State v. Fortin2/3/2004
the jury's responsibility to decide whether a defendant shall live or die.'" Id. at 524 (quoting Bey II, supra, 112 N.J. at 162). " e are especially sensitive to ensuring the correctness of jury instructions concerning the jury's balancing of aggravating and mitigating factors because that balancing represents the core of the jury's function in the penalty phase." Ibid. "The need for clear verdict sheet directions is no less important" because " f verbal instructions are unclear, or if jurors do not fully comprehend verbal instructions, the typewritten verdict sheet is likely the primary road map they will use to direct their deliberative path." Nelson II, supra, 173 N.J. at 449. Given the requirement for "enhanced 'reliability in the determination that death is the appropriate punishment in a specific case,'" Bey II, supra, 112 N.J. at 162 (quoting Caldwell v. Mississippi, 472 U.S. 320, 330, 105 S.Ct. 2633, 2640, 86 L.Ed. 2d 231, 240 (1985)), "there must be little chance that the jury as a whole, or even an individual juror, is confused about the process." Koskovich, supra, 168 N.J. at 526.
Defendant did not object to the jury charge at the time it was given; therefore, any challenge to the charge must come under the plain error standard. State v. Josephs, supra, 174 N.J. at 98; see State v. Chew, 150 N.J. 30, 82 (1997) (Chew I) (noting that defendant must establish "'clear'" or "'obvious'" error affecting "'substantial rights'" to establish plain error) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed. 2d 508, 519 (1993)), cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed. 2d 493 (1999). Even under that standard, however, " s an indication of the paramount importance of accurate jury instructions, we have held that erroneous instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002) (Marshall IV) (citing State v. Martin, 119 N.J. 2, 15 (1990)).
We conclude that the jury instructions and verdict sheet suffered from many of the infirmities discussed in Koskovich and Nelson II. As in Koskovich, supra, the court below did not "explicitly inform the jurors that if the jury as a group rejected an aggravating factor, no one juror could consider that factor during the weighing process, even if he or she voted for that factor individually." 168 N.J. at 524. In addition to the lack of a "clear and explicit instruction" on the non-role of a rejected aggravating factor, id. at 525, here "the verdict sheet did not fail simply to clarify the law; it exacerbated the ambiguity by suggesting the consideration of aggravating factors not unanimously found." Nelson II, supra, 173 N.J. at 454. One juror, presumably the single juror who found the 4(f) aggravating factor to be established beyond a reasonable doubt, proceeded to erroneously balance that rejected factor against defendant's mitigating factors.
In view of our reversal of defendant's conviction, we need not determine whether the imperfect charge and the ambiguous verdict sheet combined to meet the plain error standard. The Model Jury Charge has been modified to encompass our holdings in Nelson II and Koskovich:
In order for the jury to find an aggravating factor, all jurors must unanimously agree, beyond a reasonable doubt, that the aggravating factor is present. If one or more of you do not agree that the aggravating factor is present, the jury is deemed not to have found that aggravating factor and no juror is permitted to consider that factor or any evidence introduced solely in support of that aggravating factor during the process of weighing aggravating against mitigating factors. In other words, if eleven jurors found that an aggrav
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