." Id. at 640. "[T]he Legislature," we wrote, "may clarify or modify the present scheme to the extent that our interpretation does not commend itself to some as yet unarticulated statutory purpose or policy." Ibid. The same issue was also present in State v. Bey.
The Legislature responded to these decisions by amending c(4)(a) in 1985. The legislative history of the 1985 amendment discloses that the Legislature specifically intended to permit the use of convictions on appeal to insure that serial killers do not evade the consideration of their multiple murder convictions as aggravating factors:
In two recent decisions, State v. Bey and State v. Biegenwald, both decided on June 26 of this year, the New Jersey Supreme Court ruled that a defendant found guilty of murder cannot, pending the conclusion of direct appeal proceedings challenging the guilty verdict, be considered as "having been convicted" for sentencing purposes under the capital punishment statute.
Prosecutors are concerned about this ruling because they feel that it will hamper the prosecution of so-called "serial murder[ers]," individuals who kill victims randomly in a series of unrelated crimes. When discovered, these murderers usually undergo a separate trial on each murder charge. Often a trial will begin while a prior conviction is still in the appeal process. Prosecutors are concerned that if prior convictions on appeal cannot be introduced, in effect the death penalty will not be able to be used against the type of murderer for which capital punishment was intended. The Senate committee amendments would permit the introduction of prior murder convictions while on appeal during the sentencing phase of a death penalty trial. It should be noted with regard to this amendment that the majority of states with capital punishment statutes do permit convictions on appeal to be introduced as prior convictions. [Statement of Assembly Judicial Committee to Senate No. 950, February 4, 1985, at 3.]
Although the Legislature's policy underlying the amendment of Sec. c(4)(a) -- endorsing application of the factor to serial killers -- favors allowing the use of the Ward conviction at the Olesiewicz resentencing, the amendment is not determinative of the issue. Defendant's appeal of his Ward murder conviction
has been finalized; hence, the specific issue that the 1985 amendment addressed is not present in this case.
Instead, we find that the Ward conviction is admissible under the original language of Sec. c(4)(a). This conclusion is supported by the other issue we decided in State v. Bey. There we held that the Sec. c(4)(a) language "has previously been convicted of murder" did not require that the previous conviction occur before the commission of the murder being tried in order to have it considered as an aggravating factor at the penalty phase of the capital case. State v. Bey, supra, 96 N.J. at 628-29.
In Bey, defendant argued that "previously" meant prior to the commission of the offense for which he was being tried. In rejecting that position, we stated:
We find no legislative history, decisional law, or policy considerations to recommend defendant's interpretation. We are satisfied that the status of the prior conviction at the time of its intended use -- the penalty phase of the subsequent murder prosecution -- is determinative. The relevance of such a conviction . . . inheres in the fact that the conviction has occurred prior to the jury's consideration of the appropriate penalty to be imposed. [Id. at 629 (emphasis added).]
Because the Ward conviction became final prior to the resentencing hearing for the Olesiewicz murder, under the terms of the original enactment it is relevant to "the jury's consideration of the appropriate penalty to be imposed." The amended language of Sec. c(4)(a) does not lead us to abandon this interpretation. The legislative statements accompanying S.950 are silent concerning the proper construction of the amended provision, which now reads "[t]he defendant has been convicted, at any time, of another murder." (emphasis added). Nonetheless, we believe that this language is merely a ratification of this Court's holding in Bey that prior convictions need not have been entered prior to the commission of the death-eligible murder. This reasoning is supported by the previously quoted statement accompanying S.950, in which the Legislature registered its concern that capital juries not be foreclosed from considering the most aggravating evidence against serial killers
-- their other murders -- by procedural hurdles created because "these murderers usually undergo a separate trial on each murder charge." Adoption of this position furthers the Legislature's clear intent to prevent the frustration of the State's prosecution of serial murderers by allowing each successful prosecution of a serial murderer to inure to the State's benefit in a resentencing proceeding.
