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State v. Fortin2/3/2004
vating factors are also elements of the crimes charged. In such a case, the trial court, as always, will read all of the elements of the crimes charged in the indictment. The purpose is to prevent irrelevant and prejudicial information from tainting the guilt-phase trial. This simple rule follows from our precedent in cases in which counts in an indictment are bifurcated into separate trials. See, e.g., State v. Ragland, 105 N.J. 189, 193 (1986). In any case in which the same jury is empanelled in the guilt and penalty phases of a capital case, the trial court 23af without reference to the indictment 23af must advise the prospective jurors of the alleged aggravating factors during jury selection to permit voir dire on those factors.
Our holding today applies only to those cases that have yet to reach the penalty-phase. In those capital cases yet to be tried, the State must present the aggravating factors to the grand jury, which then may return a supplemental indictment specifying those factors the defendant will face at a penalty trial. By this opinion, we in no way intend to limit the flexibility of the Attorney General or prosecutors as they go about the difficult task of deciding which murder cases merit a capital prosecution. Prosecutors have the discretion to present a criminal homicide case to the grand jury at one hearing while continuing to review the circumstances that bear on classifying the case as capital murder. In such cases in which there is a later decision to prosecute the case as capital murder, the State may submit the aggravating factors to the grand jury and seek a supplemental indictment. We leave these matters to the judgment of the executive branch. Nevertheless, we expect that any such decision will be made at an early stage after indictment so as not to cause prejudicial delay.
XII. Conclusion
In light of our decision to reverse, we find no need to address the other issues raised by defendant. We remand for proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, and ZAZZALI join in JUSTICE ALBIN's opinion. JUSTICE VERNIERO filed a separate opinion concurring in part and dissenting in part in which JUSTICE LaVECCHIA joins.
JUSTICE VERNIERO, concurring and dissenting.
I join the Court in setting aside defendant's conviction and death sentence and concur in all but two narrow aspects of its opinion. The first issue concerns whether the State is required to submit aggravating factors to a grand jury to be included in a capital indictment. I start with a fundamental premise that this Court should direct the co-equal branches of government to alter existing statutory practices only when federal or a superior State law requires that direction. There is no such mandate to compel that result today. Accordingly, I would affirm the long-standing practice of having prosecutors serve notice of aggravating factors on a defendant in a capital case, a straightforward statutory procedure that provides fair notice to an accused in this setting.
This Court in State v. Martini squarely rejected the argument that, as a matter of State law, aggravating factors are elements of capital murder subject to the indictment requirement. 131 N.J. 176, 222-28 (1993). In reaching our holding, we specifically acknowledged but were not persuaded by the notion that, in every case, aggravators should be considered the "functional equivalent" of elements. Id. at 225-26.
Although two members dissented on other aspects of the Court's decision, the dissenters registered no disagreement on the indictment question. Id. at 324-68 (Handler, J., dissenting) (disagreeing with majority on certain issues but
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