State v. Harris

HANDLER, J.,

dissenting in part and concurring in part.

This is a direct appeal from a conviction for capital murder and a sentence of death. Defendant, Joseph Harris, was convicted by a Morris County jury for the knowing and purposeful murder of Ron Ellison. Harris did not deny that he committed the killings; rather, he relied on two psychiatric defenses: insanity and diminished capacity.

The Court affirms defendant’s murder conviction and death sentence. I believe defendant did not have the benefit of a correct charge to the jury on the existence of the c(4)(g) aggravating factor. Further, the jury was not properly instructed on, and so incorrectly understood, the mitigating significance of defendant’s severe mental and emotional problems. For those reasons I conclude that defendant was improperly sentenced to death. I, therefore, dissent from the Court’s affirmance of defendant’s death sentence.

*575 I

Defendant observes that at the penalty trial, the jury was instructed that it could find the c(4)(g) aggravating factor if it determined that the murder was committed during the course of a robbery, burglary, kidnapping or sexual assault. That instruction, defendant argues, would allow a thoroughly fragmented jury nevertheless to find the felony murder aggravating factor so tong-as every juror found that one of the predicate felonies warranted a finding of the aggravating factor. Thus, a jury with three people convinced that the murder occurred during a sexual assault, three during a robbery, three during a kidnapping, and three during a burglary, could find the aggravating factor under the instructions given by the court. That result, defendant contends, is unconstitutional.

Such a fragmented determination can be averted by the use of a specific unanimity charge, a charge that instructs the jury that it can find the aggravating factor only if there is a unanimous finding on the specific offense that constitutes the felony underlying the e(4)(gj aggravating factor. The Court concludes that no such specific unanimity instruction is required, or if one is required, that defendant waived the instruction by failing to request it. Finally, the Court holds any error harmless, finding that because the jurors convicted defendant of all of the charged underlying felonies, they must have agreed unanimously in the penalty phase on the existence of each one. Ante at 562-67, 662 A.2d at 352-54. I conclude that the absence of a specific unanimity instruction in the penalty phase with respect to the felony that is a predicate to the c(4)(g) aggravating factor is unconstitutional. I would, therefore, reverse the death sentence.

It cannot be overemphasized that in a penalty trial at which the State seeks to prove the c(4)(g) aggravating factor or another aggravating factor, such as c(4)(f), which is based on a predicate offense, and where there is more than one possible predicate offense, jurors, in determining the appropriate sentence, may weigh different predicate felonies differently. For example, the *576 c(4)(g) aggravating factor may weigh more strongly for death when the underlying felony is sexual assault than when it is burglary. And because jurors must find aggravating factors unanimously, it is essential that they agree unanimously about the underlying felony that supports the c(4)(g) factor. The absence of a specific unanimity instruction means that the jury could have failed to agree unanimously on the existence of a particular predicate felony, but nevertheless have found the c(4)(g) aggravating factor. It should not, in that event, be possible for the jury to determine that the factor has been established.

The trial court here failed to advise the jury that it must agree unanimously on the existence of an underlying felony in order to find the c(4)(g) factor. The court stated:

Now as far as the aggravating factor that’s listed as B on your verdict sheet [c(4)(g) ] for you to find this aggravating factor to be present, you must be satisfied that the defendant was committing or was fleeing- after committing the crime of robbery, sexual assault, burglary, or kidnapping. The crimes must have occurred at times and places which were not substantially separate for this aggravating factor to be present.

In State v. Parker, 124 N.J. 628, 633 , 592 A.2d 228 (1991) (quoting Schad, v. Arizona, 501 U.S. 624, 631-33 , 111 S.Ct. 2491, 2497 , 115 L.Ed.2d 555, 565 (1991)), the Court observed that “there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” The Court recognized, though, that a specific unanimity instruction will be required when “a single crime can be proven by different theories based on different acts and ... on different evidence.... ” Id. at 635 , 592 A.2d 228 (citing and quoting People v. Melendez, 224 Cal.App.3d 1420, 1433-34 , 274 Cal.Rptr. 599, 608 (1990)). Citing Parker, supra, 124 N.J. at 637 , 592 A.2d 228 , the' Court now acknowledges that “[a] specific unanimity instruction is required when the circumstances demonstrate a reasonable possibility that the jury will find one theory proven and the other not proven but that all of the jurors will not agree on that same theory.” Ante at 563, 662 A.2d at 352. Under the rule of Parker , the Court would look to determine if the underlying allegations — robbery, burglary, kidnapping and sexual assault — “were contradictory or only *577 marginally related to each other and whether there was any tangible indication of jury confusion.” Parker, supra, 124 N.J. at 639 , 592 A.2d 228 (citing United States v. Ryan, 828 F.2d 1010, 1020 (3d Cir.1987)). Presumably, the Court finds in this case that the offenses serving as predicates to the c(4)(g) aggravating factor were neither contradictory nor only marginally related to one another.

