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State v. Biegenwald3/5/1987
at 198-211. Under our interpretation of Section c(4)(c) there was insufficient evidence for the jury to consider that the murder of Anna Olesiewicz was accompanied by either an aggravated battery or torture. Assuming the State claimed the defendant's acts fell within this Court's definition of "depravity of mind," the trial court could have instructed the jury as follows:
The State claims that the killing of Ms. Olesiewicz involved depravity of mind. If you unanimously find beyond a reasonable doubt that it did, then your answer shall be yes to that question on the jury sheet "That this murder involved depravity of mind." In order to find that the killing involved depravity of mind, you must find that defendant killed his victim without any purpose or
meaning because he had no reason for killing Ms. Olesiewicz other than wanting to kill.
These instructions should also direct the jury to consider all the circumstances of the murder in determining the defendant's intent, because a defendant may not state his or her motive for killing.
The charge here failed to conform this section of the statute with constitutional requirements, and this failure would be reversible error had it been raised either at trial or on appeal. Since the sentencing proceedings are to be retried in any event, we need not decide whether, despite such failure, the matter would be reversed on our own motion because of this error.
What we do decide, however, is that, contrary to our dissenting colleague's assertion, on retrial of the sentencing proceedings the State should not be foreclosed by considerations of double jeopardy from arguing the existence of aggravating factor c(4)(c). The jury should be permitted to consider that aggravating factor to the extent that it includes as one of its elements "depravity of mind" as we have defined it today. And only to that extent: we agree that the State will not be permitted to argue that the evidence warrants a finding that either an "aggravated battery" or "torture" of the victim satisfied the requirement of c(4)(c), for we have already determined that under a correct view of these factors the evidence was insufficient to go to the jury. To allow the State another opportunity to produce evidence of an "aggravated battery" or "torture" that it failed to muster at the original proceedings would run counter to fundamental double jeopardy principles. See State v. Tropea, 78 N.J. 309, 316 (1978) (citing Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978)).
That is not to say, however, that on retrial the jury should not be entitled to consider whether there is sufficient evidence of "depravity of mind" to justify imposition of the death sentence based on that element of c(4)(c). Although the State's
argument may have focused on Biegenwald's commission of an "aggravated battery," the trial court charged -- and at the jury's request recharged -- that in order to satisfy c(4)(c), only one of these conditions, namely, torture, depravity of mind, or an aggravated battery, had to exist. The jury concluded that aggravating factor c(4)(c), as well as c(4)(a), had been established beyond a reasonable doubt; but the verdict does not reveal which feature or combination of features of c(4)(c) the jury accepted. It may well have concluded that "depravity of mind" had been demonstrated, but if so, it reached that conclusion on the basis of an improper charge. As we have demonstrated, the trial court's instructions on c(4)(c)
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