cdTOCtest

Brown, 138 N.J. at 553. However, counsel may request
separate verdicts on the existence of the underlying
felony. State v. Harris, 141 N.J. at 564.

While claim of right is not a defense to robbery and
should not be charged at the guilt phase, id. at 557-59,
it may be asserted at the penalty phase as both a
mitigating factor (catch-all) and to reduce the weight the
jury placed on the felony murder aggravating factor. State
v. Mejia, 141 N.J. 475, 500 (1995).

C. Mitigating Factors

1. Extreme Mental or Emotional Disturbance (N.J.S.A. 2C:11-3c(5)(a))

The fact that the mitigating factor speaks in terms of
“extreme” mental or emotional disturbance does not
constitutionally circumscribe the jury’s evaluation of this
mitigating factor, State v. Martini I, 131 N.J. at 301-08,
particularly since the jury instruction on N.J.S.A. 2C:11-
3c(5)(h) (catch-all) ensures that the jury considers all
mitigating evidence. Id. 305-07 The extreme mental or
emotional disturbance must have influenced defendant
to commit the murder. State v. Harris, 141 N.J. at 568-

69. The mitigating factor does not require that the
    defendant be suffering from a mental disease or defect.
    State v. Loftin I, 146 N.J. at 373-74.

2. Age of Defendant at Time of Murder (N.J.S.A. 2C:11-3c(5)(c))

The age of the defendant should be recognized as a
mitigating factor only when defendant is relatively young
or old. State v. Ramseur, 106 N.J. at 295. This mitigating
factor requires the jury to consider both defendant’s
chronological age and his or her maturity in determining
the applicability of the mitigating factor. A defendant’s
young age does not mean that the jury must find the
presence of this mitigating factor. State v. Bey III, 129
N.J. at 613.

3. No Significant History of Criminal Activity (N.J.S.A. 2C:11-3c(5)(f ))

This mitigating factor is not limited to criminal
convictions; therefore, the State can rebut this mitigating
factor by demonstrating a defendant’s involvement in
criminal activity that did not result in convictions. State
v. Rose I, 112 N.J. 454, 537 (1988).

4. Defendant Rendered Substantial Assistance to the
   State in Prosecuting Another Person for the Crime of
   Murder (N.J.S.A. 2C:11-3c(5)(g))

The fact that the mitigating factor speaks in terms of

“substantial” assistance to the State does not

constitutionally circumscribe the jury’s evaluation of this

mitigating factor, State v. Martini I, 131 N.J. at 299-300,

particularly since the jury instruction on N.J.S.A. 2C:11-

3c(5)(h) (catch-all) ensures that the jury considers all

mitigating evidence. Id. at 300-01.

5. Any Other Factor Relevant to Defendant’s
   Character Record or Circumstances of the Offense
   (N.J.S.A. 2C:11-3c(5)(h) (catch-all))

This mitigating factor is an expansive one but still has

restrictions. For example, the “circumstances of the

offense” are limited to those surrounding the commission

of the crime itself. State v. Gerald, 113 N.J. at 103-04.

Also, testimony from clergy or others on the deterrent

effect of the death penalty or on the humaneness of lethal

injection execution is not relevant to a defendant’s record

or character. State v. Rose II, 120 N.J. 61, 64-65 (1990);

N.J.S.A. 2C:11-3h.

A witness may not give an opinion on the appropriate

punishment to be given to a defendant. State v. Moore,

122 N.J. at 479. If a defendant alleges this mitigating

factor, it may be rebutted by instances of defendant’s

specific conduct. State v. Rose I, 112 N.J. at 502-03.

The fact that the defendant might die in prison if

sentenced to a life term is not a mitigating factor. State

v. Loftin I, 146 N.J. at 371. The possible effect of

defendant’s execution on his or her relatives is not

mitigating evidence and should be excluded. Id. at 367-

69; State v. DiFrisco II, 137 N.J. at 505-06. The potential

parole ineligibility period that a defendant would receive

if a non-death sentence were imposed is not a mitigating

factor. State v. Morton I, 155 N.J. at 466; State v. Cooper

I, 151 N.J. at 405. Similarly, pleas of mercy by relatives

may be admitted in the discretion of the trial judge. State

v. DiFrisco II, 137 N.J. at 506; State v. Moore, 122 N.J. at

479-80.

Under this mitigating factor, any factor submitted

for consideration, and that could be established by

reliable evidence, should be listed on the jury verdict

form. The jury should be advised that these factors are

non-exclusive and that mitigating factors other than

those listed may be found and considered. State v.

Biegenwald IV, 126 N.J. at 46-47. “Double counting”