In affirming the death sentence today, the Court notes that in the future, judges should in the penalty phase instruct jurors of the necessity to agree unanimously on a specific predicate felony in order to find an aggravating factor. Ante at 563, 662 A.2d at 352. The Court thus tacitly recognizes the error of failing to give a unanimity charge on the felony or felonies that constitute the c(4)(g) aggravating factor. The Court finds, nonetheless, that in this case the lack of a unanimity instruction is not reversible error because the jury convicted defendant of all of the predicate felonies in the guilt phase. Ante at 563, 662 A.2d at 352.

Such an analysis is too facile. Its flaw lies in the simplistic but false assumption that the finding of a fact in the guilt phase of a trial perfectly equates with a finding of that fact in the penalty phase. The former, the Court seems to believe, necessarily leads to the latter.

In my view, the conviction of a felony in the guilt phase, even when all the evidence unequivocally suggests that the felony was committed in the course of the murder, does not lead automatically to a finding of an aggravating factor predicated on that felony. There exists a fundamental difference in the deliberative quality of the two findings. The difference encompasses the distinct purposes that the guilt- and penalty-phase juries serve. The two deliberations are similar, though, at least in this: the jury must agree unanimously in order to convict a defendant of the felony in the guilt phase, and must again agree unanimously on the felony that underlies a finding of the aggravating factor. Therefore, the penalty phase jury must be specifically instructed that it can find *578 the aggravating factor only upon unanimous agreement on the underlying felony.

In State v. Brown, 138 N.J. 481, 576-86 , 651 A.2d 19 (1994) (Handler, J., concurring and dissenting), I reviewed the principles that, I believe, require the giving of a specific unanimity instruction in the circumstances of that, and of this, case. We have recognized that juries in reaching ultimate verdicts perform a function far more embracive and nuanced than that of mere fact-finding. That special quality of the jury’s function constitutes a fundamental part of the right to a trial by jury, a right which holds “a hallowed place” in the firmament of American law. State v. Collier, 90 N.J. 117, 122 , 447 A.2d 168 (1982). The jury acts as “the conscience of the community” in our system of justice. State v. Ingénito, 87 N.J. 204, 212 , 432 A.2d 912 (1981). We burden the jury with the responsibility of making the “paramount, exclusive and independent” adjudication of criminal guilt or innocence. State v. Simon, 79 N.J. 191, 199 , 398 A.2d 861 (1979). In discharging that responsibility, the jury does not perform as a mere fact-finder, but rather more broadly finds the truth as expressed in its ultimate verdict. Ingenito, supra, 87 N.J. at 211 , 432 A.2d 912 . We understand that a jury’s verdict in a criminal case transcends its fact-finding function. Thus, a jury may acquit even in the face of overwhelming evidence of guilt, Simon, supra, 79 N.J. at 208 , 398 A.2d 861 , or return inconsistent verdicts if they “accrue to the benefit of a defendant.” Ingenito, supra, 87 N.J. at 212 , 432 A.2d 912 . A jury may also “nullify” a law by acquitting a defendant for some reason even though the jury may believe the defendant guilty beyond a reasonable doubt. State v. Ragland, 105 N.J. 189, 205 , 519 A.2d 1361 (1986).

