On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Pollock, Garibaldi and Stein. Dissenting -- Justices Clifford, Handler and O'Hern. The opinion of the Court was delivered by Stein, J. Handler, J., dissenting. Justice Clifford joins in so much of this opinion as departs from the Court's "new ruling" that non-unanimous jury decisions are "unreliable." O'Hern, J., dissenting. Justices Clifford and Handler join in this opinion.
In State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989), we affirmed defendant's conviction for the murder of Amie Hoffman but vacated his death sentence and remanded for a new penalty-phase hearing. The issue on this appeal is whether the State can offer evidence at the resentencing hearing of aggravating factors that were charged but that the jury in the first proceeding did not unanimously find to exist. The trial court concluded the State was barred from resubmitting those aggravating factors. We granted the State's motion for leave to appeal that ruling and now reverse.
On November 23, 1982, eighteen-year-old Amie Hoffman was abducted from the Morris County Mall where she worked part-time. Two days later, police discovered her body in a water-retention tank located in a secluded area of Randolph Township. Medical evidence revealed that she had been sexually assaulted and then stabbed to death. The resulting police investigation culminated in the arrest of James Jerold Koedatich. In October 1984, a Morris County jury convicted Koedatich of several offenses including murder and sentenced him to death.*fn1
At the penalty phase of the trial, the State charged four aggravating factors: (1) that defendant had previously been
convicted of murder, N.J.S.A. 2C:11-3c(4)(a) (defendant had been convicted of second-degree murder in Florida in 1971); (2) that the murder was committed while defendant was engaged in the commission of or flight from the commission of a sexual assault and kidnapping, N.J.S.A. 2C:11-3c(4)(g); (3) that the murder was committed for the purpose of escaping detection, N.J.S.A. 2C:11-3c(4)(f); and (4) that the murder was outrageously and wantonly vile, N.J.S.A. 2C:11-3c(4)(c).
The jury unanimously found that defendant had a prior murder conviction and that he killed Amie Hoffman in the course of a sexual assault and kidnapping. The jury was unable to agree unanimously with respect to the other two aggravating factors. The Penalty Phase Special Verdict Form revealed that eleven of the twelve jurors determined that the murder was "outrageously and wantonly vile," and eight determined that the murder was committed "to escape detection."
Defendant subsequently appealed both the conviction and the death sentence. Although this Court affirmed the underlying conviction, we vacated defendant's death sentence, finding reversible error in the penalty phase. 112 N.J. at 340, 548 A.2d 939. Specifically, we held that the trial court had erroneously charged the jury that the mitigating factors must outweigh the aggravating factors in order for the court to impose a sentence other than death. Id. at 325, 548 A.2d 939. Further, we held that the trial court had erred by requiring that the jury unanimously find the existence of mitigating factors. Id. at 326-27, 548 A.2d 939. Accordingly, we remanded the matter for a new penalty-phase hearing.
In September 1988, the State filed a Notice of Intention to Seek the Death Penalty at Resentencing, in which it relied on the same four aggravating factors charged in the initial sentencing proceeding. Defendant argued at resentencing that this Court's decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987) (Biegenwald II), and State v. Biegenwald, 110 N.J. 521, 542 A.2d 442 (1988) (Biegenwald III), preclude the
State from resubmitting both the "outrageously wanton and vile" and the murder "to escape detection" factors.*fn2 The trial court agreed, holding that those death-penalty decisions barred the State from charging any aggravating factors at resentencing that the jury in the first penalty phase did not unanimously find to exist.
We note that the Capital Punishment Act, N.J.S.A. 2C:11-3 (the Act), offers no specific guidance on the question whether aggravating factors not unanimously found to exist by the jury at the initial sentencing proceeding can be presented at resentencing following a remand. Nor have our prior decisions concerning the presentation of aggravating factors at resentencing dealt specifically with the issue raised by this appeal.
In Biegenwald II, supra, 106 N.J. 13, 524 A.2d 130, we affirmed defendant's conviction for the murder of Anne Olesiewicz, but reversed his death sentence because the trial court had improperly instructed the jury in the penalty phase. Accordingly, we remanded the case for a new sentencing proceeding, observing that "[r]esentencing cannot be considered double-jeopardy where the first sentence was a death sentence and the evidence was sufficient." Id. at 68, 524 A.2d 130.
At the initial penalty-phase proceeding in Biegenwald II, the jury unanimously found the existence of two aggravating factors: (1) that defendant had previously been convicted of murder, N.J.S.A. 2C:11-3c(4)(a); and (2) that "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." N.J.S.A. 2C:11-3c(4)(c) ("c(4)(c)"). We held that principles of double jeopardy barred the State from proving the existence of the "aggravated battery" or "torture" components of the c(4)(c) aggravating circumstance at resentencing because there was insufficient evidence in the record to support those components. 106 N.J. at 51, 524 A.2d 130. We noted, however, that the State would not be barred from offering evidence of "depravity of mind" to establish aggravating factor c(4)(c). Id. at 52, 524 A.2d 130.
