State v. Biegenwald3/5/1987
2d 369 (1983); State v. Teague, 680 S.W. 2d 785 (Tenn.1984).
Numerous questions may arise on resentencing, questions that are best answered initially at the trial level, and best determined by an appellate court on a full record. In the interest of judicial economy, however, we will provide some tentative directions, guidance and suggestions.
The Act is silent with respect to proceedings on retrial. The major question is whether to attempt to impanel the same jury that heard the case originally or to select a new jury. While the original jury has the advantage of having heard the testimony at the guilt phase of the trial (thereby avoiding the necessity of repeating some of that testimony), the disadvantages far outweigh the advantages. Even as to the supposed "advantages," the time lag between the original trial of the guilt phase and the retrial of sentencing phase may be so long as to raise a question about the initial jury's ability to remember that testimony. Intervening events would be a subject of careful examination on voir dire in order to assure that they have not prejudiced any of the original jurors, as well as to ascertain whether any juror's mind had become unalterably fixed on the question of the sentence. We believe that these objections -- not to mention the problems that may arise simply in locating and impaneling the original jury -- are almost insuperable. We therefore conclude that a new jury must be selected. See State v. Finnell, 101 N.M. 732, 688 P. 2d 769, 772, cert. den., 469 U.S. 918, 105 S. Ct. 297, 83 L. Ed. 2d 232 (1984); Watkins v. Commonwealth, 229 Va. 469, 331 S.E. 2d 422, 431 (1985), cert. den., U.S. , 106 S. Ct. 1503, 89 L. Ed. 2d 983 (1986); Hopkinson
v. State, 664 P. 2d 43, 84 (Wyo.), cert. den., 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (1983).
It seems clear that, where the witnesses are available, the State is required to present testimony through them rather than by offering a transcript of their testimony at the original trial. See State v. Arnett, 125 Ariz. 201, 608 P. 2d 778, 780 (1980). Ordinary rules of hearsay call for such live testimony. See Evid.R. 63(3). While the Act's reference to the State's obligation to comply with the Rules of Evidence (see L. 1985, c. 178) presumably contemplates the initial trial, there is no reason why this obligation should not also be applicable to resentencing. Therefore both the hearsay rule itself and the Act require live testimony where the witness is available. There likewise seems to be no reason why the Act should not also be used in determining the form of evidence to be presented by defendant. The Act allows proof of mitigating circumstances without regard to the Rules of Evidence. L. 1985, c. 178. We therefore conclude that defendant has the option of presenting either live testimony or transcripts of testimony even where the witness is available. Under those circumstances, however, the rule allowing the State to rebut such ordinarily inadmissible testimony without regard to the Rules of Evidence (L. 1985, c. 178) should also apply.
Since the retrial is limited to resentencing, the only admissible evidence is that relevant to the issue, namely, evidence of aggravating and mitigating factors. Retrial of issues relevant only to guilt is not permitted. While defendant may lose whatever advantage inheres in the "residual doubts" that the original jury may have had regarding defendant's guilt, see Lockhart v. McCree, 476 U.S. , , 106 S. Ct. 1758, 1769, 90 L. Ed. 2d 137, 153 (1986), the State may also lose whatever "advantage" inheres in the emotional impact that often surrounds the initial guilt phase. A substantial amount o
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