On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication June 15, 1995
Before Judges Shebell, Skillman and Wallace. The opinion of the court was delivered by Shebell, P.j.a.d. Skillman, J.A.D., Dissenting.
The opinion of the court was delivered by: Shebell
This case involves the limited issue of whether the death penalty may be imposed for purposely or knowingly causing serious bodily injury resulting in death where the offense occurred after adoption of the State constitutional amendment declaring such punishment not cruel and unusual punishment, but before the amendment of N.J.S.A. 2C:11-3 to expressly provide that SBI murder may support a death sentence. We conclude that it may not, and affirm the order under review.
The double homicide in question occurred on the morning of February 1, 1993. On March 18, 1993, the police arrested defendant, Dale A. Yothers, and his roommate, Christopher Walsh Jr., in connection with the slayings. While in custody, defendant admitted his involvement and asked for the death penalty.
On September 17, 1993, defendant and Walsh were charged in an indictment with attacking, robbing, and killing the two victims on February 1, 1993. At defendant's arraignment, the State served him with notice of aggravating factors weighing in favor of imposing the death penalty. See R. 3:13-4. On February 27, 1995, immediately before the commencement of jury selection, the State requested that the trial Judge instruct prospective jurors that a defendant may be found guilty of capital murder for either purposely or knowingly causing death or for purposely or knowingly causing serious bodily injury (SBI) resulting in the death of another. The Judge, reasoning that the statutory amendment was not in effect at the time of the homicides, refused to instruct the jury that capital punishment could be imposed for purposely or knowingly causing SBI resulting in death. We granted the prosecutor's request for a stay and for leave to appeal. This expedited appeal followed.
In State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), a case in which the evidence supported a conviction for either purposeful or knowing murder (hereinafter intentional murder) or purposeful or knowing infliction of serious bodily injury resulting in death (hereinafter SBI murder), the Supreme Court held that capital punishment for SBI murder was unconstitutional, as violative of the New Jersey Constitution's Cruel and Unusual Punishment Clause. Id. at 89.
Relying on the statements of Senator John Russo, the chief sponsor of the death penalty statute, the Court also noted that the legislative history of the statute indicated that those found guilty of SBI murder were not intended to be eligible for the death penalty. Id. at 89-90. Contrary to the Dissent's assertion that the Court's analysis of the legislative history was intended to legitimize the Court's narrowing of the statute, the Court referenced the legislative history to demonstrate that a narrow, constitutional interpretation of the statute was consistent with the Legislature's intent. Gerald, supra, 113 N.J. at 91.
Prior to enactment, Senator Russo stated that the statute was not intended to be as broad as capital legislation in other states, in that "it does not cover as many people as some of the other [states'] legislation does." Capital Punishment Act: Hearings on S. 112 Before the Senate Judiciary Committee (1982) at 1. Senator Russo explained that the statute required separate guilt and penalty phases, and that the defendant only faces death penalty proceedings after having been "found guilty unanimously and beyond a reasonable doubt of first degree murder, wilfull, premeditated murder." *fn1 Id. (emphasis added). Senator Russo also stated, "the bill deals with a conviction of first degree murder," id. at 2, and expressed his intent to draw the act as "tight" and "limited" as possible, id. at 30. The Senate Judiciary Committee Statement to S-112 (1982) provided that "only a person who actually commits an intentional murder * * * would stand in jeopardy of the death penalty." Similarly, the statement accompanying Assembly Bill No. 771, 1982 (identical to Senate Bill No. 112, which ultimately became the death penalty statute) stated: "Pursuant to the provisions of the bill, anyone who 'purposely' or 'knowingly' commits murder * * * would stand in jeopardy of the death penalty." The death penalty act also stiffened the punishment for non-capital murders by imposing a mandatory minimum thirty-year sentence without parole. N.J.S.A. 2C:11-3b.
Gerald noted that the legislative history was consistent with New Jersey's former death penalty statute, under which only those who committed intentional murder, felony murder, or murder of a law enforcement official were eligible for the death penalty. Gerald, supra, 113 N.J. at 90. Under the former statute, if the defendant only intended to cause serious bodily injury, the person was guilty of second-degree murder and was subject only to a prison term. State v. Ramseur, 106 N.J. 123, 388-89, 524 A.2d 188 (1987) (Handler, J., Dissenting) (citing State v. Thomas, 76 N.J. 344, 387 A.2d 1187 (1978); State v. Madden, 61 N.J. 377, 294 A.2d 609 (1972); State v. Anderson, 35 N.J. 472, 497, 173 A.2d 377 (1961); State v. Wynn, 21 N.J. 264, 121 A.2d 534 (1956)). Therefore, the legislative statements, made in connection with the 1982 enactment, indicating that the death penalty applies to "intentional murder" and first-degree murder no doubt referred to situations where the defendant intended to cause death.
Senator Russo's 1982 statements are consistent with remarks he made following Gerald in connection with proposed legislative action to overturn Gerald. At a July 10, 1989 public hearing concerning a proposed amendment to the Constitution to declare application of the death penalty to SBI murders not cruel and unusual punishment, Senator Russo made the following statements:
We said, if you intended to commit murder * * * you are now subject to execution * * *.
We came to the Conclusion, right or wrong -- some feel it should have gone further, some, of course, feel it shouldn't have gone that far -- that unless you intended to commit murder, you won't be subject to that greater penalty of death. That was a judgment made by this Governor, by myself as sponsor, and in its message by the majority of the Legislature in both parties, overwhelmingly.
[Public Hearing Before the Assembly Judiciary Committee on Assembly Concurrent Resolution No. 147, July 10, 1989, at 21.]
The legislative history that's quoted in the court's opinion is what the Governor and I specifically and carefully in our comments publicly outlined that we intended the death penalty to apply to.***
The Governor and his staff, and my staff and I intended only to apply the death penalty where one intended the result. It may be that there's an amendment necessary, to clarify our intent at the time, but not [the proposed amendment to the Constitution]. And that was in every public statement.***
But the thing I'm trying to emphasize is, that at no time did we intend -- other than the actual perpetrator or that the perpetrator who actually does it, also must have intended death.
My opposition to this is consistent with the view I've had from the beginning; that the death penalty should only apply to one who intends to commit murder.
The Committee Statement does say -- we're referring to the Committee Statement to the Death Penalty Bill -- that it only applies to those who intended murder.
At a May 26, 1992 public hearing on the constitutional amendment, Senator Russo again stated:
In New Jersey, as you know, there is no such thing as recorded sessions and things of that sort, so legislative intent is generally difficult. So I am basically giving you my recollection, what my intent was as sponsor, and my Discussions with the Governor, Governor Kean at the time. It was always -- it was always -- my intent as sponsor, and Governor Kean's, that the death penalty in New Jersey would be applied in only those unusually savage and severe murder cases where the defendant intended the death of his victim.
That is what I understand Governor Kean had in mind, and that is what I understand that most of the legislature was voting on.
[Public Hearing Before Senate Judiciary Committee on Assembly Concurrent Resolution No. 20, May 26, 1992, at 8-9.]
Senator Bubba, who voted for the death penalty in 1982 and who favored applying the death penalty to SBI murders at that time, also agreed that the 1982 act only applied to intentional murders. Id. at 40. Although not dispositive, it is clear that legislative statements made subsequent to legislation shed light on ...