The opinion of the court was delivered by: Stein, J.
On appeal from the Superior Court, Appellate Division.
This capital murder case, on interlocutory appeal, requires the Court to establish the appropriate jury instruction for serious bodily injury (SBI) capital murder. We also consider the state-of-mind requirement for SBI murder and whether the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9 (Code), contemplates prosecutions for both capital and non-capital SBI murder.
SBI murder is the purposeful or knowing infliction of "serious bodily injury resulting in death." N.J.S.A. 2C:11-3a(1) and (2). It is a form of murder that, since the so-called Gerald amendment to our state's constitution in November 1992, N.J. Const. Art. I, ¶ 12, may result in the imposition of the death penalty. N.J.S.A. 2C:11-3. In State v. Simon, 161 N.J. 416 (1999), we held that only purposely or knowingly causing serious bodily injury that creates a substantial risk of death satisfies the serious bodily injury capital murder requirement. There we said that "an injury that creates a substantial risk of death means one from which death is practically certain to ensue." Id. at 449. We acknowledge that that definition results in only a minimal distinction between knowing murder and knowing or purposeful SBI murder. Accordingly, we reconsider the definition of "substantial risk of death" in the context of SBI murder.
On December 11, 1995 74-year-old Santina Leonardi, the owner of a combination convenience store and home in Woolwich Township, was found dead on the floor of the store by her granddaughter. Mrs. Leonardi had been beaten about the head and face and stabbed fourteen times. A broken knife blade was embedded in Mrs. Leonardi's chest. Thirteen of the fourteen stab wounds penetrated the heart and major blood vessels surrounding the heart. The other wound was a defensive wound to her hand. Mrs. Leonardi was pronounced dead at the scene.
The Gloucester County Prosecutor's homicide investigation eventually focused on defendant Luis A. Cruz, Jr. On February 24, 1996 co-defendant Jorge Pinto-Rivera agreed to wear a body wire and thereafter had several conversations with defendant. The statements made by defendant during those conversations were insufficient, however, to support the issuance of an arrest warrant. Subsequently, on February 26, 1996, Pinto-Rivera had a telephone conversation with defendant that was monitored. During the conversation Pinto-Rivera asked defendant the name of the woman that he had murdered and defendant responded with the name of the decedent, Mrs. Leonardi. Defendant also said that he was alone when he committed the murder. Based on that evidence, defendant was arrested and charged with the murder of Mrs. Leonardi.
During his post-arrest interrogation, defendant made a taped statement confessing to Mrs. Leonardi's murder. He said that an unspecified person had threatened to shoot him if he did not steal the deed to her house from Mrs. Leonardi. Defendant said that he and Pinto-Rivera went to the victim's convenience store after it was closed to rob her of the deed, and that during the robbery Pinto-Rivera knocked Mrs. Leonardi to the floor. Defendant said he stabbed her because she knew him and could identify him. However, he claimed that he stabbed Mrs. Leonardi only twice, and that after he left the store co-defendant Pinto-Rivera reentered the store alone and remained there for a short time before the two left the area. Defendant now denies any involvement in the robbery or the murder. Co-defendant Pinto-Rivera was arrested and pled guilty to armed robbery and other offenses.
A Gloucester County Grand Jury returned an indictment charging defendant with capital murder and other related offenses. The County Prosecutor chose to prosecute defendant capitally and filed a Notice of Aggravating Factors alleging that the murder was committed for the purpose of escaping detection, N.J.S.A. 2C:11-3c(4)(f), and that the murder was committed while defendant was engaged in the commission of a robbery, N.J.S.A. 2C:11-3c(4)(g).
Selection of a capital jury began on September 13, 1999. Individual voir dire of the jurors began on September 21, 1999. The trial court, believing that this Court's opinion in State v. Simon, supra, 161 N.J. 416, was susceptible to more than one interpretation regarding the appropriate jury charge for SBI murder, requested and received interpretations of the Simon opinion from both parties. Accepting the jury charge submitted by the defense, the trial court instructed each prospective juror during the voir dire that the law of capital murder was as follows:
In order to be able to seek the death penalty the State must first prove beyond a reasonable doubt that the defendant by his own conduct committed what is called a purposeful or knowing murder.
A purposeful murder is one in which it was the defendant's purpose or conscious object or intention to cause the death of his victim and did cause it. A knowing murder is one in which the defendant knew or was aware that what he did was practically certain to result in the victim's death.
Another way of a murder being a purposeful or knowing murder is if the defendant had the purpose to inflict serious bodily injury on the victim, where the injury is such that death is practically certain to ensue, and at that time that the defendant was aware that his actions were practically certain to cause the death of a victim, and that person did, in fact, die, then this serious bodily injury type of murder is a form of murder that is potentially eligible for the death sentence.
That is the basic threshold for someone to even be possibly considered for the death penalty, that all 12 jurors unanimously find beyond a reasonable doubt that the defendant is guilty of committing that kind of murder, that is, a purposeful or knowing murder by his own conduct.
On October 22, 1999, following oral arguments on the issue, the trial court ruled that the charge at trial regarding SBI murder would be the same as that given to potential jurors during the voir dire process. The charge was to read as follows:
However, for a defendant to be subject to capital punishment, all jurors must unanimously agree that the State's proofs establish beyond a reasonable doubt that the defendant either purposely or knowingly caused death or serious bodily injury resulting in death, which injury was of such a nature that death was practically certain to result from it, and the defendant knew that such injury was practically certain to cause her death.
The Prosecutor's request for a stay of the trial pending interlocutory appeal of the court's charge on SBI murder charge was denied. On October 25, 1996 the sixteen-member petit jury was selected but not sworn. During jury selection the Prosecutor moved for leave to appeal the trial court's determination concerning the SBI murder charge to the Appellate Division. That court granted a stay of the trial, leave to appeal, and ordered that the jury not be sworn. The Attorney General filed a brief as amicus curiae with the Appellate Division proposing a third variation of the SBI murder charge.
On November 3, 1999 the Appellate Division in an unpublished opinion disapproved of the trial court's charge with respect to the requirement that the State prove that defendant knew that the injury was practically certain to cause Mrs. Leonardi's death. Dismissing the Attorney General's position as moot, the Appellate Division ordered that the ...