We thus recognize the moral dimension of jury verdicts. A defendant’s right to a jury trial means that a defendant has the right to trial by a jury possessed of the fundamental power to exercise moral judgment in discharging its responsibility to determine ultimate criminal guilt or innocence. To dilute or diminish the jury’s responsibility, therefore, violates a defendant’s constitu *579 tional right to a trial by jury. See, e.g., Sandstrom v. Montana, 442 U.S. 510 , 516 n. 5, 99 S.Ct. 2450 , 2455 n. 5, 61 L.Ed.2d 39 , 46 n. 5 (1979) (holding that federal constitution bars directed verdicts against defendants in criminal cases regardless of strength of state’s evidence); State v. Coyle, 119 N.J. 194 , 574 A.2d 951 (1990) (ruling that sequential charge of successive crimes was improper because it can prevent jury from fully considering each charge); Collier, supra, 90 N.J. at 123 , 447 A.2d 168 (invalidating rape conviction where trial court directed verdict on lesser charge of contributing to delinquency of a minor; noting that direction of verdict on lesser charge might “improperly imping[e] on the sensitive area of jury deliberation”); Simon, supra, 79 N.J. at 199-200 , 398 A.2d 861 (ruling that piecemeal instructions, special interrogatories, and fragmented deliberations can result in “subtle coercion” and may undermine jury’s capacity to determine ultimate criminal guilt or innocence).

By statute, the Legislature has extended the right to trial by jury to capital-sentencing proceedings. N.J.S.A. 2C:ll-3c(l). All of the principles that define the duty of a jury and govern its deliberations, then, apply in full measure to the sentencing phase of this defendant’s trial. A sentencing jury, like a guilt jury, bears the ultimate responsibility of decision. N.J.S.A. 2C:ll-3e(3).

There is in the determination of criminal guilt a quality that cannot be measured simply as the sum of the facts that may add up to guilt. For that reason, every guilt determination must be singular and independent of any other determination of guilt and must be based only on the evidence that bears on it. In the ordinary run of cases in which a jury is called on to make successive determinations of guilt, we require the jury to consider from a fresh vantage point the evidence of guilt supporting a criminal conviction even though that same evidence was previously considered by that same jury in the prior criminal proceeding-adjudicating another, albeit related, crime. Ragland, supra, 105 N.J. at 195 , 519 A.2d 1361 (holding that to safeguard defendant’s presumption of innocence on a second charge, “the jury [must] be *580 instructed in no uncertain terms to consider anew the evidence previously admitted but to' disregard completely its prior verdict”); Ingenito, supra, 87 N.J. at 209 , 432 A.2d 912 (same). It is even more imperative that such reconsideration be ensured in a capital-sentencing trial.

The decision to sentence a defendant to death vastly exceeds in intellectual and moral difficulty the determination of ultimate criminal guilt. State v. Purnell, 126 N.J. 518, 553 , 601 A.2d 175 (1992) (Handler, J., concurring and dissenting). The extraordinary severity and irreversibility of the penalty command a heightened degree of care in the application of the principles of our law. See, e.g., Lockett v. Ohio, 438 U.S. 586, 605 , 98 S.Ct. 2954, 2965 , 57 L.Ed.2d 973, 990 (1978); State v. Ramseur, 106 N.J. 123, 316 , 524 A.2d 188 (1987). Thus, the right to trial by jury at capital sentencing invokes protections greater even than those necessary to preserve the right to trial by jury on the issue of guilt.

If we require a jury to deliberate anew and scrupulously to reconsider evidence in a case in which a bifurcation separates two guilt determinations arising out of common evidence, e.g., Ragland, supra, 105 N.J. at 195 , 519 A.2d 1361 ; Ingenito, supra, 87 N.J. at 209 , 432 A.2d 912 , we surely must insist that the jury reconsider evidence when a bifurcation separates a guilt from a capital-sentencing determination. In the former case, the jury considers the evidence again for its capacity to establish a particular element as it bears on criminal guilt, but in the latter, and instant, case, the decision on that element exists in a wholly new deliberative universe. Now, the larger deliberation does not aim to establish criminal guilt or innocence, but rather to judge whether the defendant shall live or die.

