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State v. Biegenwald3/5/1987
nclusion that " he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right." Id. at 34-35, 85 S. Ct. at 790, 13 L. Ed. 2d at 638. The Court concluded:
In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury -- the very thing that the Constitution guarantees him.
[ Id. at 36, 85 S. Ct. at 790, 13 L. Ed. 2d at 638.]
This Court has adopted the same position in State v. Belton, supra, 60 N.J. 103: "The restriction against a unilateral waiver
of jury trial by the accused presents no constitutional infirmity." Id. at 110 (citing Singer v. United States, supra, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 633).
The United States Supreme Court has recently held that in capital sentencing whether a judge or jury shall make the ultimate decision may be determined by state statute. In Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984), the Supreme Court reviewed Florida's capital sentencing statute, which permits the trial court to override a jury's recommendation for life imprisonment. The Court addressed the issue of whether the "capital sentencing decision is one that, in all cases, should be made by a jury," id. at 458, 104 S. Ct. at 3161, 82 L. Ed. 2d at 351, and the Court recognized the fact that "despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding -- a determination of the appropriate punishment to be imposed on an individual." Id. at 459, 104 S. Ct. at 3161, 82 L. Ed. 2d at 352.
As the Court indicated, the primary question should not be who makes the sentencing decision, but how that decision is made: " he sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant. . . ." Id. at 459, 104 S. Ct. at 3161, 82 L. Ed. 2d at 351 (emphasis added). The Act meets that obligation. See Sec. c(5)(h). We can find no constitutional infirmity in its decision not to give a defendant an automatic right to insist on a non-jury determination of the sentencing issues.
B. Aggravating Factor c(4)(c) as Applied to Defendant
While defendant does not claim any error in the court's charge on aggravating factor c(4)(c) (" he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"), we treat the issue on our own motion because of its potential importance in other cases.
The trial court first quoted the factor. Based on our construction, the trial court should not quote the statute since the initial part of it serves no function under our definition. See State v. Ramseur, supra, 106 N.J. at 211. It will serve only to confuse the jury to tell it that it must find that the murder was "outrageously or wantonly vile, horrible or inhuman," and then later instruct the jury to disregard that portion of t
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