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State v. Biegenwald3/5/1987
rdy and fundamental fairness to retry defendant for the purpose of seeking to impose the death penalty.
The State's theory was that the murder was committed under circumstances that demonstrated " 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," constituting the aggravating factor c(4)(c). The prosecutor relied primarily if not exclusively upon evidence of "an aggravated battery" to establish that the crime was "outrageously or wantonly vile, horrible or inhuman." The majority sets aside the jury verdict finding that the murder was outrageously or wantonly vile, horrible or inhuman because it was based upon insufficient evidence of aggravated battery. Nevertheless, the Court authorizes a retrial of defendant to enable the State once again to try to establish that the homicide was a c(4)(c) capital murder.
The State should not be permitted to retry the defendant for a crime as to which we have ruled the evidence at the first trial was insufficient. Double jeopardy principles clearly prohibit the State from retrying a defendant for the same crimes based upon evidence that was itself insufficient. This is firmly established as a matter of federal double jeopardy doctrine. See, e.g., Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). We have similarly recognized the bar of double jeopardy against successive prosecutions for essentially the same crime. State v. Tropea, 78 N.J. 309 (1978); State v. Lynch, 79 N.J. 327 (1979). Double jeopardy as a matter of federal constitutional law also has been held to apply to the specific context of the sentencing phase of a capital murder trial. See Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981).
The Court, however, determines that there was other evidence to establish c(4)(c), namely, evidence constituting "depravity of mind." But because this evidence was improperly presented to the jury to support the aggravating factor c(4)(c), the Court sets aside the jury's finding of the aggravating factor. The Court concludes that a retrial to establish a c(4)(c)
murder relying on this evidence would not run afoul of double jeopardy. I disagree.
To allow the State in this case another opportunity to establish defendant's homicide as c(4)(c) capital murder would be to retry defendant for the same crime that was the object of the first prosecution. I think it is indisputable that under our capital murder-death penalty statute the aggravating factors are essential elements of the crime of capital murder. Unless a murder is shown to have been committed under circumstances constituting an "aggravating factor" under the death penalty statute, it will not constitute "capital murder" for which the death penalty may be imposed. As I pointed out in my dissenting opinion in Ramseur: "The aggravating factors act as specifications of the class [of capital murder]; they form, in effect, elements of the offense defendant must have committed to come within the class." Ramseur, supra, 106 N.J. at 393 (Handler, J., dissenting) (emphasis added). The majority itself recognizes that the aggravating factors constitute elements of the offense of capital murder, "that functionally the aggravating factors in the Act are indistinguishable from the elements of a crime." Ramseur, supra, 106 N.J. at 226 n. 27. See Arnold v. State, 236 Ga. 534, 224 S.E. 2d 386 (1976); State v. Silhan, 302 N.C. 223,
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