State v. Biegenwald

524 A.2d 130, 106 N.J. 13, 1987 N.J. LEXIS 287

• Court: Supreme Court of New Jersey
• Decided: March 5, 1987
• Status: Published

Opinions

The opinion of the Court was delivered by

WILENTZ, C.J.

Defendant, Richard Biegenwald, was convicted of murder and sentenced to death by a Monmouth County jury and judge in December 1983. He appeals directly to this Court as of right. See R. 2:2-l(a)(3). We affirm defendant’s murder conviction. Because the trial court failed to instruct the jury properly in the sentencing phase, however, we must reverse the sentence of death and remand for a new sentencing proceeding.

I.

Facts

On the night of August 27, 1982, eighteen-year-old Anna Olesiewicz and a friend, Denise Hunter, drove from Camden to Neptune City planning to stay at Denise’s uncle’s house. They went over to the Asbury Park boardwalk. Olesiewicz and Hunter sat on a boardwalk bench to listen to the music coming out of a nearby club. Hunter left for a short while to use a bathroom, and when she returned, she found that Olesiewicz was no longer on the boardwalk bench where she had left her. After she failed to find Olesiewicz, Hunter returned to her uncle’s home and filed a missing persons report the next morning.

On January 14, 1983, the skeleton of a female body was discovered in a vacant lot behind a fast food restaurant on Route 35 in Ocean Township. By matching dental charts, authorities identified the body as that of Anna Olesiewicz. When the body was discovered, it was clothed in the items Olesiewicz was last seen wearing—blue jeans and a dark shirt—except that a black and gold ring was missing from her finger. In the skull were four bullet holes, and three of the bullets were lodged within the skull. Testimony at trial indicated that the victim died as a result of the bullet wounds. It was estimated that death had occurred several months prior to the autopsy. Inadequate tissue remained to enable blood alcohol or chemical tests to be performed on the body.

One week after the body was discovered, twenty-two-year-old Theresa Smith, who had shared an apartment with the defendant, forty-two-year-old Richard Biegenwald, and his wife, Diane, came to the police and recounted a story implicating Biegenwald in the shooting. This story was essentially the same as that to which she testified later at Biegenwald’s trial.

Smith had previously worked as a waitress with Diane Biegenwald and lived with the Biegenwalds from June through October 1982 in a multi-apartment house in Asbury Park. Shortly after she moved in with the Biegenwalds, Smith and the defendant became friends.

Smith told how during the course of their relationship she became the defendant’s protege and he encouraged her to find and kill a “victim” to prove to him that she was “tough.” They discussed that Smith should murder “Betsy,” Smith’s co-worker. On Friday, August 27, the date of Anna Olesiewicz’s disappearance, Smith drove around shore towns with Betsy, having contemplated and discussed with Biegenwald a plan to murder Betsy. Smith, however, called the defendant and told him that she could not go through with the murder plan, and she returned alone to the Asbury Park apartment to sleep. Smith testified that Biegenwald awakened her later that same night, although she did not recall why. Unable to return to sleep, she went to the kitchen, and, looking out the window toward the driveway, saw a “shadow of a body” sitting in the car that Biegenwald had given to her. She returned to sleep.

At the end of the next day Biegenwald took Smith into the garage where he lifted a mattress to show Smith a female body in unzipped jeans, a dark shirt and no shoes. Smith did not see the face because a large green plastic bag covered the head and was secured around the neck. Biegenwald asked Smith to touch the body—to “pick her leg up” and tell him how it felt. The defendant told Smith he had shot the victim in the head after meeting her on the boardwalk, telling her he had marijuana, and taking her back to the house. Biegenwald told Smith that Olesiewicz had been intended to be Smith’s first victim but when he had tried to waken Smith while the victim was still alive, Smith would not get up. Biegenwald removed from the victim’s finger a black and gold ring which one month later he gave to Smith. The next day Biegenwald and Dherran Fitzgerald, a friend of the defendant, who lived in the neighboring apartment, disposed of the body behind the fast food restaurant.