In Biegenwald III, supra, 110 N.J. 521, 542 A.2d 442, the issue was whether the State could introduce as an aggravating factor at the resentencing hearing defendant's conviction for the murder of William Ward, which was obtained after the Olesiewicz conviction. We held that admission of the Ward conviction at resentencing complied with the double-jeopardy clauses of both the federal and state constitutions and with principles of fundamental fairness. Id. at 540-41, 542 A.2d 442. As dictum in that opinion, we offered this guideline:
If the sentencing jury in the first trial specifically rejects an aggravating factor or an appellate court finds that the State failed to establish by sufficient evidence the existence of an aggravating factor at the original trial, the aggravating factor[,] or that part of the aggravating factor rejected by the jury, cannot be used at the resentencing proceeding. [ Id. at 542, 542 A.2d 442.]
Neither Biegenwald II nor Biegenwald III, however, is dispositive of the issue before us. Therefore, we begin our analysis by considering the question in the context of double-jeopardy jurisprudence. Because we have held the double-jeopardy clauses of the state and federal constitutions to be substantially coextensive, State v. DeLuca, 108 N.J. 98, 102, 527 A.2d 1355 (1987); State v. Dively, 92 N.J. 573, 578, 458 A.2d 502 (1983); State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980), we proceed with an overview of federal double-jeopardy law pertaining to sentencing issues.
The Supreme Court has recognized that the double-jeopardy clause of the fifth amendment embodies three distinct protections for criminal defendants:
It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. [ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1965) (footnotes omitted).]
Constitutional protections against double jeopardy clearly preclude the retrial of a defendant who has been acquitted of the offenses with which he was charged. As the Court observed in Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199, 204 (1957):
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Nevertheless, it is consistent with the guarantee against double jeopardy to retry a defendant who has succeeded in obtaining reversal of his conviction based on trial errors:
It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. [ United States v. Tateo, 377 U.S. 463, 466, 84 S. Ct. 1587, 1589, 12 L. Ed. 2d 448, 451 (1964).]
Where a defendant's conviction has been overturned due to insufficient evidence, however, principles of double jeopardy prohibit retrial. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).
Defendants have sought to extend the significance accorded acquittal of a criminal offense to the imposition of a particular sentence. In North Carolina v. Pearce, supra, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656, the Court considered whether the imposition of a greater sentence, after conviction on retrial, was barred on double-jeopardy grounds. Reasoning that the "power to impose whatever sentence may be legally authorized" was a "corollary of the power" to retry a defendant whose conviction was set aside on appeal, the Court held that the prohibition against double jeopardy did not preclude the imposition of a harsher sentence on reconviction. Id. at 720, 89 S. Ct. at 2078, 23 L. Ed. 2d at 666. The Court explained that the rationale for
its holding "rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean." Id. at 721, 89 S. Ct. at 2078, 23 L. Ed. 2d at 667.
The Court's unwillingness to equate acquittals with the imposition of a particular sentence was reaffirmed in United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980). Rejecting arguments that for double-jeopardy purposes "the imposition of the sentence is an 'implied acquittal' of any greater sentence," id. at 133, 101 S. Ct. at 435, 66 L. Ed. 2d at 343, the Court upheld a provision of the Organized Crime Control Act that granted the government the right to appeal the sentences of "dangerous special offenders," as defined by that Act. Id. at 136, 101 S. Ct. at 437, 66 L. Ed. 2d at 345. Thus, because of fundamental distinctions between the two, the Court has made clear that "the pronouncement of sentence has never carried the finality that attaches to an acquittal." Id. at 133, 101 S. Ct. at 435, 66 L. Ed. 2d at 343.
Due to the unique features of penalty-phase proceedings in capital cases, the Court has modified its view on the distinction between trials and sentences, resulting in an exception to the "clean slate rationale" generally applicable to sentencing at retrial. In Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), the Court considered whether a defendant who was convicted of murder and sentenced to life imprisonment in a bifurcated-capital proceeding could, after successfully appealing his conviction, be subjected to the death penalty on retrial. The Court observed that by enacting a capital-sentencing procedure that resembles a trial on the issue of guilt, Missouri explicitly requires the jury to determine whether the prosecution has "proved its case" for the death penalty:
The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice.
Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes. [ Id. at 438, 101 S. Ct. at 1858, 68 L. Ed. 2d at 278-79 (footnote omitted).]
