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State v. Fortin2/3/2004
o consider the very subject that it was expressly forbidden to discuss. See Nelson II, supra, 173 N.J. at 447 (" here can be no assumption that the jury did not faithfully follow the [court's] admonition.") (quoting State v. Manley, supra, 54 N.J. at 271). We conclude that there was no error in the charge.
XI. Submission of Aggravating Factors to Grand Jury
Defendant urges this Court to reconsider its decision in Martini I, supra, which held that the New Jersey Constitution does not require aggravating factors to be submitted to a grand jury in a capital case. 131 N.J. at 228. In Martini I, the Court rejected the theory that "aggravating factors are the functional equivalent of elements of the crime of capital murder, thereby necessitating their presentment to a grand jury and inclusion in an indictment." Id. at 222-23 (emphasis added). Defendant argues that the legal landscape upon which Martini I rests has been so altered that the rationale supporting the decision is no longer viable.
Since our decision in Martini I, the United States Supreme Court in Ring v. Arizona declared unconstitutional Arizona's capital sentencing law that delegated to the judge rather than the jury the determination whether to impose the death penalty based on the finding of aggravating factors. 536 U.S. 584, 588- 89, 122 S.Ct. 2428, 2432, 153 L.Ed. 2d 556, 564 (2002). The Court in Ring held that " ecause Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury." Id. at 609, 122 S.Ct. at 2443, 153 L.Ed. 2d at 577 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S.Ct. 2348, 2365 n.19, 147 L.Ed. 2d 435, 457 n.19 (2000)) (emphasis added). Ring did not address the question whether aggravating factors in a capital case must be considered by a grand jury pursuant to the Fifth Amendment. Id. at 597 n.4, 122 S.Ct. at 2437 n.4, 153 L.Ed. 2d at 569 n.4. Under Article I, Paragraph 8 of our State Constitution, however, the State must present proof of every element of an offense to the grand jury and specify those elements in the indictment. Martini I's conclusion that a capital aggravating factor does not constitute an essential element of capital murder no longer has validity in the wake of Ring. In view of this new reality, we can see no principled reason for our continued adherence to the notion that aggravating factors are not elements of capital murder. In all future cases, in accord with our State Constitution, aggravating factors in a capital case must be submitted to a grand jury.
Our State Constitution guarantees that " o person shall be held to answer for a criminal offense" unless charged by a grand jury in the form of an indictment. N.J. Const. art. 1, 8. That constitutional provision requires that the State present to the grand jury proof to support every element of the offense before the return of an indictment and that every element must be alleged in the indictment. State v. Hogan, 144 N.J. 216, 227 (1996); State v. Wein, 80 N.J. 491, 497 (1979). In the absence of such proof, the indictment is subject to dismissal. See State v. La Fera, 35 N.J. 75, 81 (1961).
Although the legislative determination of what constitutes the elements of an offense is entitled to considerable weight, "a State cannot through mere characterization change the nature of the conduct actually targeted." Apprendi, supra, 530 U.S. at 493 n.18, 120 S.Ct. at 2364 n.18, 147 L.Ed. 2d at 457 n.18.
Stated differently, the State cannot clothe an element as a sentencing factor in an effort to elude the right to trial by jury. See Ring, supra, 536 U.S. at 605, 122 S.Ct. a
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