The police arrested the residents of the Asbury Park house— Richard and Diane Biegenwald, Dherran Fitzgerald, his girlfriend, and her daughter—based on Smith’s statement. In the basement of Biegenwald’s apartment the police discovered three weapons, ammunition, and controlled substances later determined to have been stolen from the hospital where Diane Biegenwald worked. The murder weapon was found in Fitzgerald’s apartment as was an extensive cache of weapons. The black and gold ring missing from the victim’s finger was discovered in Diane Biegenwald’s jewelry box. Smith testified that after wearing the ring for several weeks she gave it to Diane Biegenwald. The only ammunition found that fit the .22 Short, the murder weapon, was discovered in a bag near the basement room where Biegenwald slept. The ammunition sales registry at a sporting goods store in Ocean Township showed that both Diane Biegenwald and Dherran Fitzgerald had purchased .22 Short ammunition.

The defendant was indicted by a Monmouth County Grand Jury on May 4, 1983, on ten counts: (1) the murder of Anna Olesiewiez (N.J.S.A. 2C:ll-3a(l), (2))¹; (2) felony murder (Sec. a(3)); (3) armed robbery (N.J.S.A. 2C:15-la); (4) possession of a weapon for an unlawful purpose (NJ.S.A. 2C:39-4a); (5) unlawful possession of a weapon (N.J.S.A. 2C:39-5b); (6) possession of a weapon by a convicted felon (N.J.S.A. 20:39-7); (7) possession of marijuana (N.J.S.A. 24:21-20a(4)); (8) possession of a controlled dangerous substance with intent to distribute (N.J. S.A. 24:21-19a(l)); (9) possession of a controlled dangerous substance (N.J.S.A. 24:21-20a(l)); and (10) unlawful possession of a number of weapons (N.J.S.A. 2C:39-5b, 5d). The sixth count was severed before trial. Biegenwald pleaded not guilty to all counts.

Fitzgerald was initially also charged with the murder of Anna Olesiewiez but this charge was dismissed in exchange for Fitzgerald’s testimony against Biegenwald.

The case received extensive pretrial publicity in the local press. The defendant was linked to possibly four or five previous local murders, most of teenaged girls. Local and regional papers covered the Biegenwald arrest, investigation, and trial extensively, nicknaming him the “thrill killer” because, it was reported, he killed only for pleasure.

Defendant’s attorneys moved for a change of venue, claiming the extensive publicity would not allow Biegenwald a fair trial in the local area. On July 29 this motion was denied, as was a motion to dismiss the indictment based on defendant’s claim that the prosecutor’s actions constituted prosecutorial misconduct. The trial court ordered both sides to cease commenting to the press regarding the indicted matters or others pending indictment.

The trial itself, which began on November 14, was extensively covered in local news reports. The day before the trial, news reports discussed Biegenwald’s prior conviction for murder, repeated the prosecutor’s statements that he killed Olesiewicz because “he wanted to see someone die that night,” and linked Biegenwald to five area murders.²

The venue motion was renewed at the start of the trial. The trial court initially stated that it would refuse to grant the motion unless 250 jurors indicated their inability to be impartial. Counsel did not renew the venue motion after the close of voir dire.

During voir dire the trial court at first sought to determine whether potential jurors’ general views about capital punishment made them unqualified to sit in a capital case. The court initially asked general questions concerning the potential jurors’ exposure to pretrial publicity and refused a defense request to inquire into specific details recalled from the public accounts. Defense counsel objected that the narrow scope of voir dire permitted the seating of jurors who would consider defendant’s other crimes. In response, the trial court began to question those jurors whose answers indicated knowledge of defendant’s background as to the extent of such knowledge. Of the eighty-eight venirepersons questioned about pretrial publicity, the court dismissed thirty-five of the forty-seven who indicated that they recalled specific details of other murders connected to defendant. The court excused only those prospective jurors who specifically indicated that they could not be impartial. Of the twelve remaining jurors who had been exposed to substantial publicity, four were seated over defense challenges for cause. Defense counsel used peremptory challenges to remove these jurors. Every challenge for cause by the defendant was denied, and the court refused to hear challenges for cause at side bar. Defendant’s counsel exhausted all twenty peremptory challenges before the final jury was seated.

Several jurors reported to the trial court that while waiting to be questioned, they had discussed defendant’s case as well as the news reports of his previous conviction and alleged prior murders. The court then instructed the first two jury panels not to discuss the case. When the final jury was selected, at least one member had been identified as a juror who had discussed the case while awaiting voir dire.

At trial the State’s main witnesses were Theresa Smith and Dherran Fitzgerald. Smith testified to what she had told the police in January. Fitzgerald testified about his friendship with Biegenwald, statements made by defendant to him about the murder, and the disposal of the body behind the fast food restaurant.