The cases in other jurisdictions support our decision here. We recognize that the relevance of other states' capital cases depend in part on the state's specific capital punishment statutes. Nevertheless, the reasoning behind these decisions as well as the Supreme Court decisions on this issue support our position that prior convictions entered after the original trial but before the resentencing proceeding should be considered by the jury as an aggravating factor.
The United States Supreme Court has held that there is no federal constitutional prohibition against a statute, like Sec. c(4)(a), that allows the state to introduce evidence of defendant's prior convictions in the penalty phase of a bifurcated capital sentencing proceeding. See, e.g., Poland v. Arizona, 476 U.S. 147, 150, 158, 106 S. Ct. 1749, 1752, 1756, 90 L. Ed. 2d 123, 129, 134 (1986) (both majority and dissent note without comment that the prosecutor alleged as an additional aggravating circumstance against one defendant a felony conviction arising after the first penalty proceeding); Zant v. Stephens, 462 U.S. 862, 886, 103 S. Ct. 2733, 2747, 77 L. Ed. 2d 235, 255-56 (1983); Gregg v. Georgia, 428 U.S. 153, 165 n. 9, 193-95, 96 S. Ct. 2909, 2921 n. 9, 2934-36, 49 L. Ed. 2d 859, 870 n. 9, 886 (1976); Biegenwald II, supra, 106 N.J. at 53-54 n. 7.
Other jurisdictions have specifically allowed the use on remand of a conviction gained after imposition of the death sentence that is being retried. In State v. Teague, 680 S.W. 2d 785, 789-90 (1984), the Supreme Court of Tennessee relied on a reading of its statute's "previously convicted" aggravating circumstance that paralleled this Court's reading in Bey, and
held that the defendant's "plea and conviction . . . occurred after [his] first trial . . . but before the re-sentencing hearing and, consequently, may be used as an aggravating factor." In reaching that conclusion, the Court noted that the important point was that the conviction be entered before the resentencing hearing. See also State v. Adkins, 725 S.W. 2d 660, 665 (Tenn.) (conviction of defendant for aggravated assault obtained after defendant's first trial for murder was properly admitted in resentencing hearing as "previous conviction," in support of aggravating circumstances), cert. den., U.S. , 107 S. Ct. 2491, 96 L. Ed. 2d 383 (1987); cf. Oats v. State, 446 So. 2d 90, 94-95 (Fla.1984) (trial court erred in finding prior violent crime aggravating factor existed where prior conviction was later vacated; when prior crime was retried and conviction affirmed on appeal, however, it could again be presented at resentencing).
Similarly, in State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, cert. den., 461 U.S. 971, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (1983), the Supreme Court of Arizona upheld the use at resentencing of a conviction entered after the first sentencing trial, holding that "[c]onvictions entered prior to a sentencing hearing may . . . be considered regardless of the order in which the underlying crimes occurred . . . or the order in which the convictions were entered." 135 Ariz. at 57 n. 2, 659 P. 2d at 16 n. 2. The court relied on its view that the purpose of the sentencing hearing "'is to determine the character and propensities of the defendant. . . . Revelation of subsequent lawless acts . . . would help to attain the objectives of the sentencing statute.'" Id. (quoting State v. Valencia, 124 Ariz. 139, 141, 602 P. 2d 807, 809 (1979)); see Richmond v. Ricketts, 640 F. Supp. 767 (D.Ariz.1986) (conviction for first degree murder that could not have been presented at trial was admitted at resentencing hearing as an aggravating circumstance); State v. Richmond, 136 Ariz. 312, 666 P. 2d 57 (prior murder conviction entered against defendant subsequent to conviction in present case was proper aggravating circumstance in resentencing proceeding), cert.
den., 464 U.S. 986, 104 S. Ct. 435, 78 L. Ed. 2d 367 (1983); Jones v. State, 381 So. 2d 983, 994 (Miss.1980) (words "previously convicted" applied so that defendant's armed robbery conviction entered after the murder was committed could be considered as an aggravating factor during sentencing phase of murder case; "the legislature undoubtedly intended a weighing of both [aggravating and mitigating factors] at the time of sentencing so the past behavioral patterns likely to ...