We cannot fully fathom or divine the deliberative dynamics of a jury’s decision on whether to put a defendant to death. For that reason, even within the framework of substantive standards explained by clear instructions, we cannot deny a jury the decisional flexibility and freedom of conscience to examine anew the evidence previously considered and to resolve the facts to be found from *581 that evidence. The significance of this power to re-examine evidence previously considered by the jury inheres in part in the nature of the doubts that may have arisen.during the jury’s earlier deliberation. A jury, therefore, must be allowed in a successive deliberation to revisit any lingering doubts and to give those doubts weight sufficient to spare the life of a defendant. See Lockhart v. McCree, 476 U.S. 162, 181 , 106 S.Ct. 1758, 1769 , 90 L.Ed.2d 137, 153 (1986); Smith v. Balkcom, 660 F.2d 573, 580-81 (5th Cir.1981) (applying Georgia law), cert. denied 459 U.S. 882 , 103 S.Ct. 181 , 74 L.Ed.2d 148 (1982). Many courts recognize that a jury’s residual doubts about guilt of murder can properly affect its weighing of aggrayating and mitigating factors in the ultimate life-or-death decision. See, e.g., Andrews v. Collins, 21 F. 3d 612, 623, n. 21 (5th Cir.1994) (Texas); Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir.1988) (approving counsel’s strategy of arguing residual doubt to jury), rev’d on other grounds sub nom. Stringer v. Black, 503 U.S. 222 , 112 S.Ct. 1130 , 117 L.Ed.2d 367 (1992), aff'd as modified, 979 F.2d 38 (5th Cir.1992); Rupe v. Wood, 863 F.Supp. 1315, 1340 (W.D.Wash.1994); People v. Johnson, 3 Cal. 4th 1183 , 14 Cal.Rptr.2d 702, 741-42 , 842 P.2d 1, 40-41 (1992), cert. denied — U.S. —, 114 S.Ct. 114 , 126 L.Ed.2d 80 (1993); State v. Watson, 61 Ohio St.3d 1 , 572 N.E.2d 97, 111 (1991); cf. Franklin v. Lynaugh, 487 U.S. 164, 174 , 108 S.Ct. 2320, 2327 , 101 L.Ed. 2d 155, 166 (1988) (ruling that no federal constitutional right exists to have jury consider residual doubts in mitigation of sentence). It follows that a jury’s residual doubts about guilt of an underlying felony can properly affect the jury’s decision about the existence of an aggravating factor dependent on that felony.

Defendant’s sentencing jury, then, should have been required to reconsider the evidence of the charged felonies and to deliberate anew in the penalty phase about the existence of the felonies underlying the c(4)(g) aggravating factor. Most importantly, it should have been instructed to do so unencumbered by its prior determinations based on that evidence.

*582 Aggravating factors must be found unanimously. State v. Bey, 112 N.J. 123, 159 , 548 A.2d 887 (1988) (Bey II). After finding the existence of aggravating and mitigating factors, the jury must weigh those factors against one another. If a predicate crime is an element of the aggravating factor, jurors, obviously, may weigh one or more of the possible predicate crimes differently. It is, therefore, critically important that the jury be unanimous with respect to the underlying felony supporting the aggravating factor. Otherwise, as may have been the case here, jurors who convicted the defendant of all four possible underlying felonies may be tempted to weigh that factor cumulatively i.e., give it extraordinary weight because they are mindful that four felonies fall within its ambit.

The Court, applying conventional plain-error doctrine, undertakes an independent examination of the record and purports to know what a properly instructed jury would have done. To presume to have such knowledge, the Court must assume that juries in the context of determining a life-or-death sentence undertake merely a fact-finding function. That, however, is not the case.

Even if we assume that the jury did properly deliberate anew, we must acknowledge that we have no way of knowing whether, in those deliberations, the jury unanimously found any of the possible predicate felonies. We know that every juror individually found the existence of some predicate felony, because the jury as a whole found the aggravating factor. But because the jury was not instructed on the necessity of unanimous agreement on a specific predicate felony, we cannot know whether in fact the jury did thus unanimously agree.

The majority, therefore, looks in vain to the guilt verdicts for guidance and support concerning the events of the penalty deliberation. There is none that enables it to use those verdicts simply to ratify defendant’s death sentence. The Court, as noted, acknowledges that it is error not to give a specific unanimity charge in these circumstances. Ante at 563, 662 A.2d at 352. The *583 Court’s finding of no plain error, relying on the fact of the guilt verdicts, is not defensible.