Biegenwald’s defense was that Fitzgerald, an admitted contract killer, had murdered Anna Olesiewicz. Defendant presented the testimony of three inmates at Trenton State Prison who told essentially the same story. They claimed that Fitzgerald, in prison prior to negotiating his plea arrangement, on seeing news headlines about the murder had bragged that he had killed Olesiewicz. Each of Biegenwald’s witnesses had initiated contact with defense counsel through the mail, having learned of the case in prison. All three said that although defendant did not initiate contact with the witness, the defendant had given them the name and address of his lawyer.

Defendant was found guilty of five counts: murder, possession of a weapon for an unlawful purpose, two counts of possession of a weapon without a permit, and possession of a controlled substance.

Defendant signed a written waiver relinquishing his right to a jury in the penalty phase. However, the prosecutor refused to consent to the waiver, and as his consent is required by Section c(l), sentencing was conducted by the same jury that had determined guilt.

At the sentencing trial, the prosecutor introduced as an aggravating factor evidence of defendant’s 1959 murder conviction, for which he had served seventeen or eighteen years in prison. Sec. c(4)(a). The prosecution also asked that the jury consider as an aggravating factor that the murder of Anna Olesiewicz was “outrageously or wantonly vile, horrible or inhuman in that it involved ... an aggravated battery to the victim.” Sec. c(4)(c).

Defendant sought to establish three mitigating factors: c(5)(a), that defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution; c(5)(d), that his ability to appreciate the wrongfulness of his conduct or to conform it to the requirements of the law was significantly impaired as a result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution; and c(5)(h), any other unspecified factor that was relevant to his character or record or to the circumstances of the offense. Defendant introduced testimony from a forensic psychiatrist that Biegenwald suffered from a severe personality disorder known as anti-social personality with paranoid traits. The psychiatrist explained that Biegenwald was abused as a child and was institutionalized at the age of eight, diagnosed as schizophrenic and given twenty electro-convulsive shock treatments. Biegenwald subsequently entered a state hospital. On returning home he was beaten again by his father, stole from his mother, and routinely escaped from his house for days at a time. At age eighteen he was convicted of a murder committed while robbing a store, for which he served the seventeen or eighteen year prison term. A psychiatrist who had initially been called by the defense in preparation of an insanity defense but had advised counsel that the defendant was not legally insane testified that Biegenwald lacked the emotional capacity to appreciate the wrongfulness of his act or to conform his behavior to the law.

The court instructed the jury that aggravating factors must be found beyond a reasonable doubt but that the jury had to be “satisfied” only that a mitigating factor existed. It instructed that all of the mitigating factors together had to be weighed against each of the aggravating factors alone. It did not instruct that the jury had to be convinced beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors, but charged that if each aggravating factor was not outweighed by the combined mitigating factors, death would be imposed. After a request for clarification, the court explained that the conditions listed in Section c(4)(c) were to be read in the disjunctive. It explained that to find that aggravating factor c(4)(c) existed, the jury had to find that the attack “involved either torture or conduct indicating a depraved mind or that the attack was so savagely outrageously cruel or violent that the adjectives wantonly, vile or horrible or inhuman are justified.” It did not explain what constitutes an aggravated battery.

The jury found both aggravating factors offered by the State to exist beyond a reasonable doubt. The jury found two mitigating factors—that the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect, and that another unspecified factor existed that was relevant to the defendant’s character or record or to the circumstances of the offense. The jury did not find that the defendant was under the influence of extreme mental or emotional disturbance. Finally, the jury found that neither aggravating factor was outweighed by the combined mitigating factors and, accordingly, the court sentenced defendant to death.

II.

Constitutionality of Death Penalty Per Se and of N.J.S.A. 2C:ll-3

Defendant argues that any death penalty law, and hence the Act, inflicts cruel and unusual punishment forbidden by the eighth amendment of the federal Constitution and Article I, paragraph 12 of the New Jersey Constitution. For the reasons given in State v. Ramseur, 106 N.J. 123 (1987), also decided today, we reject this contention.

III.

Pretrial Issues

A. Voir Dire

1. Challenges for Cause at Side Bar

Defendant challenges as reversible error the trial court’s ruling that required challenges for cause to be asserted and explained in open court, in the presence of the challenged juror, rather than at side bar. Defendant contends that the practical effect of the trial court’s ruling was to compel defense counsel to use some of his peremptory challenges to remove jurors who otherwise could have harbored prejudice against defendant.

