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State v. Biegenwald3/5/1987
orrect instruction concerning the meaning and application of an aggravating factor critical to the determination of capital murder and did not properly instruct the jury as to the establishment and weighing of aggravating and mitigating factors, which errors created sufficient prejudice to require reversal of the death sentence and a remand for a resentencing trial at which defendant will face again the prospect of the death penalty.
I differ from the Court as to the constitutionality of the capital murder-death penalty statute. I expressed the opinion in Ramseur that the Court must examine the constitutional issues in terms of both the federal and State Constitutions. Particularly, the Court must analyze and apply state constitutional principles because federal constitutional doctrine relating to capital punishment is seriously flawed and because state sovereign concerns relating to the death penalty markedly outweigh any national interest in capital punishment or other concerns of federalism. I reasoned that state constitutional principles place the highest value on individual life and require the greatest protections when life itself is at stake; these principles, enhanced by considerations of fundamental fairness,
impel the conclusion that the capital murder-death penalty statute is violative of state constitutional standards prohibiting cruel and unusual punishment and mandating due process. Because these major constitutional issues were fully considered by the majority and dissenting opinions in the Ramseur case, and are not further treated by the Court in this case, I have not here again addressed the constitutionality of the capital murder-death penalty statute.
In addition to differing sharply from the Court on constitutional grounds, I cannot agree with its determination that defendant's murder conviction was not severely prejudiced by intense adverse pretrial and trial publicity, which was materially exacerbated by prosecutorial misconduct and was not cured by a change of venue or corrected by an adequate voir dire examination of jurors. I agree with the reasoning of the majority that reversible error occurred with respect to the trial court's instructions on sentencing. However, because of the evidentiary insufficiency and incorrect charge relating to a material element of capital murder, namely, the aggravating factor of c(4)(c), I believe that the reversal of defendant's death penalty sentence should be deemed an acquittal on the death sentence and constitute a bar to another trial seeking the death penalty.
These issues are the subject of this dissenting opinion. I address first the nature and extent of the adverse pretrial publicity, noting particularly its impact upon the selection of jurors. I then consider whether defendant was entitled to a change of venue, emphasizing the heightened standards governing the right to a fair and impartial jury in a prosecution for capital murder. This concern requires consideration of whether the voir dire examination was adequate to overcome the effects of prejudicial pretrial publicity and to assure defendant's right to a fair and impartial jury in light of the fact that the trial court refused to change the venue of the trial. Finally, I review the grounds for reversing defendant's death sentence and consider whether defendant, under state constitutional principles
of double jeopardy and fundamental fairness, can again be tried for the purpose of imposing the death penalty.
I.
Defendant claims that he was denied a fair trial before an impartial jury due to massive prejudicial pretr
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