State v. McCrary

O’HERN, Justice,

dissenting.

I disagree that we should mandate pretrial review of the validity of the aggravating factors furnished under Rule 3:13-4(a) prior to a capital trial. I do so because the sentencing structure of N.J.S.A. 2C:ll-3 does not call for it and because of the potential long-term effect of the practice on our ability to afford the proportionality review now mandated by N.J.S.A. 2C:ll-3(e).

Until the Supreme Court’s decision in Furman v. Georgia in 1972, the capital sentencing procedures in most states delegated to judges and juries plenary authority to decide when a death sentence should be imposed. The sentencer was given “practically untrammeled discretion to let an accused live or insist that he die.” Furman v. Georgia, 408 US. 238, 248, 92 S.Ct. 2726, 2731, 33 L.Ed.2d 346, 355 (1972) (Douglas, J., concurring). In New Jersey, we believed that such standards were not clearly definable. State v. Johnson, 34 N.J. 212, 230 (1961).

In Furman the Court held that the system of capital punishment then in existence in this country was incompatible with the eighth and fourteenth amendments. The teaching of Fur-man was that a state may not leave the decision whether a defendant lives or dies to the unfettered discretion of the jury, since such a scheme inevitably results in death sentences that are “wantonly and * * * freakishly imposed,” and “are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” 408 U.S. at 309-10, 92 S.Ct. at 2762-63, 33 L.Ed.2d at 390 (Stewart, J., concurring).

Four years after Furman, the Court upheld the capital sentencing statutes of Texas, Florida, and Georgia, concluding that those statutes contained safeguards that promised to eliminate the constitutional defects found in Furman. Jurek v.

Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed. 2d 859 (1976). The Court’s conclusion was based on the premise that the statutes ensured that sentencers would be “given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.” Gregg v. Georgia, supra, 428 U.S. at 192, 96 S.Ct. at 2934, 49 L.Ed.2d at 885 (opinion of Stewart, Powell, and Stevens, JJ.). Georgia’s scheme included two features that Justice Stewart described in his general discussion of sentencing procedures that would guide and channel the exercise of discretion. Georgia had a bifurcated procedure, id. at 190-92, 96 S.Ct. at 2933-34, 49 L.Ed.2d at 884-85, and its statute also required “the further safeguard of meaningful appellate review” of every death sentence. Id. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at 886-87.

In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed. 2d 235 (1983), the Court explained that no specific set of procedures has been set down to “satisfy the concerns of Furman.” Id. at-, 103 S.Ct. at 2741, 77 L.Ed.2d at 248. What it found significant was that the “Georgia scheme provide^] for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage.” ¹ Id. at-, 103 S.Ct. at 2744, 77 L.Ed. at 251.

Without prejudging issues not yet before us, I believe that the Legislature has “attempted to provide standards for a constitutional death penalty that would serve both goals of measured, consistent application and fairness to the accused.” Eddings v. Oklahoma, 455 U.S. 104, 111, 102 S.Ct. 869, 874, 71 L.Ed.2d 1, 8 (1982). The sentencing scheme provides a bifurcated proceeding, instruction on the factors to be considered, and appellate review of each death sentence.² These were features mentioned in the opinion of Justices Stewart, Powell, and Stevens in Gregg v. Georgia, supra, 428 U.S. at 190-95, 96 S. Ct. at 2933-36, 49 L.Ed.2d at 884-87.

In the terms outlined in Zant, supra, — U.S. at-, 103 S.Ct. at 2744, 77 L.Ed.2d at 251:

1. The “categorized narrowing” is provided by limiting the capital punishment to murders specified in N.J.S.A. 2C:ll-3 and by requiring the presence of at least one of the aggravating factors set forth in 2C:ll-3(c)(4); and

2. The “individualized determination” is provided by requiring that every person convicted in the categories of murder as defined in 2C:ll-3 should be sentenced by the jury.

The language of the statute is stark in its simplicity. Every person so convicted shall be sentenced by a jury in accordance with the defined standards of aggravating and mitigating factors,³

The statute itself makes no provision that the aggravating factors be furnished prior to the guilt phase of the trial. N.J.S.A. 2C:ll-3(c)(2) provides: “Prior to the commencement of the sentencing proceeding, or at such time as he has knowledge of the existence of an aggravating factor, the prosecuting attorney shall give notice to the defendant of the aggravating factors which he intends to prove in the proceeding.” It is our Rule 3:13-4(a) that requires the prosecutor to transmit the aggravating factors and supporting discovery at the time of arraignment. While the majority’s view seems to be fair, we must ask ourselves whether it will best serve to “minimize the risk of wholly arbitrary and capricious action.” Gregg, supra, 428 U.S. at 189, 96 S.Ct. at 2932, 49 L.Ed.2d at 883 (opinion of Stewart, Powell, and Stevens, JJ.). I have concluded that pretrial screening does not best serve that purpose.

I reach that conclusion because I know of no way in which we can factor the result of such pretrial decisions into our overall duty to review the proportionality of capital sentences. I recognize that the Supreme Court has recently held that comparative proportionality review by an appellate court is not constitutionally required in every death penalty case. Pulley v. Harris, — U.S. -, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). I also realize that pending legislation, S. 1479, 201st Leg. (1984), seeks to do away with the statutory proportionality review. Still we must deal with the statute as we find it.

