State v. Brown

O’HERN, J.,

dissenting in part.

I disagree with the majority’s position that principles of constitutional law or statutory construction require that a jury be instructed that it may return a non-unanimous verdict in the guilt phase of a capital ease.

I

Trial by jury is fundamental to the American system of criminal justice. It is “the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact” in major criminal *594 cases. Patton v. United States, 281 U.S. 276, 312 , 50 S.Ct. 253, 263 , 74 L.Ed. 854, 870 (1930). “[The] intrinsic value of trial by jury has earned public confidence over time.” State v. Dunne, 124 N.J. 303, 318 , 590 A.2d 1144 (1991). In Dunne we stated:

“ ‘[T]he maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions’” that, under federal law, a defendant may not unilaterally insist on a trial before a judge alone. [Singer v. United States, 380 U.S. 24, 34 , 85 S.Ct. 783, 789 , 13 L.Ed.2d 630, 637 (1965) (quoting United States v. Patton, 281 U.S. 276, 312 , 50 S.Ct. 253, 263 , 74 L.Ed. 854, 870 (1930)).] * * * Thus, through trial by jury, “in most circumstances” justice can be done. A fair trial is afforded to the accused, and public confidence in the criminal justice system is preserved.

[Id., 124 N.J. at 318-19 , 590 A.2d at 1151 .]

One of the nearly-universal hallmarks of trial by jury is the requirement of a unanimous verdict in criminal cases. The roots of the search for jury unanimity are traced in 3 William Blackstone, Commentaries *375-76.

Consistent with that history and tradition, I believe that allowing, much less requiring, juries to consider the return of non-unanimous verdicts in the guilt phase of a capital case is wrong. The Court reasons that the “by [one’s] own conduct” factor in a capital ease is not an essential element of the crime of capital murder and thus may in effect be treated as though it were an aggravating factor in the sentencing phase. Ante at 510-511, 651 A.2d at 32-33. In the sentencing phase of a capital case, the jury is statutorily authorized to return a non-unanimous verdict. N.J.S.A 2C:ll-3c(3)(c).

Aside from being an internal contradiction with its own precedent (in State v. Koedatich, 118 N.J. 513, 524-28 , 572 A.2d 622 (1990), the Court held that a non-unanimous finding on the presence of an aggravating factor was not a criminal verdict), the Court’s theory that there may be non-unanimous verdicts in the guilt phase adds to capital cases another layer of decision that is not required by law.

II

In reaching its conclusion, the majority reasons that capital murder does not exist under the Code — there is only murder — and *595 that the qualifications for capital sentencing in N.J.S.A 2C:ll-3e are not essential elements of a defined offense of capital murder. I disagree.

The Code’s structure makes clear that before a defendant may receive a capital sentence, a jury must first have determined in the guilt phase of the trial that the defendant committed the murder “by [the actor’s] own conduct,” or through “payment or promise” of anything of value, or as a “leader of a narcotics trafficking network.” N.J.S.A. 2C:ll-3c. Consider the implications of the majority’s thesis in the context of the last factor, the leader of the nareotics-traffieking network, the so-called “drug kingpin.” I suspect that in most drug-kingpin prosecutions involving murder, the State will charge the accused kingpin with the underlying substantive offense in another count of the indictment. Must the jury be instructed that it may be non-unanimous on the capital-murder count but that it must be unanimous on the kingpin count? Consider also the payment-of-value factor. Must a jury be told that it may return a non-unanimous verdict on the presence of that factor? I think not.

That conclusion (that one who hires a killer could not receive a non-unanimous verdict on that issue of hiring) leads me to believe that to suggest that the death-triggering factors are anything but the essential elements of the crime of capital murder is not logical. As essential elements of capital murder, the presence or absence of those factors must be unanimously determined in the guilt phase of the capital case. Our Rules Governing Criminal Practice contemplate no less. Rule 3:7-3(b) requires that an indictment for murder shall specify whether

the defendant is alleged: (1) to have committed the act by his or her own conduct or (2) to have procured the commission of the offense by payment or promise of payment, of anything of pecuniary value or (3) to be the leader of a drug trafficking network * * *, and who, in furtherance of a conspiracy * * *, commanded or by threat or promise solicited the commission of the offense.

The Code makes the point clear.

“Element of an offense” means (1) such conduct or (2) such attendant circumstances or (3) such a result of conduct as

*596 (a) Is included in the description of the forbidden conduct in the definition of the offense; [or]

(b) Establishes the required kind of culpability * * *.

