On appeal from the Superior Court, Appellate Division, whose opinion is reported at 380 N.J. Super. 1 (2005).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In Atkins v. Virginia,
The opinion of the court was delivered by: Chief Justice Poritz
This case presents an issue of first impression in New Jersey. 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 a mentally retarded person violates the prohibition against cruel and unusual punishment found in the Eighth Amendment. Atkins left to the states the procedures to be followed by the courts when a capital defendant raises a claim of mental retardation. This case requires that we establish such procedures in New Jersey.
Ten-year-old W.C. of Morristown was reported missing after he failed to return home from a visit to a carnival on May 20, 2001.*fn1 When his body was discovered two days later near the Whippany River, it appeared that he had been stabbed multiple times and that his head had been bludgeoned. There was also evidence that he had been sexually assaulted. After an investigation, the police focused on defendant, Porfirio Jimenez, whose DNA matched DNA found on W.C.'s underpants. Jimenez confessed to the crime following his arrest on May 28, 2001.
Defendant's capital trial for the murder and sexual assault of W.C. is now pending in Morris County. By pretrial motion, he has claimed that he is mentally retarded and thus ineligible for the death penalty pursuant to Atkins. On July 21, 2004, the trial court directed the parties to submit proposed procedures for adjudicating defendant's Atkins claim. Subsequently, in September 2004, defendant sought an order from the court establishing specific procedures by which to assess his claim of mental retardation. In support, defendant provided a report prepared by his forensic psychologist, Dr. Frank Dyer, who administered the Wechsler Adult Intelligence Scale-Revised Test (I.Q. test).*fn2 He reviewed extensive documentation related to defendant's background, and interviewed defendant. Based on an I.Q. test score of sixty-eight, and on his "significant deficits in a number of areas of adaptive behavior," Dr. Dyer opined that "to a reasonable degree of psychological certainty . . . the subject qualifies for a diagnosis of Mental Retardation, Mild" as defined in the Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association, Fourth Edition Text Revision (2000) (DSM-IV).*fn3 When defendant submitted to psychological testing by Dr. Frank Dattilio, the State's expert, he reported defendant's I.Q. test Full Scale Score as sixty-nine. After document review, additional testing and an interview, Dr. Dattilio concluded that defendant does not meet the criteria "within a reasonable degree of psychological probability, . . . both as per the I.Q. testing, as well as the review of material on adaptive functioning, to warrant a diagnosis of mental retardation."
On March 7, 2005, the trial court issued its decision setting forth the procedure for adjudicating an Atkins claim. The court determined that the DSM-IV definition of mental retardation, accepted by both parties, comported with this Court's decision in State v. Harris, 181 N.J. 391 (2004) (Harris III), cert. denied, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005),*fn4 and with the United States Supreme Court's decision in Atkins, supra. In respect of the proper procedures to be followed, the trial court considered whether the holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), that a defendant has the right to have all facts legally essential to the punishment proven to a jury under the Sixth Amendment, is applicable in an Atkins case. The court declined to reach the question, noting that this Court was then considering the application of Blakely to New Jersey's criminal code in State v. Natale, 184 N.J. 458 (Natale II), decided subsequently in 2005. Absent post-Atkins legislation, and without "the benefit of [this] Court's view," the trial court established a process for determining in a capital case whether defendant is mentally retarded.
Under the trial court's construct, the judge would hold a pretrial hearing in which the defendant would have the burden of proving his or her mental retardation by a preponderance of the evidence. Explaining that it is the defendant "who seeks to be treated differently from other individuals who are alleged to have committed similar acts," the court placed the initial burden on the defendant. If the defendant demonstrates that "it is more likely than not" he or she is mentally retarded, the trial would proceed as a capital case. "[I]f [the] defendant is found guilty . . . a sequential trial [w]ould be conducted by the same jury." Additional evidence could be presented at that proceeding, but "[t]he State would have the burden of disproving mental retardation unanimously beyond a reasonable doubt." If the State fails to meet its burden, the jury's finding on the Atkins claim would be considered the equivalent of a final verdict. If the State meets its burden, the defendant would be eligible for the death penalty and the penalty phase would continue, subject to the jury's findings on aggravating and mitigating circumstances. The defendant would be permitted to raise mental "retardation separately as mitigating evidence in the penalty phase."