By sentencing defendant to life imprisonment at the first trial, the jury effectively "'acquitted' defendant of whatever was necessary to impose the death sentence." Id. at 445, 101 S. Ct. at 1861, 68 L. Ed. 2d at 283 (citation omitted); see also Arizona v. Rumsey, 467 U.S. 203, 211, 104 S. Ct. 2305, 2310, 81 L. Ed. 2d 164, 171 (1984) (holding that double-jeopardy clause prohibited State from seeking death penalty at resentencing, where judge sentenced defendant to life imprisonment in the original penalty-phase proceeding).
In Poland v. Arizona, 476 U.S. 147, 106 S. Ct. 1749, 90 L. Ed. 2d 123 (1986), the Court defined the contours of the "acquittal" analogy employed in Bullington and Rumsey as it applied to the resubmission at resentencing of an aggravating factor rejected at the original trial. In Poland, two brothers robbed a cash-delivery van and killed the two guards attending the van; the bodies were placed in weighted sacks and dumped into a lake. A jury convicted both defendants of capital murder. At the penalty-phase hearing, the State charged two statutory aggravating factors: (1) that defendants had "committed the offense as consideration for the receipt, or in expectation of the receipt, of [something] of pecuniary value"; and (2) that defendants had "committed the offense in an especially heinous, cruel, or depraved manner." The trial judge, sitting as sentencer, failed to find the existence of the "pecuniary gain" aggravating circumstance, believing it applied only to contract killings, but did find the existence of the "especially heinous, cruel, or depraved" factor. After performing the appropriate balancing procedure, the court sentenced defendants to death. On appeal, the Arizona Supreme Court reversed the convictions due to error in the guilt phase of the proceeding and remanded
for a new trial. With respect to the penalty phase, the court held that there was insufficient evidence to support the trial court's finding of the "especially heinous, cruel, or depraved" aggravating factor. The court also held that the "pecuniary gain" aggravating circumstance was not limited to situations involving contract killings and expressly ruled that that factor could be considered at resentencing.
Defendants were subsequently reconvicted of capital murder and sentenced to death. The trial judge found that the "pecuniary gain" and "especially heinous, cruel or depraved" aggravating factors were present in each defendant's case. On appeal, the Arizona Supreme Court again found insufficient evidence to support the existence of the "especially heinous, cruel, or depraved" aggravating factor. Concluding that there was sufficient evidence to support the "pecuniary gain" factor, however, the court upheld the respective death sentences.
The United States Supreme Court affirmed, observing that
[a]t no point during petitioners' first capital sentencing hearing and appeal did either the sentencer or the reviewing court hold that the prosecution had "failed to prove its case" that petitioners deserved the death penalty. Plainly, the sentencing judge did not acquit, for he imposed the death penalty. While the Arizona Supreme Court held that the sentencing judge erred in relying on the "especially heinous, cruel, or depraved" aggravating circumstance, it did not hold that the prosecution had failed to prove its case for the death penalty. [ Id. at 154, 106 S. Ct. at 1754, 90 L. Ed. 2d at 131-32.]
In so holding, the Court rejected defendants' argument that the sentencing judge "acquitted" them of the "pecuniary gain" circumstance by not finding its existence in the initial sentencing proceeding, concluding that principles of double jeopardy did not bar consideration at resentencing of evidence relating to that circumstance:
We reject the fundamental premise of petitioners' argument, namely, that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an "acquittal" of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has "decided that the prosecution has not proved its case" that the death penalty is appropriate. We are not prepared to extend Bullington further and view the capital sentencing hearing as a set of mini-trials on the existence of each aggravating circumstance.
Such an approach would push the analogy on which Bullington is based past the breaking point.
We hold, therefore, that the trial judge's rejection of the "pecuniary gain" aggravating circumstance in this case was not an "acquittal" of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Furthermore, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty "acquittal" by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the "clean slate" rule applied. [Id. at 155-57, 106 S. Ct. at 1755-56, 90 L. Ed. 2d at 132-33 (footnote omitted) (emphasis added).]
Although three Justices dissented in Poland, no member of the Court adopted the defendant's argument that principles of double jeopardy preclude the State from charging at resentencing aggravating factors not found to exist at the initial penalty-phase proceeding.*fn3 Therefore, under federal double-jeopardy doctrine, where a defendant who has been sentenced to death succeeds in having the sentence overturned on appeal, the "clean slate" rule of Pearce applies to the new sentencing proceeding. The State is permitted to resubmit aggravating factors at the new proceeding even if those factors were not found at the initial-sentencing proceeding, provided there is sufficient evidence in the record to sustain the original death sentence. Poland v. Arizona, supra, 476 U.S. 147, 106 S. Ct. 1749, 90 L. Ed. 2d 123. Where a ...