On appeal from Superior Court of New Jersey, Law Division, Morris County, 04-03-00318-I.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fall, Payne and C.S. Fisher.
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed. 2d 335 (2002) the United States Supreme Court held that the execution of mentally retarded defendants convicted of capital murder constituted excessive punishment that violated the Eighth Amendment to the United States Constitution.
However, it left to the states the task of developing the procedures to be utilized in determining who should thus be exempted. Although most states have established these procedures by statute or judicial decision, New Jersey has not.*fn1
Therefore, the issue was novel in this State when it was raised by motion on behalf of defendant Porfirio Jimenez prior to his trial for capital murder.*fn2 In these interlocutory appeals, which we hear back-to-back by leave granted, both the State and Jimenez challenge the procedures established in the trial court for determining the applicability of Atkins to a capital defendant prior to trial and after the guilt phase. We affirm the latter, but reverse the former.
In Atkins, a six-member majority of the Supreme Court, abrogating the Court's prior decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed. 2d 256 (1989) in light of evolving standards of decency as reflected in legislative enactments*fn3 and other sources, found the execution of mentally retarded defendants convicted of capital murder to be excessive punishment, because that punishment was not proportional to the defendant's personal responsibility and moral guilt, and thus was violative of the Eighth Amendment's prohibition of cruel and unusual punishments. The Court observed: "mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial." 536 U.S. at 318, 122 S.Ct. at 2250, 153 L.Ed. 2d at 348. However, it recognized that because of their impairments, by definition the mentally retarded have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. [Id. at 318, 122 S.Ct. at 2250-51, 153 L.Ed. 2d at 348 (footnotes omitted).]
As the result of these intellectual deficiencies, the Court found two bases for the categorical exclusion of the mentally retarded from capital punishment. First, the Court found that a serious question existed as to whether either deterrence or retribution, the commonly recognized justifications for capital punishment, applied to the mentally retarded. Id. at 318-19, 122 S.Ct. at 2251, 153 L.Ed. 2d at 349. Retribution, the Court found, was a concept that required proportionality between the severity of the punishment and the culpability of the offender--a culpability that was recognized to be lessened in the retarded. "If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution." Id. at 319, 122 S.Ct. at 2251, 153 L.Ed. 2d at 349. The Court similarly found that deterrence did not present a compelling rationale for the imposition of the death penalty upon the mentally retarded because "the same cognitive and behavioral impairments that make these defendants less morally culpable--for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses--. . . also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information."*fn4 Id. at 320, 122 S.Ct. at 2251, 153 L.Ed. 2d at 349.
Additionally, the Supreme Court observed that "some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards." Id. at 317, 122 S.Ct. at 2250, 153 L.Ed. 2d at 348. As a consequence, a risk exists that the death penalty will be imposed despite factors that may call for a lesser penalty. Id. at 320, 122 S.Ct. at 2251, 153 L.Ed. 2d at 350 (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed. 2d 973, 990 (1978)). Not only is there a possibility of false confessions, but also mentally retarded defendants may possess a lesser ability "to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes." Id. at 320-21, 122 S.Ct. at 2251-52, 153 L.Ed. 2d at 350.
Further, the Court found, reliance on mental retardation as a mitigating factor, a device frequently employed in capital sentencing, may be counterproductive, since jurors may construe the existence of the condition, instead, as enhancing the likelihood of future dangerousness, a commonly-employed aggravating factor. Id. at 321, 122 S.Ct. at 2252, 153 L.Ed. 2d at 350. Mentally retarded defendants in the aggregate face a special risk of wrongful execution. Ibid.
The Court's decision in Atkins forms a part of a trilogy, consisting also of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed. 2d 335 (1986) (holding that the Eighth Amendment prohibits states from inflicting the death penalty upon a defendant who is insane) and Roper v. Simmons, ___ U.S. ___, 125 S.Ct. 1183, 161 L.Ed. 2d 1 (2005) (holding that execution of a defendant who commits a capital crime while under the age of eighteen is prohibited by the Eighth Amendment). In both Ford and Atkins, the Court left "to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." Ford, supra, 477 U.S. at 416-17, 106 S.Ct. at 2605, 91 L.Ed. 2d at 351; Atkins, supra, 536 U.S. at 317, 122 S.Ct. at 2250, 153 L.Ed. 2d at 348.
Although the Court's procedural invitation is seemingly broad, we recognize it to be limited not only by the strictures of the United States Constitution, but also those of the Constitution of New Jersey. See id., art. I, ¶ 9.
