the mitigating factor is avoided by advising the jury that
the same evidence may be used to prove multiple
mitigating factors. Id. at 48; State v. Pennington, 119 N.J.
547, 599 (1990).
A court need not submit, as separate mitigating
factors, a list of occurrences in a defendant’s life that
defendant has submitted under the catch-all. State v.
Harris, 156 N.J. at 187. Similarly, the jury need not
separately vote on each occurrence. Id. However, the
court must make sure that the jury understands the
purpose of mitigating evidence. Id. If a defendant
submits, under the catch-all, disparate and wholly
unrelated mitigating factors, the trial court should not
combine them. State v. Nelson, 155 N.J. at 511.
Whenever a defendant presents evidence of his
character or record under the catch-all mitigating factor,
the State is permitted to present evidence of the murder
victim’s character and background and of the impact of
the murder on the victim’s survivors. N.J.S.A. 2C:11-
3c(6) (victim impact evidence).
The defense must be advised prior to commence-
ment of the penalty phase about whether the State
intends to introduce victim impact evidence, and the
State must provide defendant with the names of the
witnesses it intends to call so that the defense will have an
opportunity to interview them. Before a family member
will be allowed to testify, the trial court should hold an
N.J.R.E. 104 hearing to decide the admissibility of the
proffered evidence.
The proposed testimony, which should be reduced
to writing to allow the judge to review it, should provide
a general factual profile of the victim, including
information about the victim’s family, employment,
education and interests and can describe generally the
impact of the victim’s death on the family. The court
should weigh each specific point of the proffered
testimony to ensure its probative value is not
substantially outweighed by prejudice, with the
recognition that there is a strong presumption that the
evidence is admissible. Usually only one witness should
testify and children should not testify unless they are the
closest surviving family member. State v. Muhammad,
145 N.J. 23, 54-55 (1996).
After the victim impact evidence is admitted, the trial
court should instruct jurors that if any one of them has
found the catch-all, that juror(s) may consider the victim
and survivor evidence in determining the weight to give
the catch-all factor. Id.6. Miscellaneous
The sentence defendant is now serving or the
sentences or dispositions of codefendants are not
mitigating factors. State v. Brown, 138 N.J. at 554-57;
State v. DiFrisco II, 137 N.J. at 504-05; State v. Bey III,
129 N.J. at 602; State v. Biegenwald IV, 126 N.J. at 49;
State v. Gerald, 113 N.J. at 101-03. However, at the
defendant’s request or upon a jury inquiry, the trial court
should inform the jury about defendant’s prior
sentences. If defendant is appealing his prior sentences,
the jury should be advised that the sentences are not final.
Moreover, the jury must be instructed that these prior
sentences are neither aggravating nor mitigating factors
and should not be considered in the “life or death”
decision. State v. Bey III, 129 N.J. at 603.Similarly, if the defense or jury asks for instructions
on potential sentences defendant will receive for
convictions arising from the same trial as the capital
conviction, it should be informed of the sentencing
options available and that the determination of the
sentences to be imposed on the other counts, and
whether they will be concurrent or consecutive, is one
made by the court. The jury also must be told that the
potential sentence(s) for any other charge is irrelevant to
its determination of defendant’s sentence on the capital
murder count. State v. Martini I, 131 N.J. at 313.If the trial judge believes that, if the jury does not
impose a death sentence that it will sentence defendant
to a term to be served consecutively to any other sentence
defendant is presently serving, it should so inform the
jury. State v. Loftin I, 146 N.J. at 372.After providing the jury information on these
potential sentences, the trial court should make clear that
the jury’s decision with regard to whether death is the
appropriate punishment should not be influenced by the
potential sentences the court could impose on the other
convictions or on the fact that a defendant will face a
longer confinement than others might. Rather, a
defendant’s worthiness for life should depend only on the
circumstances of the offense and the aggravating and
mitigating factors that have been presented. State v.
Nelson, 155 N.J. at 505.A defendant has a non-constitutional right of
allocution at the sentencing phase to make an unsworn
personal statement in mitigation of death. Before such a