II

Substantial evidence was presented in this case to show that defendant suffered serious mental problems. The jury, however, failed to find either of the statutory mitigating circumstances that implicate such evidence. It did find certain catch-all circumstances involving mental impairment evidence but, contrary to the suggestion of the Court, those did not directly reflect his mental illness. Ante at 569-70, 662 A.2d at 355-56. Defendant attributes the jury’s rejection of his mental impairment itself as a mitigating circumstance under the catch-all factor to the trial court’s failure specifically to instruct the jury that it should reconsider evidence of mental impairment under the catch-all heading, even if that evidence proved insufficient to establish the statutory mental illness factors. He contends that the court’s general instruction that the jury could consider anything in mitigation might not have communicated to it the knowledge that it could reconsider the mental illness evidence already rejected in connection with the determination of the statutory mitigating factors.

The Court rejects that argument, noting that the trial court did tell the jurors in general terms that they could consider any evidence as mitigating under the catch-all factor. Ante at 568-69, 662 A.2d at 355. I disagree, finding the general instructions inadequate.

Defense expert Dr. Arnaldo Apolito testified that defendant was not responsible for his actions at the time of the crimes. He diagnosed defendant as a chronic paranoid schizophrenic. Dr. Apolito testified that although defendant knew that society would judge his actions to be wrong, he felt they were “right.” The State’s expert, Dr. Azariah Eshkenazi, diagnosed defendant as having a schizoid personality disorder. He noted the careful planning that went into defendant’s crimes, and the attempts *584 defendant made to conceal his identity, as evidence of defendant’s knowledge of the consequences of his actions.

Uncontested and abundant evidence established defendant’s deep emotional instability and disturbance. Defendant was quite literally born in prison to a mother then incarcerated at the New Jersey correctional facility in Clinton. As a newborn, he was given over to an aunt and uncle to raise. When that arrangement failed, defendant was uprooted and sent to live with his mother’s aunt and her husband.

Defendant never had much contact with his mother, although she lived in nearby Paterson. He was, apparently, ashamed of his mother, who bore thirteen other children by five different fathers, and defendant was discouraged from having any relationship with her, as she was considered an outcast by the family. Defendant did not meet his father until he was eleven years old.

Defendant’s abnormal behavior began early. School teachers suspected that defendant had severe emotional problems, and although they repeatedly suggested psychiatric evaluation, none was ever done. By the fifth grade, defendant had invented an imaginary friend. He soon began to hear the voice of an Indian Chief. Defendant also was accompanied by the spirit of a “Ninja Warrior” who required him to act with great secrecy in all his dealings. That “Ninja” spirit directed defendant to go to Asia, an assignment defendant performed by joining the United States Navy and requesting to serve in the Philippines. Defendant was granted a general discharge, although his service record describes him as a “complete misfit” with a provisional diagnosis of a schizoid disorder.

Defendant eventually landed a job in the Ridgewood post office where he was subject often to Postal Service discipline. He became convinced that, he was being singled out for persecution because of his race. He believed that his co-workers deliberately spread germs near him in an attempt to make him sick. He took up karate and would occasionally come to work in combat fatigues and break into karate poses on the job. His supervisors at the *585 post office suggested that he seek psychiatric counseling. He refused. He was working at the post office when he was arrested for murders in Bergen County in 1991.

This evidence clearly relates to the c(5)(h) “catch-all” mitigating factor. The court delivered the following instruction on that factor:

The fourth mitigating factor is listed as D on your verdict sheet says [sic] any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.

This is not really a single factor, rather it requires that you consider all of the evidence received as it relates to or concerns the defendant’s life, his character, his characteristics or his record and the totality of the circumstances of the crime as well [as] the defendant’s potential for rehabilitation.

This list is non-inclusive and mitigating factors other than those listed may be found and considered whether or not the mitigating factors you find are listed on the jury verdict form. You will note that I have left space on this page for you to list any other mitigating factors that you may find to exist.

ijs * i¡í * * ❖ * *

Now you may list any other factor which you find to be a mitigating factor, any other factor which you believe is relevant to the defendant’s conduct, his character rather or his record or to the circumstances of the offense or any other factor which has not been listed on the verdict sheet, you’re not to restricted [sic] or bound by those verdicts. (Emphasis added).