Defendant cites three instances in which this ruling was applied by the trial court. However, in the case of the first such ruling, the request to assert the challenge at side bar occurred after the challenge was denied. The second instance involved a challenge for cause asserted in open court immediately after a side bar conference. Here, grounds for the challenge were described as being “based upon the statement we just had at side bar,” so that the challenged juror did not hear the grounds for the challenge. Only the third example clearly involved a challenge for cause that the trial court required counsel to assert in the juror’s presence, rather than at side bar.³

In State v. Smith, 55 N.J. 476, 483, cert. den., 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970), we held that the decision to hear challenges for cause at side bar or in open court is one .within the discretion of the trial court. There, counsel initially challenged a juror for cause at the bench. Counsel then asserted his next challenge in open court, claiming later that this was at the court’s direction. After counsel made subsequent challenges for cause without requesting permission to approach the bench, he informed the court that he felt compelled to challenge peremptorily because of the court’s refusal to hear challenges for cause at side bar. The trial court denied having made such a ruling, and permitted later challenges for cause to be made at side bar. We found no improper exercise of the court’s discretion. Id.

Similarly, we are unable to conclude here that the isolated instance during voir dire in which counsel was requested to challenge for cause in open court was so mistaken an exercise of discretion as to warrant reversal. We are not persuaded that every juror unsuccessfully challenged for cause is inevitably biased against the party asserting the challenge. Nor are we convinced that the peremptory challenge subsequently expended against the challenged juror would not have been asserted had the challenge for cause been advanced at side bar rather than in open court.

We are of the view that challenges for cause based on bias or partiality should be asserted at side bar particularly in capital cases. The minimal inconvenience and delay entailed by this procedure are clearly offset by the undesirability of a prospective juror knowing that his presence on the jury is objectionable to one party. In this case, however, the ruling to which defendant objects had a minimal impact on the jury selection process and appears to be confined to one juror, later challenged peremptorily by defendant. Under the circumstances, we do not find that the trial court’s ruling had the capacity to deprive defendant of a fair trial.

2. Counsel Voir Dire Participation

Defendant contends that the trial court’s refusal to permit defense counsel to interrogate the jury during voir dire was prejudicial error. He argues that neither our decision in State v. Manley, 54 N.J. 259 (1969), nor Rule l:8-3(a)⁴ should be construed to prohibit attorney-conducted voir dire in capital cases.

In State v. Manley, supra, 54 N.J. 259, defendant was indicted for first-degree murder. On appeal from his conviction for second-degree murder, defense counsel claimed trial error because of the trial court’s refusal to permit him to propound questions during jury voir dire concerning defendant’s prior criminal conviction. In sustaining the conviction, this Court announced its adoption of the predecessor of Rule l:8-3(a), which was intended to return control of jury voir dire to the trial court and vest in the trial court discretion to permit or restrict supplemental questioning by counsel. Id. at 281-83. Justice Francis, writing for a unanimous Court, expressed in no uncertain terms the reason for the new rule:

In many instances it has taken as long or longer to empanel a jury as to try the case. The impression is inescapable that the aim of counsel is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party’s point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish.

[Id. at 281 (emphasis in original).]

In Manley, supra, 54 N.J. at 283, we modified our holding in State v. Sullivan, 43 N.J. 209, 239-40 (1964), cert. den., 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966), a death penalty case that had permitted more voir dire examination by counsel. The compelling policy reasons for court-controlled voir dire, the Manley opinion’s “call[] for a much more guarded discretion than previously announced in State v. Sullivan, supra, 43 N.J. [at] 239-40,” 54 N.J. at 283, a capital case, and the text of Rule l:8-3(a) persuade us that the holding in Manley was intended to apply, and should apply, in death penalty cases. We note also that the Appellate Division has expressly considered and rejected the contention that State v. Manley, supra, 54 N.J. 259, is inapplicable to capital cases. State v. Howard, 192 N.J.Super. 571 (1983).

Our present Court rule is intended to see that voir dire is conducted to the extent reasonably possible by the court. The trial court is given discretion to permit counsel to supplement the court’s interrogation of jurors by submitting questions to the court and, where the court approves, by additional personal questioning by counsel. See R.1:8-3(a); Manley, supra, 54 N.J. at 282-83. In this case, following the customary practice, the trial court required counsel to submit to it proposed questions for the juror then being interrogated. The court then determined whether or not the question submitted would be propounded to the juror. No instances have been cited to demonstrate that the trial court abused its discretion in refusing to allow questions to jurors.

