- Defendant’s state of mind must be purposeful, i.e.,
wanting the suffering to occur. Id.
With regard to depravity of mind, the Court defined
it to reach those murders without purpose or meaning. It
isolates conduct that causes the greatest abhorrence and
terror in society, a killer who kills because he likes it. Id.
at 209. Multiple stab wounds might in certain cases
indicate an intent to inflict pain in addition to causing
death. State v. Hunt, 115 N.J. at 389.
Where the State does not concede that defendant had
any motive other than sheer pleasure derived from
stalking and executing his prey, then depravity of mind
is sufficiently alleged. State v. Coyle, 119 N.J. at 235.
However, the State cannot alter its theory of 4c (i.e., from
torture to depravity of mind) when it had all the evidence
at the time of trial and consciously chose one alternative
over another. Id. at 236-38. While a prior incident
involving violence or abuse against the victim may
establish intent to kill or SBI, that is insufficient to show
the intent to cause extreme physical or mental suffering
beyond death needed to prove the aggravating factor.
State v. Matulewicz, 115 N.J. 191, 199 (1989).
Reference to the means used to commit the murder
is insufficient to prove this aggravating factor. State v.
Perry, 124 N.J. 128, 173 (1991). Where there is a motive
for the murder, depravity of mind should not be
submitted to the jury. Id. at 175. A defendant’s intent
to cause a third party who was not a victim of the crime
psychological suffering falls within the scope of the 4c
aggravating factor. State v. Menter, 293 N.J.Super. at 361-
67.
4. Murder For Pecuniary Motives (N.J.S.A. 2C:11-3c(4)(d) and (e)).
Aggravating factor 4(d), that the murder was
committed as consideration for the receipt or in
expectation of the receipt of anything of pecuniary value,
is not limited to murder committed by hired killers.
Rather, a defendant who murders another for future gain,
e.g., insurance proceeds, falls within the statute’s
provisions. State v. Chew I, 150 N.J. at 55. However, the
pecuniary gain aggravating factor is limited to those
circumstances in which the killing is the “essential
prerequisite” to the receipt of the gain. Id. at 56.
Even though procuring a murder makes a defendant
death eligible and also constitutes an aggravating factor,
that does not create a constitutional problem. Lowenfeld
v. Phelps, 484 U.S. at 244-46, 108 S.Ct. at 554-55, 98
L.Ed.2d 568; State v. Marshall I, 123 N.J. at 138-39.
However, the trial court should advise juries that the guilt
and sentencing phases are separate and that whenever the
State relies upon guilt phase evidence to prove an
aggravating factor, the jury must deliberate anew on the
issue. Id. at 139.5. Escape Detection (N.J.S.A. 2C:11-3c(4)(f ))
This aggravating factor refers to a defendant
committing a murder to escape detection, apprehension,
trial, punishment or confinement for “another offense.”
The other offense need not have been committed before
the murder for which defendant is presently on trial.
Rather, the aggravating factor seeks to address the
silencing of potential witnesses and could be directed at
the underlying crime being committed. State v.
Hightower I, 120 N.J. 378, 420-21 (1990).The State must present evidence from which a jury
could infer that at least one of the purposes motivating
the killing was the defendant’s desire to avoid subsequent
detection and apprehension. Id. at 422; State v. Loftin I,
146 N.J. at 376-78; State v. Martini I, 131 N.J. 282. The
evidence to support the aggravating factor may be wholly
circumstantial. Id. at 282-83. However, evidence of
actions taken to conceal the murder cannot be used to
prove this aggravating factor. State v. Hightower I, 120
N.J. at 422.6. Murder in Course of Felony (N.J.S.A. 2C:11-3c(4)(g))
The felony murder aggravating factor applies to a
defendant who commits a murder in the course of,
attempt to or flight from a murder, robbery, sexual
assault, arson, burglary or kidnapping or the crime of
contempt in violation of N.J.S.A. 2C:29-9b. With regard
to multiple murders, the statute does not rely on the
temporal sequence of murders for its applicability. It
applies to murders committed during, before or after the
commission of the felony, so the time sequence of the
murders is irrelevant. State v. Moore, 122 N.J. at 469-71.This aggravating factor applies in situations where
the intent to kill was formed before, during or after the
commission of the felony, State v. Brown, 138 N.J. at
550-51, and is not limited to commission of a felony
against the eventual murder victim. State v. Harris, 141
N.J. at 569-70. When the State asserts that several
felonies were committed, the jury should be instructed
that it must be in unanimous agreement regarding the
existence of the specific underlying felony. Id.; State v.