If at the pretrial hearing, the defendant proves his or her mental retardation claim by clear and convincing evidence, the State would be foreclosed from seeking the death penalty. The trial court imposed this higher standard of proof to justify "depriving the State of an opportunity to present its position to the jury on the retardation issue." If the defendant was unable to meet even the preponderance standard, the issue of mental retardation would be available to the defendant only as a mitigating factor that could be presented to the jury at the penalty phase on a determination of the court that the evidence of the alleged condition has been adequately and sufficiently raised.
The trial court denied both parties' motions to stay the proceedings. On March 14, 2005, however, the Appellate Division granted a stay on an emergent basis, and, subsequently, granted leave to appeal the trial court's decision. This Court denied the State's motion for direct certification on April 13, 2005.
The Appellate Division, on August 17, 2005, held that the "New Jersey  constitution . . . embrace[s] the essential principles of Apprendi[ v. N.J., 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000)], Ring[ v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed. 2d 556 (2002)], Blakely and Booker[ v. U.S., 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005)], and . . . require[s] their application in th[e] Atkins context." Jimenez, 380 N.J. Super. 1, 26 (App. Div. 2005). Those principles require that facts necessary to the imposition of a sentence above the statutory maximum, other than a prior conviction, must be found by a jury beyond a reasonable doubt unless admitted by the defendant. Id. at 18-21. In other words, such facts are, under the cited cases, deemed to be the functional equivalent of an element of the offense.
The panel also found significant this Court's description "of New Jersey's capital murder statute as accretive in nature." Id. at 22 (discussing State v. Fortin, 178 N.J. 540, 634-36 (2004) (Fortin II)). Extrapolating from the Fortin II formulation -- that life imprisonment is the maximum penalty available under New Jersey's capital murder statute absent further findings by the jury of a capital trigger and aggravating factors -- the panel determined that New Jersey's capital sentencing scheme reinforces the conclusion derived from the Apprendi line of cases. The panel reasoned that when a defendant with a colorable claim of mental retardation is found not retarded, that finding is tantamount to a sentencing enhancer. Therefore, the State is required to prove beyond a reasonable doubt to a jury that the defendant is not retarded. Jimenez, supra, 380 N.J. Super. at 22-28. The Appellate Division observed that "placing the burden upon the State . . . is consistent with the State's treatment of diminished capacity[,]" which is considered by a jury "‛in relation to the State's burden to prove the essential elements of the crime.'"
Id. at 31 (quoting State v. Delibero, 149 N.J. 90, 98 (1997)).
In respect of the procedures for adjudicating the Atkins issue, the Appellate Division stated:
In summary, we reverse the order of the trial court as it relates to pre-trial procedures designed to resolve the issue of whether Jimenez is mentally retarded, finding that a judge can make that decision pre-trial only in those rare occasions in which reasonable minds cannot differ as to the existence of retardation. We affirm his order as it relates to proceedings after the guilt phase, finding on state constitutional and policy grounds that when the issue of retardation has been properly raised, the lack of retardation functions in a manner similar to a triggering factor to be determined by a jury in the second, post-guilt, phase of a capital prosecution, with the State bearing the burden of proof beyond a reasonable doubt. Even if the defendant is found by a jury not to be mentally retarded, evidence of his mental status can be introduced as a mitigating factor. [Jimenez, supra, 380 N.J. Super. at 34.]
In a concurring opinion, Judge Fisher suggested that the result reached by the majority was compelled not only under New Jersey law, but by the federal constitution. Id. at 45-46.
We granted the State's motion for leave to appeal on October 5, 2005. 185 N.J. 286 (2005). We also granted amicus curiae status to the Attorney General of New Jersey and the Association of Criminal Defense Lawyers of New Jersey.
Atkins, supra, is about the values that give meaning to the Eighth Amendment and the application of those values to the imposition of the death penalty in this country. 536 U.S. at 306-07, 122 S.Ct. at 2244, 153 L.Ed. 2d at 341. As Justice Stevens explains:
"The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." [Id. at 311-12, 122 S.Ct. at 2247, 153 L.Ed. at 344 (quoting Trop v. ...