III. PENALTY PHASE
A. General Principles
At the penalty phase, the State has the right to open
and close because it bears the burden of proving that the
aggravating factors outweigh the mitigating factors
beyond a reasonable doubt to obtain a death sentence.
State v. Ramseur, 106 N.J. at 318 n.81.
The State is limited to proving the statutory
aggravating factors. It cannot refer to any non-statutory
aggravating factors as supporting the death penalty. Cf.
State v. Pitts, 116 N.J. 580, 603 (1989). Moreover, in
summation, the prosecutor is limited to arguing the
existence or not of the aggravating and mitigating factors.
State v. Coyle, 119 N.J. 194, 231 (1990).
While the jury must be unanimous in finding an
aggravating factor, the constitution precludes requiring
unanimity with regard to mitigating factors. Mills v.
Maryland, 486 U.S. 367, 375, 108 S.Ct. 1860, 1866,
100 L.Ed.2d 384 (1988); State v. Bey II, 112 N.J. at 159.
The death penalty statute allows a defendant to make
a motion to have a trial judge conduct the penalty
proceeding. The defendant, however, must obtain the
consent of the prosecutor for such an action. N.J.S.A.
2C:11-3c(1). This procedure has been upheld against
constitutional attack by the Supreme Court which has
made clear that the only constitutional right which
cannot be abridged is the right to trial by jury. State v.
Biegenwald II, 106 N.J. at 48.
If a defendant faces a resentencing (i.e., a second
penalty phase proceeding), there must be a new jury
selected. Where witnesses are available, the State must
present their testimony. A defendant has the option of
using either transcripts or live witnesses. If the State
presents rebuttal evidence, it may employ either live
witnesses or transcripts. Id. at 70-71.
At this resentencing proceeding, the only evidence
that can be admitted is that relevant to the penalty phase.
Id. at 71. Both the State and defense are free to present
different witnesses than those presented at the original
hearing and the jury is free to reach different conclusions
on the aggravating and mitigating factors. Id. at 72.
The State will not be foreclosed from introducing
new aggravating factors at a resentencing in those rare
occasions in which to do so would not offend due process
or fundamental fairness. That requires the State to prove
to the trial court that it has discovered new evidence to
establish an aggravating factor that was unavailable and
undiscoverable by diligent efforts. State v. Biegenwald III,
110 N.J. 521, 541-42 (1988). The State cannot
introduce new aggravating factors under the guise of
rebutting mitigating factors. Id. at 543.The constitution does not require a specific and
detailed instruction on aggravating or mitigating factors
so long as there is no reasonable possibility that the jury
misunderstands its role in a capital sentencing
proceeding. State v. Bey II, 112 N.J. at 169.The fact that the same evidence supports two
aggravating factors does not necessarily mean that
defendant will be prejudiced because the jury finds two
aggravating factors instead of one. Any potential
prejudice can be avoided by the trial court charging the
jury to be aware that the same facts were being used for
more that one aggravating factor. This prevents giving
undue weight to the number of factors. State v. Bey II, 112
N.J. at 175-76.The guilt and penalty phases of a capital trial are
distinct and if a juror is replaced at the penalty phase, the
guilt phase guilty verdict is not vacated. Rather, the
replacement juror deliberates solely on the issue of
punishment. State v. Moore, 113 N.J. at 305-06.Under the inability-to-continue standard of R. 1:8-
2(d). the only justification for excusing a deliberating
juror is for circumstances “exclusively personal” to the
juror. If the misconduct which leads the trial court to
excuse the juror is not based on personal circumstances,
but rather, is related to the case and to the juror’s
interactions with the other jurors, the trial judge cannot
remove the offending juror. State v. Hightower II, 146
N.J. 239, 254-56 (1996).When “serious juror misconduct occurs” in a death
penalty trial, “prejudice will be presumed.” Id. at 265.
In Hightower II, the Court determined that the excused
juror’s disclosure to the other jurors that the victim had
three children, information which the parties had agreed
to keep from the jury, had the clear capacity to prejudice
defendant and, as a result, the trial court abused its
discretion in denying defendant’s request for a mistrial.
146 N.J. at 265-66.If the defendant places his or her relationship to the
victim in issue at the penalty phase, the State may present
evidence that disputes defendant’s version so long as the
jury is instructed that evidence of the victim’s state of