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State v. Biegenwald3/5/1987
nhuman are justified." In other words, the trial court simply reiterated the language of the statute, without further definition or explanation. Moreover, the court did not explain what constitutes aggravated battery.
After deliberating for an hour, the jury requested an additional explanation of aggravating factor c(4)(c). The court replied that in order to satisfy c(4)(c), only one of the three conditions -- torture, depravity of mind, or an aggravated battery -- had to exist. After several more hours, the jury returned
a verdict. The jury found that both of the charged aggravating factors existed beyond a reasonable doubt. As to mitigating factors, it found that the defendant was not under the influence of extreme mental or emotional disturbance, but that his capacity to appreciate the wrongfulness of his act or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect. In addition, the jury found that another factor or factors relating to the defendant's character or record or to the circumstances of the offense also constituted a mitigating factor. Finally, the jury found that neither aggravating factor was outweighed by the combination of mitigating factors. Consistent with the trial court's instructions, this verdict led to a sentence of death.
The theory of the prosecution in this case was that the aggravating factor of c(4)(c) was satisfied because the murder was accompanied by an aggravated battery. This Court now rules that "aggravated battery" means serious physical harm or severe pain to the victim by means of an act that precedes death and does not serve to cause death instantaneously. See State v. Ramseur, supra, 106 N.J. at 207-209. The Court concludes that the evidence of an aggravated battery was insufficient. I agree.
Contrary to the State's contention, under the facts of the present case, evidence of four bullet wounds to the head is insufficient to establish an aggravated battery for purposes of determining capital murder. In Patrick v. Georgia, 449 U.S. 988, 101 S. Ct. 522, 66 L. Ed. 2d 285 (1980), the Supreme Court vacated the defendant's death sentence where the defendant struck the victim six times in the head, but it was impossible to tell which blow killed him; the Court ruled that there was insufficient evidence of battery. The majority properly holds that there was insufficient evidence of an aggravated battery for the jury to conclude that the aggravating factor of c(4)(c) was established. Ante at 50. [106 NJ Page 101] Nevertheless, the Court rules that there was sufficient evidence to show that the defendant committed this murder with "depravity of mind," and that this would satisfy aggravating factor c(4)(c). In the companion case of State v. Ramseur, supra, 106 N.J. 123, the majority explains that "depravity of mind" can consist of several states of mind or mental conditions, and can be found without any evidence of torture or an aggravated battery. Id. at 208-210. In this case, the Court would define depravity of mind as existing when "the only purpose defendant had in killing the victim was to enjoy the act of killing itself and that he had no other reason for killing Ms. Olesiewicz other than wanting to kill." Ante at 50. For the reasons expressed in my dissenting opinion in Ramseur, I believe that the Court's definition of "depravity of mind" is utterly vague and incapable of reliable and consistent application. Ramseur, supra, 106 N.J. at 400-402 (Handler, J., dissenting). Be this as it may, under the circumstances of this case, I am satisfied that it would violate double jeopa
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