mind is not offered as an aggravating factor but merely as
rebuttal to defendant’s claim. State v. Davis, 116 N.J.
341, 365 (1989).
While non-capital counts of an indictment may be
tried with the capital counts in one trial, particularly
where evidence of those other crimes would be admissible
under N.J.R.E. 404(b), evidence relating to the non-
capital murder count(s) cannot be considered as an
aggravating factor at the penalty phase and the jury
should be so advised. State v. Pitts, 116 N.J. at 599-603.
When the State uses a defendant’s confession to
establish aggravating factors, the trial court must
determine whether there is sufficient corroboration in
law to permit the sentencer to consider the confession. If
that hurdle is passed, the jury may consider the presence
or absence of corroborating proofs offered by the State in
determining the existence and weight to be accorded the
aggravating factor. When no extrinsic corroboration of
the aggravating factors exists, the jury must be instructed
that it must be satisfied beyond a reasonable doubt that
the confession itself is sufficient to establish aggravating
factors beyond a reasonable doubt. State v. DiFrisco I, 118
N.J. 253, 275 (1990). The State need not prove the
credibility of defendant’s statement beyond a reasonable
doubt. State v. Chew I, 150 N.J. 30, 82 (1997).
It does not violate due process or fundamental
fairness to allow the State to resubmit, at a second
sentencing hearing, aggravating factors not found
unanimously at the first sentencing hearing. The non-
unanimity of aggravating factors merely constitutes a
finding that the aggravating factor(s) does not exist at that
proceeding. State v. Koedatich II, 118 N.J. 513, 526
(1990). Resubmission of these aggravating factors at the
second sentencing hearing is consistent with the basic
premise that all relevant evidence on the individual
characteristics of the defendant and his offense should be
considered by the jury. Id. at 532.
B. Aggravating Factors
1. Prior Murder (N.J.S.A. 2C:11-3c(4)(a))
As originally enacted in 1982, N.J.S.A. 2C:11-
3c(4)(a) provided that it was an aggravating factor if the
defendant “has previously been convicted of murder.”
The Supreme Court interpreted the provision to require
that the prior conviction had been affirmed on direct
appeal. State v. Bey, 96 N.J. 625, 628 (1984). In
response, the Legislature amended N.J.S.A. 2C:11-
3c(4)(a) in 1985 to define a prior murder conviction as
final once sentence was imposed. This amended
aggravating factor can be applied to a murder which
occurred before the 1985 amendment. State v. Bey III,
129 N.J. at 618.A defendant may contest a prior murder conviction
resulting from a non vult plea entered at a time when it
precluded a death sentence and the record suggests that
the defendant did not commit the murder. State v.
Ramseur, 106 N.J. at 278. A final murder conviction that
took place after a defendant’s original capital trial but
before a resentencing hearing may be asserted as an
aggravating factor by the prosecutor. State v. Biegenwald
III, 110 N.J. at 529-30.The prior murder alleged by the State need not have
occurred in New Jersey. Rather, so long as the judgment
of conviction indicates that the defendant was convicted
of murder, then the conviction can be admitted. State v.
Simon, 161 N.J. at 459-60.Under N.J.S.A. 2C:11-3c(2)(f), with regard to the
prior murder, the State may present evidence about the
identity and age of the victim, the manner of death and
the victim’s relationship, if any, to the defendant. The
trial judge should advise the jury that evidence of the
prior murder is being admitted only to determine
whether the death penalty should be imposed for the
present murder and not the prior murder. State v. Erazo,
126 N.J. at 135-36.2. Grave Risk of Death (N.J.S.A. 2C:11-3c(4)(b))
Where, in a multiple murder situation, a victim is
already dead, a defendant cannot be charged with the
aggravating factor of grave risk of death. State v. Johnson,
120 N.J. 263, 301 (1990). Moreover, for this
aggravating factor to apply, the defendant must be aware
of the presence of others. State v. Clausell, 121 N.J. 298,
344 (1990).3. Murder Outrageously, Wantonly Vile (N.J.S.A. 2C:11-3c(4)(c))
To save this aggravating factor from vagueness, the
Supreme Court in Ramseur narrowed its scope. With
regard to torture and aggravated assault, the Court
defined 4c to apply to those murders in which a
defendant intended to and did cause extreme physical or
psychological pain or suffering to the victim prior to
death, with the severity measured by the intensity or
duration of pain or the combination of both. 106 N.J. at