We reiterate our comments in State v. Williams, 93 N.J. 39 (1983), as to the desirability of searching voir dire interrogation where juror bias is an issue. There we noted that

[a]n important, indeed critical, means for dealing with potential and latent bias is the voir dire. The court should consider the efficacy of more exhaustive and searching voir dire examinations. The court in conducting the voir dire should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias.

[Id. at 68 (footnotes omitted).]

Although in some instances the trial court’s interrogation was more general and less searching than that requested by counsel, our independent review of the record reveals that the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury. We hold that the trial court’s refusal to permit the voir dire interrogation to be conducted by counsel was within the limits of our decision in State v. Manley, supra, 54 N.J. 259, and of Rule l:8-3(a), because both the Manley decision and the Rule are applicable to capital cases. However, we note that in capital cases trial courts should be especially sensitive to permitting attorneys to conduct some voir dire.

3. Excuse of Jurors for Hardship

We also note and reject defendant’s contention that the trial court overestimated the length of the trial, causing “many well-educated and working-class people” to ask to be excused from jury service. The trial court on November 14 announced to the jury pool was that the trial “will probably go ... up until Christmas.” Accordingly, the trial court excused those jurors whose jobs might be jeopardized or whose personal circumstances were such that jury service for an extended period would be a financial hardship. In fact, jury voir dire occupied the week of November 14, the trial commenced on November 28, after a recess during Thanksgiving week, and lasted nine days, ending on December 8.

There is no suggestion that the trial court deliberately or unreasonably excluded from jury service a cognizable class of jurors in violation of defendant’s sixth amendment rights, see Thiel v. Southern Pac. Co., 328 U.S. 217, 221-25, 66 S.Ct. 984, 986-88, 90 L.Ed. 1181, 1185-87 (1946), or that the jury selection procedure resulted in a substantial underrepresentation of a constitutionally cognizable group, see Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498, 510 (1977). Although the trial court’s estimate of the length of trial proved to be incorrect, it was hardly unreasonable or inappropriate in view of the State’s extended witness list and the anticipated length of the jury voir dire. We find no error either in the trial court’s attempt to estimate the length of trial or in its determination to exclude jurors unable to serve in a protracted trial.

B. Publicity and Venue

It is undisputed that there was extensive pretrial publicity concerning the defendant in newspapers distributed in Monmouth County, particularly during April and May of 1983. A number of articles linked the defendant to other homicides and disclosed his prior murder conviction. Front page articles in the Asbury Park Press included photographs of the police digging to locate bodies, maps to gravesites, interviews with families of victims, and photographs of the defendant in handcuffs. Although articles concerning defendant appeared with greatest frequency in the Asbury Park Press, a newspaper widely read in Monmouth County, there was also significant publicity in the Star Ledger, The New York Times, the Daily News, the New York Post, the Record (Bergen County), the Atlantic City Press, the Trentonian, the Daily Register (Monmouth County), the Home News (Middlesex County), and the Philadelphia Inquirer, as well as substantial radio and television publicity.

The prosecutor was quoted and seen regularly in the news reports of the case. He established a hotline to receive information about the defendant and the murders and held press conferences. He was accompanied by 200 reporters during the search for bodies of defendant’s alleged victims on Staten Island, New York. When speaking with the press the prosecutor repeatedly assumed defendant’s guilt and also stated that defendant killed only for pleasure. One article attributed to the prosecutor the observation that defendant had murdered Olesiewicz and the others because “he wanted to see someone die” on those nights.

After May 1983, publicity about the case generally subsided. In July defendant moved for a change of venue on the ground that the extensive pretrial publicity made it unlikely he could receive a fair trial in Monmouth County. The assignment judge denied the change of venue motion without prejudice to its renewal at the time of trial. At the same time, he adjourned the September trial date for two months and barred any further public comment by counsel concerning the case or other related matters pending indictment.

The day before the trial began, the Asbury Park Press carried a front page article on the upcoming trial, featuring a picture of the defendant, discussing his prior conviction in 1959 for murder, repeating the prosecutor’s statements about lack of motive, and linking the defendant to five area murders. Thereafter, press coverage of the jury voir dire and the trial continued daily. A few jurors were observed reading newspaper accounts of the trial in the jury assembly room before they were called for voir dire. We note that the trial court instructed all jurors not to read anything about the case.

