This matter having come before the Court on the State's motion for clarification of certain aspects of the opinion and judgment filed February 3, 2004,
And the Court having duly considered the submissions of counsel and having determined that the application should be resolved on an expedited basis,
And good cause appearing;
IT IS ORDERED that the motion is granted, and the judgment of the Court is clarified as follows:
1. In any case in which the penalty phase of a capital case had begun before the issuance of the Fortin
opinion, including any case in which the trial court had begun empanelling a jury, there is no requirement that the State present the aggravating factors to a Grand Jury.
2. In any case in which the guilt phase of the capital case had begun before the issuance of the Fortin opinion, including any case in which the trial court had begun empanelling a jury, the State may present aggravating factors that were listed in the Notice of Aggravating Factors before a Grand Jury for the purpose of obtaining a supplemental indictment alleging any such factors that would warrant a capital penalty phase. The State has the option of waiting until the verdict in the guilt phase to make that decision. And
3. In any case in which there are separate juries empanelled in the guilt phase and penalty phase of a capital case, the trial court must not read that portion of the indictment concerning the aggravating factors to the guilt-phase jury. In any case in which the same jury is empanelled in the guilt and penalty phases of a capital case, the trial court 23af without reference to the indictment 23af must advise the prospective jurors of the alleged aggravating factors during jury selection to permit voir dire on those factors.
ORDERED that the Clerk of the Court is directed to incorporate the foregoing clarifications in the opinion of the Court.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 6th day of February, 2004.
CHIEF JUSTICE PORITZ and JUSTICES, LONG, ZAZZALI, and ALBIN join in the Court's Order. JUSTICES VERNIERO and LaVECCHIA would deny the application, maintaining the position articulated in Justice Verniero's concurring and dissenting ...