The Court today dismisses defendant’s argument with the observation that the trial court told the jury that it could consider all of the evidence in assessing the c(5)(h) factor. Ante at 567, 662 A.2d at 354-55. At no time, though, did the court ever expressly inform the jury thát it could consider, for the purposes of the catch-all factor, evidence it had previously considered and found insufficient or otherwise unpersuasive for the purpose of establishing one of the statutory mitigating factors. An explicit charge that specifically informs the jury that it should consider mental impairment evidence under c(5)(h) is required because otherwise jurors may assume that in rejecting the evidence in relation to the c(5)(a) and e(5)(d) factors they have exhausted the relevance of that evidence. Thus, although the trial court’s instructions were correct, they did not and could not alleviate the jury’s tendency to assume that it had already considered the mental impairment *586 evidence. Thus, as noted by defendant, although the phrase “any other factor,” was repeatedly used, the jury could understand that phrase to mean only any other factor that you have not already considered and rejected.

This Court indirectly acknowledged the significance of concerns about the interplay between the catch-all factor and the statutory mental state mitigating factors in State v. Martini, 131 N.J. 176, 300-08 , 619 A.2d 1208 (1993). There, the Court rejected the argument that a trial judge’s instruction emphasizing the qualifying language in factors e(5)(a) (“extreme”) and c(5)(d) (“significant”) created an impermissible barrier to the weighing of relevant mitigating evidence of the defendant’s mental impairments. However, the charge given in Martini differs significantly enough from the charge given here to warrant a different result. The charge given by the trial court in Martini more explicitly directs the jury to consider anything, including evidence perhaps already considered under a statutory factor. Thus, it is apparent that the jury there understood that it could reconsider evidence. The Martini charge included the following as part of the trial court’s charge on the e(5)(h) factor:

All mitigating evidence is to be considered by you, whether it appears during the first part of the trial from witnesses called by the State or the defense, and from the physical evidence, or it appears during this phase of the trial from the evidence produced by either side, or any mitigating factor that you see present.

Id. at 306 , 619 A.2d 1208 . (emphasis added). That last phrase “or any mitigating factor you see present” indicates to the jury that it can use evidence bearing on other mitigating factors as part of its catch-all consideration. Defense counsel in Martini also informed the jury that “[e]ven if you had the slightest little doubt during the course of your deliberations on the first trial you can take into consideration and utilize those [factors].” Ibid.

The Court determined in Martini that there was “no reasonable likelihood that the jury had applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 304 , 619 A.2d 1208 (quoting Boyde v. California, 494 U.S. 370, 380 , 110 S.Ct. 1190, 1198 , 108 L.Ed.2d 316, 329 *587 (1990)). The Court’s determination rested in part on the fact that with respect to the catch-all factor, the jury was instructed that it should consider all of the evidence. Id. at 305, 619 A.2d 1208 . Nevertheless, the Court noted the “desirability of more precise instructions that would clarify even further the scope and function of those mitigating factors.” Id. at 307 , 619 A.2d 1208 (quoting State v. Marshall, 123 N.J. 1, 147-48 , 586 A.2d 85 (1991)).

Amicus cites Martini as establishing that a general “you may use all evidence” instruction suffices to inform the jury of how to use the mental impairment evidence under c(5)(h). I disagree. In response to Martini , the Judges Bench Manned for Capital Causes proposed an explicit instruction concerning the reconsideration of mental impairment evidence under c(5)(h). See Judge’s Bench Manual for Capital Causes, Appendix J25-26 (“However, if the mental or emotional disturbance was present but not extreme, you may still consider such lesser disturbance under mitigating factor (h) ...”).

The jurors understood that they could consider all evidence from any part of the trial in their c(5)(h) determination. However, there is reason to doubt that jurors would understand, without explicit instruction, that they could reconsider evidence of mental impairment that they previously concluded did not rise to a level sufficient to establish a statutory mitigating factor. It assumes too much to suggest that the jury, without explicit instruction, would be able to fathom the differences between finding that defendant’s mental impairments constituted mitigation under c(5)(a) or c(5)(d) and finding mitigation on the same evidence under c(5)(h).

