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State v. Fortin2/3/2004
belief that convicted killers will serve prison terms below mandatory minimum for parole and will get out of prison "far too soon").
No one disputed that the life-without-parole provision of N.J.S.A. 2C:11-3b(4) imposes a more severe sentence than the previous law of life with a minimum parole disqualifier of thirty years. The State and defendant agreed that the Ex Post Facto Clause barred the application of the life-without-parole provision unless waived by defendant. Defendant informed the court that he would waive any ex post facto challenge to the application of the new provision. The State, however, declined to consent to defendant's application. The trial court ruled that defendant could not waive an ex post facto objection to N.J.S.A. 2C:11-3b(4) and, therefore, refused to instruct the jury in accordance with the new statute. The trial court never squarely addressed whether the Legislature intended N.J.S.A. 2C:11-3b(4) to apply to defendant's penaltyphase proceedings.
At a hearing prior to the penalty-phase trial, the court "recognize the tactical advantage to [defendant] to present to a jury... that at the minimum he is going to serve a life imprisonment with no possibility of parole." The court denied defendant the benefit of the new statute for two reasons. First, the court stated that despite defendant's willingness to waive application of the Ex Post Facto Clause and to waive the right to any appeal arising from giving a life-without-parole instruction to the jury, future appellate counsel might not abide by defendant's decision. Second, the trial court voiced apprehension that the Commissioner of the Department of Corrections might not carry out the jury's mandate of a life without-parole sentence if the Commissioner disagreed with the court's decision to permit waiver of the protections of the EX Post Facto Clause. Despite defendant's willingness to subject himself to life imprisonment with no possibility of parole, the court instructed the jury that defendant potentially could be released from prison in thirty years.
In deciding whether the trial court properly exercised its discretion, we must determine whether the Legislature intended N.J.S.A. 2C:11-3b(4) to extend only to those capital murders committed after the statute went into effect or to all capital murders reaching the penalty phase after its effective date. If the statute was not intended to apply to capital murders that occurred before the enactment, then the inquiry ends. On the other hand, if the statute was intended to apply to that category of cases, its reach would be limited to those in which the defendant waived the constitutional protection of the EX Post Facto Clause. That raises the additional question of whether the defendant is empowered, without the consent of the State or the court, to waive that constitutional right. We first examine whether N.J.S.A. 2C:11-3b(4), after its effective date, applies to all penalty-phase trials, including those capital murder defendants willing to waive protection of the EX Post Facto Clause.
Whenever interpreting legislation, we begin by looking at the statutory language to divine its meaning. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 231 (1998). Here, the language of the statute does not provide an answer because the legislative direction that the "act shall take effect immediately" is insolubly ambiguous. Because the words of the statute are susceptible to different interpretations, we must look to other aids of statutory construction that shed light on legislative intent, "such as the statute's purpose, legislative history, and statutory context." Township of Pennsauken v. Schad, 160 N.J. 156, 170 (1999). The legislative history is scant an
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