In circumstances in which the aggravating factor of
prior murder is not alleged, a motion for separate guilt
phase and penalty phase juries should be decided by the
trial court at the conclusion of the guilt phase. That is
when the trial court can assess whether prejudicial
evidence has been presented to the jury. State v. Harris,
156 N.J. at 159-60.
F. Jury Charges at Guilt Phase
The Legislature did not create a “unified murder”
statute in New Jersey. Rather, knowing or purposeful
murder is not the moral equivalent of felony murder and
therefore, a trial court should not give the jury a murder
charge which combines knowing or purposeful homicide
and felony murder and which would allow a non-
unanimous felony murder, non-death verdict. State v.
Cooper I, 151 N.J. at 356-63.
When the State seeks a capital conviction based on
SBI murder, the jury must be instructed that to obtain a
conviction, the State must prove beyond a reasonable
doubt that the defendant caused the victim’s death or SBI
resulting in death, that the defendant did so purposely or
knowingly and that causing the death or SBI was within
the design or contemplation of the defendant. Serious
bodily injury is defined as bodily injury that creates a
substantial risk of death. A substantial risk of death exists
where it is highly probable that the injury will result in
death. State v. Cruz, 163 N.J. 403, 417-18 (2000). The
jury need not agree unanimously on whether defendant
committed the murder knowingly or purposefully since
those mental states are morally equivalent. Id. at 420;
State v. Bey III, 129 N.J. at 582.
The BYOC provision is a triggering mechanism
which makes a defendant death-eligible. Charging the
jury at the conclusion of the guilt phase, the trial court
should advise the jury that a failure to reach a unanimous
verdict on the BYOC component is a permissible final
verdict that will result in a non-capital murder
conviction. State v. Brown, 138 N.J. at 514.
When there is a jury question about whether
defendant is guilty of murder as a principal or as an
accomplice, the trial judge, after charging the jury on the
elements of murder, should instruct the jury first to
determine whether the defendant is guilty of knowing or
purposeful murder. If the jury unanimously finds
defendant guilty of murder, it should then deliberate on
whether defendant committed the murder BYOC or as
an accomplice. The jury should be told to consider these
alternatives simultaneously and that it need not be
unanimous on the BYOC determination, with a non-
unanimous finding resulting in a conviction of non-
capital murder. State v. Feaster, 156 N.J. at 42.When the State asserts as an aggravating factor that
the murder was committed in the course of a felony,
N.J.S.A. 2C:11-3c(4)(g), the jury must be given the
opportunity to consider felony murder in the guilt phase.
State v. Purnell, 126 N.J. 518, 523 (1992). That is so
even if felony murder is not included in the indictment.An improper instruction which requires the jury to
acquit defendant of knowing or purposeful homicide
before considering felony murder does not require
reversal if the evidence overwhelmingly demonstrates
that the jury could not have convicted defendant of felony
murder without also convicting defendant of knowing or
purposeful homicide. State v. Harvey II, 151 N.J. 117,
154 (1997).So long as defendant is on notice about the
aggravating factors alleged, the sentencing jury can find
the aggravating factor without unfairness even if not
found at the guilt phase. For example, the State need not
indict defendant for hindering apprehension as a
predicate for alleging the hindering apprehension
aggravating factor. State v. Purnell, 126 N.J. at 533.If the State chooses a theory regarding an aggravating
factor, it cannot change that theory during the penalty
phase. State v. Menter, 293 N.J.Super. at 348 (State must
be bound by its theory that defendant interrupted in
course of committing aggravated sexual assault; cannot
change theory during trial).The trial court should not instruct the jury at the
guilt phase about the potential sentences defendant
would face if convicted of non-capital homicide or other
serious crimes. Instead, the trial court should charge the
jury that the non-capital homicide charges are extremely
serious offenses and carry severe prison sentences without
informing the jury about the actual terms. The jury also
should be told not to concern itself with these potential
sentences but to determine only whether the State has
proven defendant’s guilt beyond a reasonable doubt.
Finally, the court should inform the jury that if there is
a penalty phase, then it will learn what potential
sentences defendant faces for each non-capital offense.
State v. Cooper I, 151 N.J. at 378-79.