In Jeffers v. Lewis, 974 F.2d 1075 (9th Cir.1992), the court considered a situation analogous to the case at bar. The court noted that the trial court failed to direct the jury to consider such evidence of psychological impairment that did not meet the statutory requirement of “significant impairment” as a non-statutory mitigating circumstance. Id. at 1078 . The court ruled that “[bjecause there is a risk that mitigating evidence in this case was *588 not fully considered, Jeffers’ sentence of death cannot stand.” Id. at 1084 . The court, citing Smith v. McCormick, 914 F. 2d 1153, 1166 (9th Cir.1990) (holding that mitigating evidence of mental impairment could not be excluded from penalty phase of capital trial simply because it was not sufficiently substantial to meet state statutory requirement), noted that it is “not permitted to presume that because evidence was admitted before the factfinder, it was necessarily given consideration.” Id. at 1079 (quoting Smith, supra, 914 F.2d at 1166 ).

“The catch-all factor acts as a safety net, and in order for it to function properly, specific instructions are required.” Martini, supra, 131 N.J. at 357 , 619 A.2d 1208 (Handler, J., dissenting). As in Maitini, here I believe that “the failure of the trial court to instruct specifically that the jury could consider non-extreme mental or emotional disturbance ... under the catch-all factor,” even though that evidence had been previously considered by the jury, “created a ‘reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ ” Id. at 359, 619 A.2d 1208 (quoting Boyde, supra, 494 U.S. at 380 , 110 S.Ct. at 1198 , 108 L.Ed.2d at 329 ).

The charge and arguments at issue in this case, as noted above, repeatedly used the potentially confusing reference to “any other factor.” A passage from a portion of the trial court’s instruction to the jury is illustrative:

... [T]his factor is in fact an invitation by the legislature for you to use your good judgment, your openness and your compassion to determine whether there are one or more factors that are not specifically asseiied by the defendant or listed by the legislature as mitigating factors present in this case.

The tenor of that instruction is to focus the jury on issues and evidence not already addressed by the statute or defendant. Because mental impairment is explicitly addressed by the statute, the impression that the issue is to be analyzed only in connection with the statutory factors is quite plausible.

That kind of shortcoming — an inadequate jury instruction— cannot, in my opinion, be overcome or rectified by arguments or *589 closing statements of counsel. See, e.g., Marshall, supra, 123 N.J. 1, 246 , 586 A.2d 85 (1991) (Handler, J., dissenting). In any event, counsel’s efforts were, totally unavailing. Defense counsel’s summation included a reference to the psychiatric testimony. He focused the jury’s attention on the “defendant’s emotional and mental state in determining whether there was any evidence that defendant suffered a mental or emotional disturbance or had diminished capacity due to mental disease or defect.’’ Defense counsel’s language was tightly tied to the language of the c(5)(a) (“extreme emotional disturbance”) and e(5)(d) (significant impairment) mitigating factors.

Finally, defense counsel advised the jury:

And there are, there may be mitigating factors that I haven’t even dismissed that you as jurors may feel are appropriate.

... [Wjrite down any mitigating factor that you feel is appropriate, that you feel there’s something in Joseph Hams’ background which allows you to find a mitigating factor, even though I didn’t discuss it, even though it’s not mentioned

But having thus directed the jury to the psychiatric evidence, defense counsel failed to request that the jury be instructed explicitly that it could give that evidence mitigating weight under the c(5)(h) factor. Here, the jury was instructed to consider issues that were not addressed, but was not directed to reconsider evidence already examined.

It cannot be overemphasized that the point to be conveyed to the jury is complex. The jury must understand that though it has considered and rejected the mental impairment evidence as it relates to the e(5)(a) and e(5)(d) factors, it is nonetheless free to reconsider that evidence under the c(5)(h) factor.

Finally, one cannot fail to be troubled by the fact that this jury, when considering the c(5)(h) factor, did not find any mitigation resulting from this defendant’s obvious mental problems. The Court proposes, ante at 567-68, 662 A.2d at 354-55, that certain of the circumstances found under c(5)(h) do reflect the psychiatric evidence. I disagree. Defendant may not have been legally *590 insane. He may not have suffered an “extreme emotional disturbance” at the time of his crime. His capacity to conform his conduct may not have been “significantly impaired.” But he was, indisputably, a seriously disturbed individual.

