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State v. Biegenwald3/5/1987
he reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. den., 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970) (quoted in State v. Latimore, 197 N.J. Super. 197, 213 (App.Div.1984), certif. den., 101 N.J. 328 (1985)). In any event we know of no authority -- nor does defendant point to any -- standing for the principle, constitutional or otherwise, that a court is compelled to make such comment. See Stevens v. Roettger, 22 N.J. Super. 64, 66 (App.Div.1952) ("It is elementary that a trial judge is not obliged to charge matters or comment with regard to the facts of the case . . .").
The issue of the trial court's comment on the evidence usually arises in a different context, one in which a defendant argues that the court should not have recited the facts of the case. In those situations our decisions have uniformly recognized the right of a trial court to comment on the evidence, e.g., State v. Mayberry, supra, 52 N.J. at 439-40; State v. Laws, 50 N.J. 159, 176-77 (1967), reargued, 51 N.J. 494, cert. den., 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968), and "oftentimes" even the duty to do so, Mayberry, supra, 52 N.J. at 439-40; Laws, supra, 50 N.J. 176-77. Ordinarily, however, trial courts comment on evidence only sparingly, if at all, the better to assure that the ultimate determination of facts is made by the jury. See L. Arnold, 32 New Jersey Practice, Criminal Practice and Procedure § 981 (2d ed. 1980). The rare situation in which a trial court exercises its discretion to delve into the facts is usually one in which the evidence is complex or the potential for confusion is great; and when that situation occurs, any comment must be designed to avoid unduly influencing or otherwise invading the province of the jury. In this case, the evidence was not overly complex or confusing, and the trial
court was well within its discretion in choosing not to comment on the evidence. We find no error.
V.
Sentencing Issues
A. Jury Waiver
Biegenwald claims reversible error in the trial court's denial of "defendant's fundamental constitutional right to trial by jury" during the sentencing proceeding under the Act. He moved before the trial court to waive the jury in the sentencing phase of his trial, claiming that "the massive publicity generated by his trial" precluded his receiving a fair and just sentence. (We note that under this point heading defendant does not make a "pretrial publicity" argument, which is made in another context. See supra at 30-37.)
Although defendant signed a written waiver relinquishing his right to a jury trial for the separate sentencing phase, the prosecutor refused to consent to a non-jury trial. Under the Act, such consent is required in order for defendant to waive sentencing by jury. Section c(1) of the Act states:
The court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or pursuant to the provisions of subsection b. of this section. Where the defendant has been tried by a jury, the proceeding shall be conducted by the judge who presided at the trial and before the jury which determined the defendant's guilt except that, for good cause, the court may discharge that jury and conduct the proceeding before a jury empaneled for the purpose of the proceeding. Where the defendant has entered a plea of guilty or has b
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