cannot be unconstitutionally vague. Id. at 471, 113 S.Ct.
at 1541, 123 L.Ed.2d 188.
At the penalty phase, the jurors must be permitted to
receive all evidence which will allow them to make an
individualized determination regarding sentence based
on the character of the defendant and the circumstances
of the crime. Tuilaepa v. California, 512 U.S. 967, 972,
114 S.Ct. 2630, 2635, 129 L.Ed.2d 750 (1994). That
“requirement” is met when the jury is permitted to
consider any relevant mitigating evidence about the
defendant. Blystone v. Pennsylvania, 494 U.S. 299, 307,
110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990). A state
may not employ their rules of evidence or procedure to
prevent a defendant from presenting relevant mitigating
evidence. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct.
2150, 2151-52, 60 L.Ed.2d 738 (1979) (Georgia
evidence law which prevented defendant from using
statement of codefendant which exonerated defendant of
shooting the victim violated defendant’s constitutional
rights); State v. Bey III, 129 N.J. 557, 587 (1992) (trial
court violated Green by refusing to admit into evidence
psychiatric report prepared by State’s non-testifying
witness).
B. New Jersey Death Penalty Statute
The New Jersey death penalty statute, N.J.S.A.
2C:11-3c, which became effective August 6, 1982, has
been upheld repeatedly against federal and state
constitutional challenges by the New Jersey Supreme
Court. See, e.g., State v. Timmendequas, 161 N.J. 515,
639 (1999); State v. Feaster, 156 N.J. 1, 92-93 (1998);
State v. Loftin I, 146 N.J. 295, 333 (1996); State v. Harris,
141 N.J. 525, 574 (1995); State v. Brown, 138 N.J. 481
(1994); State v. Ramseur, 106 N.J. 123, 185 (1987). The
New Jersey Supreme Court has rejected claims that the
death penalty law violates international customary law,
State v. Nelson, 155 N.J. 487, 512 (1998), cert. denied,
525 U.S. 1114 (1999), because the United States has not
adopted any international human rights conventions
invalidating the death penalty.
In order to be death eligible, a defendant must have
committed the murder by his or her own conduct
(BYOC), or as an accomplice procured the murder by
payment or promise of payment, or as a “drug kingpin,”
N.J.S.A. 2C:35-3, commanded or solicited the murder in
furtherance of the drug trafficking conspiracy. N.J.S.A.
2C:11-3c.
In State v. Gerald, 113 N.J. 40 (1988), the Supreme
Court ruled on state constitutional grounds that it would
be cruel and unusual punishment, N.J. Const., Art. I, ¶
12, to subject a defendant convicted of committing
serious bodily injury which resulted in death (SBI
murder) to the death penalty. Id. at 69, 89. Rather, only
those who intended to kill were death eligible. Id. In
response to Gerald, Art. I, ¶ 12 was amended in 1992 by
the voters to permit an SBI murderer to be sentenced to
the death penalty. The Legislature then amended
N.J.S.A. 2C:11-3 to provide that the term “homicidal
act” included serious bodily injury murder. N.J.S.A.
2C:11-3i. That statutory amendment became law on
May 5, 1993. The Supreme Court has held that
December 3, 1992, is the operative date for making SBI
murderers eligible for the death penalty. State v. Cooper
I, 151 N.J. 326, 376 (1997), overruling State v. Yothers,
282 N.J. Super. 86 (App. Div. 1995).In addition, the statute requires the State to prove
one of the aggravating factors set forth beyond a
reasonable doubt but it does not place any burden upon
the defendant to prove mitigating evidence. N.J.S.A.
2C:11-3c(2)(a). But see, Walton v. Arizona, 497 U.S.
639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (it does
not violate the federal constitution to place a burden on
a defendant to establish mitigation). To impose the
death penalty, the jury must find beyond a reasonable
doubt that the aggravating factors outweigh any
mitigating factors found.In New Jersey, the death penalty cannot be imposed
upon a juvenile who murders. Rather, juveniles waived
to adult court and convicted of murder must be
sentenced to a term of years. State v. Bey I, 112 N.J. 45,
51 (1988); N.J.S.A. 2C:11-3g.II. GUILT PHASE
A. Charging a Capital Offense
A crime punishable by death must be prosecuted by
indictment. R. 3:7-2. An indictment for murder must
specify whether it alleges purposeful or knowing murder
or felony murder as well as whether the defendant
committed the murder by his or her own conduct,
procured the murder by payment or promise of payment,
or as a drug kingpin commanded or solicited the murder
in furtherance of a drug conspiracy. R. 3:7-3b.The State can indict two defendants for capital
murder and require the jury to determine who
committed the murder BYOC so long as there is