[N.J.S.A. 2C:l-14h.]

Each of the 2C:ll-3c factors “[e]stablishes the required kind of culpability” for capital sentencing. Hence, because those factors are essential “[e]lement[s] of an offense,” ibid., they must be unanimously resolved in the guilt phase of the capital case.

Ill

The determination of the presence of those elements in the guilt phase of a capital case is analogous to a pre-Code finding of first-degree murder. Under pre-Code law, murder was divided into two degrees as part of an early reform to mitigate the death penalty. First-degree murder was characterized by the willful, deliberate, and premeditated nature of the killing. N.J.S.A. 2A:113-2, repealed by A. 1978, c. 95, N.J.S.A. 2C:98-2. “All other murders were presumptively of the second degree” and such defendants were therefore not subject to the death penalty. State v. Gerald, 113 N.J. 40, 71-72 , 549 A.2d 792 (1988). Recall that Senator John Russo, the principal sponsor of the 1982 death-penalty act, analogized death eligibility with “first degree murder, willful, premeditated murder.” Senate Judiciary Committee, Hearings on S. 112 1 (1982). Let us suppose the Legislature had simply retained those pre-Code definitions of murder but had added the separate sentencing requirement of N.J.S.A 2C:11-3c(3)(e) with its provision that “[i]f the jury is unable to reach a unanimous verdict [in the sentencing phase,] the court shall sentence defendant * * * ” to a term of thirty years to life with a minimum of thirty years without parole. Would a jury that could not reach a unanimous verdict of guilt or innocence on the first-degree murder charge be instructed that it was nonetheless authorized to return a verdict of second-degree murder because the Code provisions that allow a non-unanimous verdict with regard to the weighing of aggravating and mitigating factors at the penalty phase have the corresponding effect of allowing the *597 jury to return a non-unanimous verdict on guilt or innocence of first-degree capital murder?

I have found no case in which a jury unable to agree on the guilt or innocence of the degree of murder establishing death eligibility was not dismissed even though it had reached, or might have reached, a verdict on a lesser degree of murder. Such non-unanimity on the higher degree does not constitute a bar to a retrial of a defendant for the first-degree count. State v. Booker, 306 N.C. 302 , 293 S.E.2d 78 (1982), summarizes the majority rule. “When a jury has declared its inability to reach a verdict [on a first-degree murder count], the action of the trial judge in declaring a mistrial is reviewable only in case of gross abuse of discretion * * Id. 306 N.C. 302 , 293 S.E.2d at 79 . The principle that allows the public to see that a criminal prosecution proceeds to a verdict either of acquittal or conviction is predicated on “the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834, 837 , 93 L.Ed. 974, 978 (1949). The better way to charge in a capital case may be to instruct the jury that it must consider two charges, capital murder and non-capital murder, and to explain that the defendant may be found guilty of non-capital murder as either a principal or an accomplice.

In this case, the issue arises as a matter of plain error. The jury charge in this case could have been clearer, but it did not incorrectly state the law. Nothing requires that a jury be instructed that it may return a non-unanimous verdict on a capital-murder count. I am satisfied that the charge did not have a clear capacity to bring about an unjust result. See Rule 2:10-2. A capital-murder charge should not authorize non-unanimous verdicts in the guilt phase of a capital ease.

[W]e must never forget, as we have stated so often, the importance of maintaining the public’s confidence in our criminal-justice system. Tidal by jury, for reasons rooted in our history and tradition, is one of the foundations of that confidence. It is a foundation not simply because of trust in the common man, trust in the verdict of one’s peers, but because it has proven itself as the best vehicle for attaining justice. We surrender to no clamor when we protect trial by jury; we simply accept the wisdom of the ages and benefit from the experience of thousands of *598 judges over hundreds of years who continue to marvel at the consistent soundness of jury verdicts.

[ Dunne, supra, 124 N.J. at 319 , 590 A.2d 1144 .]

The jury verdict on the capital-murder count was sound. Had any member of the jury entertained a reasonable doubt as to defendant’s guilt of murder by his own conduct, the jury would have been hung and a new trial afforded defendant.

Justice GARIBALDI joins in this opinion.

For affirmance — Justices O’HERN and GARIBALDI — 2.

For reversal — Justice HANDLER — 1.

For affirmance in part, reversal in part and remandment— Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK and STEIN — 4.