tions have progressed sufficiently and reached a genuine
stalemate or whether more time is needed. State v. Hunt,
115 N.J. at 380. The trial court cannot charge the jury
at the penalty phase on the importance of reaching a
unanimous verdict. Rather, since the purpose of
deliberations is simply to deliberate, the court must tell
the jury, if it indicates that it cannot agree, that a decision
to disagree is acceptable. Id. at 382-85. However, the
court is under no obligation to ask the jury whether it is
at an impasse when it clearly is not. State v. DiFrisco II,
137 N.J. at 487.
V. MISCELLANEOUS
When the victim’s character has no bearing on the
substantive issue of guilt or the penalty to be imposed,
the prosecutor may not comment on the evidence in a
manner that serves only to highlight the victim’s virtues
in order to inflame the jury. State v. Williams II, 113 N.J.
at 51-52. Similarly, the prosecutor may not comment on
the effect of the murder on the victim’s family in order to
persuade the jury to impose a death sentence. State v.
Coyle, 119 N.J. at 231.
If an expert witness testifies that he or she did not rely
upon certain documents, he or she cannot be questioned
about the contents of those documents if they are not in
evidence. State v. Pennington, 119 N.J. at 578-79.
Similarly, if the expert has not relied upon hearsay
evidence, that evidence may not be employed in cross-
examination. Id. at 583.
VI. APPELLATE REVIEW
By statute, all murder convictions which have
resulted in a death sentence must be appealed to the
Supreme Court. N.J.S.A. 2C:11-3e. In reviewing claims
of error, the Supreme Court will not employ a different
standard in capital cases. State v. Bey II, 112 N.J. at 92.
Rather, it exercises heightened scrutiny of the record and
independence in making its own findings with respect to
trial court rulings and determinations. Id. at 92-93. If
there is error found at the guilt or sentencing phase,
reversibility will be based on a qualitative determination
that considers, in the context of the entire record,
whether the error was clearly capable of affecting either
the verdict or sentence. Id. at 94-95. The sole exception
involves errors that cast so much doubt about the fairness
of the trial that as a matter of law they can never be
considered harmless. Id. at 95.
The Court also has rejected a “heightened” standard
for claims of incompetency of counsel in capital cases.
State v. Davis, 116 N.J. at 352-56. Rather, a defendant
must satisfy the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984) and adopted in State v. Fritz, 105
N.J. 42, 58 (1987). Under the first prong, defendant
must show that counsel’s performance was deficient, i.e.,
that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed defendant by the
sixth amendment. Strickland v. Washington, 466 U.S. at
687, 104 S.Ct. at 2063, 80 L.Ed.2d 674; State v.
Marshall III, 148 N.J. 89, 156 (1997), cert. denied, 522
U.S. 850 (1997). To satisfy the prejudice prong, the
defendant must show that there is a reasonable
probability that but for counsel’s errors, there would have
been a different result. Strickland v. Washington, 466
U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d 674.In the capital sentencing context, a defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, “the jury’s penalty-phase
deliberations would have been affected substantially.”
State v. Marshall III, 148 N.J. at 250. That equates to “a
probability sufficient to undermine confidence in the
outcome.” Id.VII. PROPORTIONALITY
A. Individual Proportionality Review
Statutory proportionality review is intended solely to
determine whether a death sentence, otherwise valid
because supported by the record, is nonetheless
unacceptable because disproportionate to the punish-
ment imposed on others convicted of the same crime.
State v. Ramseur, 106 N.J. at 325. In State v. Marshall II,
130 N.J. 109 (1992), the Court established the
“universe” and the procedure for reviewing whether a
particular death sentence is disproportionate. The
universe of cases includes all cases that are death-eligible
even if not prosecuted capitally. Id. at 137.In 1992, the Legislature amended the statute to limit
the universe of cases for proportionality review to
defendants who received a death sentence. N.J.S.A.
2C:11-3e. The Court has refused to apply the amended
statute because it might interfere with the Court’s right
to appellate review. In re Proportionality Review Project I,
161 N.J. 71 (1999); State v. Loftin II, 157 N.J. 253
(1999), cert. denied, 120 S.Ct. 229 (1999).To be death-eligible, the record must demonstrate
that defendant committed a knowing or purposeful
homicide by his or her own conduct or as an accomplice