This matter comes before this court on a motion by defendant to have a single jury decide both the guilt and penalty phases of his capital murder trial despite statements by the New Jersey Supreme Court in State v. Biegenwald, 126 N.J. 1, at 44, 594 A.2d 172 (1991) (hereinafter Biegenwald IV).
This case arises out of a homicide which occurred at a Domino's Pizza store in Plainfield, New Jersey during the midafternoon of July 31, 1990. On March 4, 1991 the State filed a Notice of Aggravating Factors pursuant to N.J.S.A. 2C:11-3(c)(2)
and Rule 3:13-4(a), to wit: (1) the defendant has previously been convicted of murder (N.J.S.A. 2C:11-3(c)(4)(a)); (2) the murder was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement . . . (N.J.S.A. 2C:11-3(c)(4)(f)); (3) the offense was committed while the defendant was engaged in the commission of, or in an attempt to commit, or flight after committing or attempting to commit robbery . . . (N.J.S.A. 2C:11-3(c)(4)(g)). The only aggravating factor relevant to this motion is the first.
The statute that governs juries in capital cases reads in pertinent part:
In 1988, our Supreme Court recognized the potential need for two juries in a capital case. See State v. Moore, 113 N.J. 239, 550 A.2d 117 (1988). However, in 1991 it addressed the situation in more detail. Specifically, the Supreme Court stated in Biegenwald IV, 126 N.J. at pages 43-45, 594 A.2d 172:
Finally, we recognize that our finding that defendant is entitled to voir dire potential jurors on the possible blinding impact of the c(4)(a) factor most likely will require a two-jury system for all capital cases in which the State seeks to prove that factor. That is because aggravating factor c(4)(a), unlike all other aggravating factors, is proved by evidence not generally admissible during the determination of guilt or non-guilt. See Evid.R. 55.
It also noted in State v. Erazo, 126 N.J. 112, 594 A.2d 232 (1991) that a separate penalty-phase jury is favored when the guilt-phase evidence is so prejudicial as to render unlikely the ability of a jury to sit fairly on both phases of the trial.
Defendant and his attorneys argue in the case sub judice that they have determined "that it would not be advantageous for Mr. Parker to have two juries in this matter" and that defendant understands why it is preferable for him to have his case decided by a single jury. Defense attorneys ...