Experience under our state’s prior death penalty law suggested that judges had no special ability to measure that common conscience of society that must be invoked in these cases. Chief Justice Weintraub sharply distinguished between the power of court and prosecutor in this regard:

[W]e have never held a trial court may take the penalty issue from the jury on the thesis that the evidence would not support a death sentence * * *. ******** Because the death penalty involves a moral judgment upon a consideration of the evidence, free of legalisms and unbridled with respect to the values which may be brought to bear, it may readily be said that the judgment of 12 laymen in any given case is as good as the judgment of an equal number of men schooled in the law. [State v. Conyers, 58 N.J. 123, 147-48 (1971) (Court may impose life sentence after appeal when prosecutor recommends it rather than retrial).]

Granted that jurors’ discretion is no longer unbridled, it remains true that the judgment involved does not lend itself to better analysis by judge than jury.

Our Legislature has sought to create a death penalty law that comports with federal constitutional precedent. It has narrowed discretion. It has provided that every person convicted of the categories of murder defined in 2C:ll-3(a) shall be sentenced by juries and juries alone. The prosecutor has been vested with broad discretionary powers to be exercised in the conscientious discharge of the manifold responsibilities of the office. State v. Laws, 51 N.J. 494, 510, cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968). Considerations of separation-of-powers are invoked when a prosecutor decides whether to seek the death penalty. Cf. State v. Leonardis, 73 N.J. 360 (1977) (decision of prosecutor to admit defendant to pretrial intervention program has separation-of-powers implications).⁴

Within our sphere, I believe that the fairest and best course is to hew closely to the pattern of the act. The act provides that all persons convicted of knowing or purposeful 2C:ll-3 murders shall be sentenced by the jury using the procedure set forth in subsection (c) of the statute. Moreover, subsection (d) of the statute says “[t]he sentencing proceeding set forth in subsection c. of this section shall not be waived by the prosecuting attorney.” The act provides that the prosecutor shall furnish the defendant with a statement of the aggravating factors that are to be proven. The act does not provide that the cases shall be screened before the jury imposes sentence. I respectfully do not believe that such screening will make the imposition of capital punishment less arbitrary. I believe that it will, in the long run, make more difficult our duty of proportionality review under N.J.S.A. 2C:ll-3(e).

1 The categorical narrowing must be based on standards that will withstand a claim of vagueness. Cf. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion) (state definition of aggravating circumstance, "outrageous or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim," held invalid because as applied it was so vague that it would hot distinguish one murder from another). But that is not the challenge before us. The challenge here goes to the proofs that underlay the factors. Further, what is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime. See Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 873-74, 71 L.Ed.2d 1, 8-9 (1982); Lockett v. Ohio, 438 U.S. 586, 601-05, 98 S.Ct. 2954, 2963-65, 57 L.Ed.2d 973, 987-90 (1978) (plurality opinion); Roberts v. Louisiana, 431 U.S. 633, 636-37, 97 S.Ct. 1993, 1995-96, 52 L.Ed.2d 637, 641-42 (1977) (per curiam); Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d 944, 960-61 (1976) (plurality opinion); Proffitt v. Florida, 428 U.S. 242, 251-52, 96 S.Ct. 2960, 2966-67, 49 L.Ed.2d 913, 922 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Gregg v. Georgia, 428 U.S. 153, 197-98, 96 S.Ct. 2909, 2936-37, 49 L.Ed.2d 859, 888 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

2 Our Constitution, N.J. Const. (1947), art. VI, § 5, para. 1(c), also provides for Supreme Court review in capital cases.

3 Throughout the opinion I have referred to juries as imposing the death sentence. However, when a defendant pleads guilty or is tried without a jury, the death phase may be conducted by the judge sitting alone if the defendant and the prosecutor so agree. N.J.S.A. 2C:ll-3(c)(l); R. 1:8 — 1(a).

4 Even on the score of prosecutorial discretion to waive the death penalty, Justice Francis came to believe that the Court’s administrative directive on the subject, entitled In Re Waiver of Death Penalty, 45 N.J. 501 (1965), was wrong:

I joined in that directive. But the more exhaustive study of the problem made in this case convinces me that we were wrong and that the directive was an encroachment on the independent power of the Legislature. Under the circumstances, in my judgment it should be withdrawn and the rule of State v. Pontery [19 N.J. 457 (1955) ] revived. A sound view on the subject was expressed by the Washington Supreme Court in White v. Rhay [64 Wash.2d 15, 390 P.2d 535 (1964) ], supra, 390 P.2d, at p. 540:

"Petitioner is mistaken when he assumes that infliction of the death penalty in trials involving capital cases is in any way discretionary with the prosecuting attorney, or his deputies, conducting the trial for the state. Such discretion vests neither in counsel nor the court, but solely in the jury. The jury and the jury alone makes this finding.” [State v. Laws, supra, 51 N.J. at 553 (Francis, J., dissenting).]