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State v. Fortin2/3/2004
tor against the mitigating factors. The verdict sheet also suggested that the forbidden subject of the rejected aggravating factor may have been discussed in the final phase of the penalty deliberations. Defendant's trial ended before this Court decided Nelson II, supra, 173 N.J. at 442, and State v. Koskovich, 168 N.J. 448, 524 (2001), which squarely held that a rejected aggravating factor is entitled to no further consideration by any juror in the sentencing process. In light of our decision to reverse, we take this occasion to reaffirm that principle and repeat the guidance we have given to the trial courts for future cases.
In the penalty phase, the State presented three aggravating factors: murder involved aggravated assault and/or torture, N.J.S.A. 2C:11-3c(4)(c); murder committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant, N.J.S.A. 2C:11-3c(4)(f); and murder committed while defendant engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery and/or sexual assault, N.J.S.A. 2C:11-3c(4)(g). The jury unanimously found that the State had proven the existence of the 4(c) and 4(g) aggravating factors beyond a reasonable doubt. The jury, by a vote of eleven-to-one, rejected the existence of the 4(f) aggravating factor. Thus, the jury was authorized to weigh only the (4)(c) and (4)(g) aggravating factors against the mitigating factors submitted by defendant. See Nelson II, supra, 173 N.J. at 442-43; Koskovich, supra, 168 N.J. at 519 (citing Bey II, supra, 112 N.J. at 159). As noted, the court failed to instruct the jury explicitly that all jurors must disregard any aggravating factor not unanimously found by the entire jury.
The lack of clarity in the verdict sheet underscored the importance of such an instruction. The language of the verdict sheet in this case was identical to the "ambiguous wording" of the one discussed in Nelson II, supra, 173 N.J. at 445-46. The verdict sheet read: "If you have unanimously found more than one aggravating factor present, then indicate as to each such factor whether it by itself outweighs the mitigating factors beyond a reasonable doubt." After deliberations, the jury returned the completed verdict sheet:
Aggravating Factor "a"
[(4)(c)]
NO (11) YES (1)
NO (0) Yes (12)
Defense counsel did not object at any time to the court's instructions on the weighing process or to the verdict sheet.
NO (0) YES (12)
Aggravating Factor "b"
[(4)(f)]
Aggravating Factor "c"
[(4)(g)]
Upon the return of the special verdict sheet, the trial court did not ask the jury for a clarification of its answers.
The verdict sheet reveals that all twelve jurors found that the 4(c) and 4(g) aggravating factors outweighed the mitigating factors beyond a reasonable doubt. But it also shows that one juror found that the rejected 4(f) aggravating factor outweighed the mitigating factors beyond a reasonable doubt. That aggravating factor should not have received any consideration in the final weighing process. In view of the fact that a rejected aggravating factor played some role in those final deliber ations, we do not know to what extent it may have infected the weighing process of those factors properly considered by the jury.
This Court has emphasized that "'clear and correct jury instructions are essential for a fair trial,'" Koskovich, supra, 168 N.J. at 507 (quoting State v. Brown, 138 N.J. 481, 522 (1994)), and are "'even more crucial in a capital case because of
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