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State v. Biegenwald3/5/1987
275 S.E. 2d 450 (1981). "Capital murder" embraces a unique degree or quality of culpability. The level or quality of culpability for capital murder is defined by the "aggravating factors." Hence, under the Code of Criminal Justice aggravating factors are "element of an offense", defined by the Code to mean the "conduct" or "attendant circumstances" "as stablishes the required kind of culpability." N.J.S.A. 2C:1-14h. See State v. Goodman, 92 N.J. 43 (1983).
Under well-settled principles of double jeopardy, the subsequent prosecution for an offense that is based upon the same elements involved in an earlier prosecution is barred. See State v. Dively, 92 N.J. 573 (1983). Here there is no material difference
as to the elements of the crime that will be retried -- it is capital murder as defined by the aggravating factor of c(4)(c).
The State should not succeed in its argument that on retrial it seeks to rely on evidence of "depravity of mind" rather than of "aggravated battery" to establish c(4)(c). That cannot make a difference in this case. To the extent the evidence earlier relied on was found to be insufficient to support an aggravating factor that would elevate murder to capital murder, the result must be deemed to have been an acquittal of the death penalty, surely barring a retrial to reestablish that aggravating factor. See Bullington v. Missouri, supra, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270. With respect to the contention that the State will rely on other -- sufficient -- evidence on a retrial, the answer to this assertion is that the State still seeks to retry defendant for the same crime, namely, a c(4)(c) murder. Double jeopardy applies here because it applies to bar a successive prosecution of either the same crime and or a crime that has the same elements of the earlier offense. See State v. Dively, supra, 92 N.J. 573. It may be that the evidence to prove that a murder is "vile, horrible or inhuman" may vary. It can consist of proof of torture, or depravity of mind, or aggravated battery. Nevertheless, the crime itself is not different depending on differences in evidence; in other words, c(4)(c) capital murder has but one essential element or "aggravating factor." Thus, just as the State may not in any other context retry a defendant for the same crime, the State should not in the context of a capital murder prosecution be given an opportunity to retry defendant for purposes of establishing the same aggravating factor.
I am convinced that the views articulated by Justice Marshall in his dissent in Poland v. Arizona, U.S. , 106 S. Ct. 1749, 90 L. Ed. 2d 123 (1986), express the principles of double jeopardy that must apply, under our State Constitution, in a capital murder prosecution in these circumstances. There, as here, aggravating factors function as specifications of the class of capital murder and, in effect, form elements of the offense.
The Supreme Court held that a resentencing hearing in a capital case is not barred by double jeopardy when the appellate court rejects the sole aggravating factor found by the sentencer; the Court ruled that the failure of the sentencer to find other alleged aggravating factors is not an "acquittal" of these factors for double jeopardy purposes. In dissent, Justice Marshall stated: "In no other circumstance would the Double Jeopardy Clause countenance the offer of a second chance to the State and the trial judge to find a better theory upon which to base a conviction." Id. at , 106 S. Ct. at 1758, 90 L. Ed. 2d at 136 (Marshall, J., dissentin
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