We are also very mindful of the fact that what we are concerned with here is the implementation of the death penalty, not some lesser, reversible punishment. Atkins has established that even in cases in which capital punishment would otherwise appear warranted, that sanction cannot constitutionally be applied to the retarded. As stated in non-categorical terms in Roper:
The death penalty may not be imposed on certain classes of offenders, such as juveniles under , the insane, and the mentally retarded, no matter how heinous the crime. These rules vindicate the underlying principle that the death penalty is reserved for a narrow category of crimes and offenders. [___ U.S. at ___, 125 S.Ct. at 1195, 161 L.Ed. 2d at 21 (citations omitted).]
This is so, in the case of retardation, because we as a civilized society can no longer justify the infliction of so irrevocable a penalty upon one whose culpability is lessened by mental infirmity. Lingering concerns regarding the reliability and fairness of capital proceedings involving the mentally retarded reinforce that view. In Ford, the Court observed that in capital proceedings, it "has demanded that factfinding procedures aspire to a heightened standard of reliability." 477 U.S. at 411, 106 S.Ct. at 2602, 91 L.Ed. 2d at 347. And the Court has held if, as here, the Constitution renders the fact of execution contingent upon the establishment of a further fact -- the mental status of the defendant--"then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being." Id. at 411, 106 S.Ct. at 2602-03, 91 L.Ed. 2d at 347-48. See also State v. Harris, 181 N.J. 391, 525 (2004) (Harris III) (quoting Ford), cert. denied, ___ U.S. ___, 125 S.Ct. 2973, ___ L.Ed. 2d ___ (2005). We thus view a maximal reduction of the risk of wrongful execution to constitute both a moral and a constitutional imperative. That view underlies our opinion in this case.
In order to place the present issues in context, we briefly summarize the procedures employed in New Jersey in a capital prosecution. As described by the Court in State v. Fortin, 178 N.J. 540 (2004) (Fortin II):
Under New Jersey's death penalty statute, N.J.S.A. 2C:11-3c, the State must prove specific facts in each step of a three-tiered process before a defendant may be sentenced to death. First, the State must prove beyond a reasonable doubt that the defendant purposefully or knowingly caused death or serious bodily injury resulting in death. N.J.S.A. 2C:11-3a(1), (2). Second, the State must prove beyond a reasonable doubt one of the capital "triggers" in order to advance the defendant to the penalty-phase trial.*fn5
If the jury is unable to agree that one of the triggers has been proven beyond a reasonable doubt, the defendant is sentenced to a term of imprisonment of at least thirty years without parole eligibility pursuant to N.J.S.A. 2C:11-3b(1) or to life imprisonment with no possibility of parole pursuant to N.J.S.A. 2C:11-3b(2) or (3). If the jury unanimously finds a capital trigger to exist then,
[t]hird, in the penalty-phase trial, the State must prove beyond a reasonable doubt the existence of any alleged statutory aggravating factors. N.J.S.A. 2C:11-3c(2)(a). If the jury finds one or more aggravating factors, it must then determine whether those outweigh all of the mitigating factors beyond a reasonable doubt. N.J.S.A. 2C:11-3c(3)(a). [Fortin II, supra, 178 N.J. at 635.]
The defendant has the burden of producing evidence of the existence of any mitigating factors set forth in N.J.S.A. 2C:11-3c(5) "but shall not have a burden with regard to the establishment of a mitigating factor." N.J.S.A. 2C:11-3c(2)(a). Prior to Atkins, mental retardation could be considered solely as a mitigating factor. N.J.S.A. 2C:11-3c(5)(d) or (h).
Pursuant to N.J.S.A. 2C:11-3c(3):
(a) If the jury or the court finds that any aggravating factors exist and that all of the aggravating factors outweigh beyond a reasonable doubt all of the mitigating factors, the court shall sentence the defendant to death.
(b) If the jury or the court finds that no aggravating factors exist, or that all of the aggravating factors which exist do not outweigh all of the mitigating factors, the court shall sentence the defendant pursuant to subsection b.
(c) If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b.
Subsection b(3)(a) and (b) specify that a person convicted of murder of a child under the age of fourteen years while in the course of the commission of sexual assault in violation of N.J.S.A. 2C:14-2 or criminal sexual contact in violation of N.J.S.A. 2C:14-3 who is not sentenced to death shall be sentenced to a term of life imprisonment without eligibility for parole.
