sufficient evidence to make out a prima facie case of
capital murder against each defendant. State v. Simon,
161 N.J. 416, 440-41 (1999).
If a defendant does not actively or directly participate
in the infliction of injuries which resulted in the victim’s
death, then the defendant is not death eligible. State v.
Moore, 113 N.J. 239, 302 (1988). The BYOC
component does not require that a defendant’s conduct
be the exclusive cause of a victim’s death. The relevant
inquiry is whether the defendant actively or directly
participated in the homicidal act. State v. Morton I, 155
N.J. 383, 424 (1998); State v. Gerald, 113 N.J. at 96-97.
Because aggravating factors only enlarge available
sentencing options for certain defendants and are not
elements of the offense of murder, they need not be found
by the grand jury and set forth in the indictment. State
v. Martini I, 131 N.J. 176, 222-24 (1993).
The prosecutor must provide the defendant with the
list of aggravating factors alleged in a capital case as well
as discovery bearing on these factors. The list of
aggravating factors must be given at the arraignment
unless the time to do so is enlarged for good cause. R.
3:13-4(a). See N.J.S.A. 2C:11-3c(2)(e) (prosecutor must
provide notice of aggravating factors which the State
intends to prove at sentencing proceeding prior to
penalty phase or when it has knowledge of existence of
aggravating factors).
A defendant has the right to challenge, in a pretrial
proceeding, the aggravating factors filed by the State.
Because there is a presumption that the State has acted
properly in alleging the aggravating factor, to succeed in
vacating the factor, the defendant must prove that
evidence is clearly lacking to support the charge. State v.
McCrary, 97 N.J. 132, 142 (1984); State v. Menter, 293
N.J. Super. 330, 334 (Law Div. 1995). This proceeding
contemplates the trial judge’s performing a summary
review of the evidence in support of the aggravating factor
with the State able to rely on hearsay evidence. In rare
circumstances, the trial court may order testimony. State
v. McCrary, 97 N.J. at 144-46.
If an aggravating factor is stricken, the State may
reassert it if additional evidence arises. If such evidence
arises during trial and the aggravating factor is not
stricken, then the penalty phase takes place before a
death-qualified jury. If a guilty verdict has been returned
by a non-death qualified jury, then the court would have
to death qualify a second jury for the penalty phase, as this
would constitute “good cause” for a second jury as
required by N.J.S.A. 2C:11-3c(1). State v. McCrary, 97
N.J. at 144-45.If the State alleges the aggravating factors of N.J.S.A.
2C:11-3c(4)(f) (escape apprehension) or N.J.S.A.
2C:11-3c(4)(g) (felony murder), it should provide the
specific offenses on which the State intends to base the
factors. If a defendant is charged with more than one
murder, the State should set forth which factors apply to
each murder. State v. Brown, 138 N.J. at 551-52.B. Change of Venue Based on Pretrial Publicity .................................................................................
The standard to be applied by a trial court in
determining whether to change venue is whether a
change is necessary to overcome a realistic likelihood of
prejudice from pretrial publicity. State v. Marshall I, 123
N.J. 1, 76 (1991); State v. Biegenwald II, 106 N.J. 13, 33
(1987); State v. Williams I, 93 N.J. 39, 63 (1983). If the
trial atmosphere is so corrupted and poisoned by pretrial
publicity, then prejudice may be presumed. State v.
Biegenwald II, 106 N.J. at 33. If pretrial publicity is
extensive but less intrusive, the determinative issue is the
actual effect of the publicity on the impartiality of the
jury panel. Id. To determine whether a change of venue
is necessary, the trial court should consider the nature
and extent of the media coverage, the size of the
community, the nature and gravity of the offense and the
respective standings of the defendant and the victim(s) in
the community. State v. Koedatich I, 112 N.J. 225, 271
(1988), cert. denied, 489 U.S. 1017 (1989). Rarely is
prejudice presumed; it will occur only in cases where the
community and media reaction has been so hostile and
apparent that it is readily obvious that no voir dire could
assure an impartial jury. State v. Harris, 156 N.J. 122,
143 (1998); State v. Koedatich I, 112 N.J. at 269. Change
of venue motions should be granted liberally in capital
cases. Id. at 282.When there is a reasonable likelihood that the trial of
a capital case will be surrounded by presumptively
prejudicial media publicity, the trial court must transfer
the case to another county. State v. Harris, 156 N.J. at
133-34, 147-48.When a change of venue or foreign jury application
is granted, the court should consider the nature and
extent of pretrial publicity in the proposed venue; the
relative burdens on the respective courts in changing to
the proposed venue; the hardships to prospective jurors
in traveling from their home county to the site of trial and
the burden imposed upon the court in transporting the
jurors; the racial, ethnic, religious and other relevant