The failure to give a specific instruction constitutes reversible error when one considers the weight of the evidence of mental impairment. The jury’s failure to find any mitigating factor may be attributed to the fact that the jury likely did not understand that it could find the evidence of mental illness to constitute a non-statutory mitigating factor even if it did not find that evidence sufficient to establish a statutory factor.

The importance of evidence related to a capital defendant’s mental condition is obvious. This Court itself has recognized that mental illness is a recurrent and troubling characteristic of many death-sentenced defendants in New Jersey. State v. Zola, 112 N.J. 384, 437 , 548 A.2d 1022 (1988). One statistical study notes an alarming prevalence of mental illness among New Jersey’s capital defendants. Leigh B. Bienen, et al. The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion, 41 Rutgers L.Rev. 1 (1988). See also Andrew L. Shapiro, An Insane Execution, N.Y. Times, May 11, 1995, at A29 (reporting-imminent execution- of insane capital defendant in Alabama). Martini itself underscores the importance of mental impairment evidence and its direct bearing on deathworthiness. Moreover, this Court has already noted the difficulties jurors have with psychiatric evidence. State v. Moore, 122 N.J. 420, 453-54 , 585 A.2d 864 (1991).

As is clear from the voir dire in this case, concerns about the jurors’ willingness to accept legitimate psychiatric testimony were evident throughout the case. This jury faced four critical questions involving psychiatric testimony: (1) whether defendant’s mental condition met the requirements of the insanity defense; (2) whether his mental condition met the requirements of diminished capacity; (3) whether his mental condition satisfied the requirements of e(5)(a) and/or c(5)(d); and (4) whether there was any *591 mitigation to be found at all in defendant’s mental condition under e(5)(h). Before getting to question four, this jury could well have felt that it was done with defendant’s mental condition. In my opinion, the jury needed an explicit instruction that explained the fourth use for mental impairment evidence under the Capital Murder Act.

The evidence is replete with indications of defendant’s mental instability, yet the jury found no mental impairment mitigation. The failure explicitly to charge the jury regarding its obligation to reconsider the mental impairment evidence under c(5)(h) could reasonably have affected the outcome of this case.

Ill

Defendant argues that the jury should have been instructed that if credible evidence of a statutory mitigating factor exists, then the jury must find that factor. Under the circumstances, I agree. The Court disposes of this claim by referring to N.J.S.A. 2C:11-3e(2)(a), which provides that the defendant bears the burden of production, but not of proof, with respect to the mitigating factors. Ante at 565, 662 A.2d at 353.

The existence of at least some mitigating factors (such as that referring to a lack of prior criminal history) do not implicate the qualitative judgment of the jury. I believe that a court must, in a proper case, instruct the jury that it must find such a factor when the evidence of its existence is uncontested. The existence of other factors, though, may demand of the jury a qualitative judgment, and thus a court may not instruct the jury to find these. Once a jury has found that a mitigating factor exists, it must go on to evaluate the relative weight of that factor in the ultimate determination. The court may never instruct the jury as to the weight of a factor, but it may, I believe, instruct a jury that a factor exists and should be found when the evidence incontestably establishes the facts underlying the factor.

Concededly, there is a distinction among factors according to the degree to which their existence is obvious. Thus, the youth of *592 an 18-year old or the lack of a-criminal history of an altar-boy defendant is obvious in a sense that extreme emotional disturbance rarely is. But the fact that we can usually only with difficulty decide whether an extreme emotional disturbance exists does not make the fact of its existence, in an appropriate case, any less sure. In other words, extreme emotional disturbance, I submit, can exist just as objectively as youth, such that the finding of the existence of extreme emotional disturbance does not involve a “qualitative” judgment any more than does a finding about age or criminal history. The findings are distinct only in the difficulty of the discovery of the objective fact.

I thus disagree with the Court that a trial court could never direct a jury to find the emotional disturbance factor. There can be a case of disturbance so obvious that a court should direct the finding.

IV

For the reasons expressed, I conclude that defendant’s death sentence is invalid, and, therefore, I dissent from the Court’s judgment affirming defendant’s death sentence.

For affirmance — Chief Justice WILENTZ and Justices POLLOCK, O’HERN, GARIBALDI, and STEIN — 5.

For affirmance in part; reversal in part — Justice HANDLER — 1.