Thus, in summary, a finding by the jury of purposeful or knowing murder only exposes a defendant to a sentence between thirty years and life imprisonment. "Without any other finding by the jury, life imprisonment is the maximum allowable sentence under the capital-murder statute." N.J.S.A. 2C:11-3b. "The jury must find a capital trigger and an aggravating factor to elevate the punishment from a term of imprisonment to death." Fortin II, supra, 178 N.J. at 636 (emphasis supplied).
On May 22, 2001, the body of W. C., a ten-year-old boy, was found near the Whippany River in Morristown after a two-day search. When discovered, the child's body showed evidence of multiple stab wounds. It is alleged that his head had been bludgeoned with a garden tool, that he had been sexually assaulted, and that evidence of semen was found in his underpants.
Investigation, described in fuller detail by the Supreme Court in State v. Jimenez, 175 N.J. 475 (2003), led the police to defendant, who gave a lengthy confession to the police following his arrest on May 28, 2001 that contained details of the murder. In September 2001, defendant was charged by a Morris County Grand Jury with murder in violation of N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-3a(2) (count one), two counts of felony murder in violation of N.J.S.A. 2C:11-3a(3) (counts two and four), kidnapping in violation of N.J.S.A. 2C:13-1b (count three), attempted aggravated sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(1) (count five), attempted aggravated sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(6) (count six), and third-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4d (count seven.) The State notified Jimenez of its intent to seek the death penalty by filing a notice of aggravating factors pursuant to N.J.S.A. 2C:11-3c(2) and R. 3:13-4(a). However, following the Supreme Court's decision in Fortin II, 178 N.J. at 632-650, finding that aggravating factors are the functional equivalent of elements of capital murder and thus must be submitted to a grand jury and returned in an indictment, Jimenez's case was re-presented to a grand jury together with allegedly applicable aggravating factors.*fn6 A superseding indictment amending count one to include the aggravating factors found by the grand jury and otherwise containing the same counts was handed down.
Prior to trial, counsel for Jimenez advised the court and the State that they intended to pursue an Atkins claim on Jimenez's behalf and, in that connection, they submitted the September 17, 2004 report of Frank J. Dyer, Ph.D., an expert in forensic psychology. The trial judge then requested that both parties propose procedures to permit an adjudication of the mental retardation issue. On September 23, 2004, the defense filed a motion seeking an order that would preclude the State from seeking the death penalty and would establish specific procedures to assess Jimenez's retardation claim. The State then successfully sought to compel a mental evaluation of Jimenez, which was conducted by forensic psychologist Frank Dattilio, Ph.D.*fn7 Dr. Dattilio issued reports dated December 24, 2004 and January 25, 2005.
Both the State and the defense have agreed that the appropriate definition for mental retardation is that promulgated by the American Psychiatric Association (APA) and contained in its Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 2000), which requires evidence of significantly subaverage general intellectual functioning (Criterion A), accompanied by significant limitations in adaptive functioning in at least two enumerated skill areas (Criterion B) and onset before the age of eighteen years (Criterion C). Significantly subaverage intellectual function is defined as an IQ of 70 or below, as measured by one or more of the standardized individually administered intelligence tests. Because a measurement error of five points in assessing IQ is recognized, a score of 70 in actuality may represent a range of 65 to 75. Mild mental retardation is generally associated with IQ levels in the range of 50-55 to 70; moderate retardation with IQ levels of 35-40 to 50-55; severe retardation with IQ levels of 20-25 to 35-40; and profound mental retardation with IQ levels below 20 or 25.
In addition to evidence of IQ levels within the specified range, a diagnosis of mental retardation depends on a determination that the person has significant limitations in adaptive function in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. In the context of a criminal prosecution, the fact that the condition must arise before the person is eighteen years of age provides important protections against specious claims premised on symptoms manifesting at or around the time of that prosecution.
Because a mentally retarded defendant must nonetheless possess the mental competency to stand trial, we assume that the vast majority of defendants to whom Atkins may apply will be found to suffer from mild mental retardation. The DSM-IV describes mild mental retardation in the following terms:
Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of "educable." This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings.
The defendant in Atkins was alleged to be mildly mentally retarded, with an IQ of 59. Atkins, supra, 536 U.S. at 309, 122 S.Ct. at 2245, 153 L.Ed. 2d at 342. His mental age was described by dissenting members of the Supreme Court of Virginia as between nine and 12. Id. at 310, 122 S.Ct. at 2246, 153 L.Ed. 2d at 343 (citing Atkins v. ...