It is axiomatic that a criminal defendant’s right to a fair trial requires that he be tried before a jury panel not tainted by prejudice. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961). We have emphasized the importance, particularly in capital cases, of the trial court’s responsibility “to preserve the integrity of the jury and minimize the danger that prejudice will infiltrate the adjudicatory process...” State v. Williams, supra, 93 N.J. at 63.

In criminal cases attended by widespread and inflammatory publicity, various trial management techniques can be employed to assure that the defendant’s right to an impartial jury is not compromised. One available option is a change in venue. Other means of protecting the defendant’s constitutional rights include the use of searching voir dire examinations, the impaneling of “foreign jurors” to augment the pool of eligible jurors in the vicinage, adjournment of the trial date, and restraints on public comments by participants in the trial. R. 3:14-2, -3; State v. Williams, supra, 93 N.J. at 67-68; State v. Van Duyne, 43 N.J. 369, 388-89 (1964), cert. den., 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965).

Defendant contends that the pretrial publicity was so prejudicial that no relief short of a change of venue was adequate to assure a fair trial. He therefore maintains that denial of the motion to change venue was an abuse of discretion and deprived him of his constitutional right to trial by an impartial jury.

We previously required a defendant seeking a change of venue to establish by “clear and convincing proof that a fair and impartial trial cannot be had before a jury of the county where the indictment was found.” State v. Wise, 19 N.J. 59, 73-74 (1955). The cases that followed Wise made clear that few defendants succeeded in their efforts to establish a need to change venue. See State v. Belton, 60 N.J. 103, 107-08 (1972); State v. Mayberry, 52 N.J. 413, 420 (1968), cert. den., 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969); State v. Gallicchio, 51 N.J. 313, 318, cert. den., 393 U.S. 912, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968); State v. Ravenell, 43 N.J. 171, 180-81 (1964), cert. den., 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965). Accordingly, in 1983 in a capital case we modified the defendant’s burden, conferring on trial courts the discretion to change venue where it is “necessary to overcome the realistic likelihood of prejudice from pretrial publicity.” State v. Williams, supra, 93 N.J. at 67-68 n. 13; see State v. Bey, 96 N.J. 625, 630, clarified, 97 N.J. 666 (1984).

In determining whether a realistic likelihood of prejudice existe in a particular case, we agree with the distinction recognized by the federal courts between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600, 614 (1966); Estes v. Texas, 381 U.S. 532, 542-44, 85 S.Ct. 1628, 1632-34, 14 L.Ed.2d 543, 550-51 (1965); Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 549-50, 13 L.Ed.2d 424, 429 (1965); Rideau v. Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663, 665-66 (1963); Marshall v. United States, 360 U.S. 310, 312-13, 79 S.Ct. 1171, 1172-73, 3 L.Ed.2d 1250, 1252 (1959) (per curiam), and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel. Patton v. Yount, 467 U.S. 1025, 1032-35, 104 S.Ct. 2885, 2889-91, 81 L.Ed.2d 847, 854-56 (1984); Dobbert v. Florida, 432 U.S. 282, 301-03, 97 S.Ct. 2290, 2302-03, 53 L.Ed.2d 344, 361-62 (1977); Murphy v. Florida, 421 U.S. 794, 800-03, 95 S.Ct. 2031, 2036-38, 44 L.Ed.2d 589, 595-97 (1975); Irvin v. Dowd, supra, 366 U.S. at 723-28, 81 S.Ct. at 1642-46, 6 L.Ed.2d at 756-59; Stroble v. California, 343 U.S. 181, 193-95, 72 S.Ct. 599, 605-06, 96 L.Ed. 872, 882-83 (1952); see Coleman v. Kemp, 778 F.2d 1487, 1489 (11th Cir.1985) (“There are two standards which guide analysis of this question, the ‘actual prejudice’ standard and the ‘presumed prejudice’ standard.”), cert. den., — U.S. -, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986).

Illustrative of the cases in which prejudice is presumed is Rideau v. Louisiana, supra, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663, where the defendant’s confession of bank robbery, kidnapping, and murder was televised on three occasions two months before the jury was selected and seen by a substantial number of residents in the parish where defendant was to be tried. The Court reversed the denial of defendant’s motion to change venue, observing that “[a]ny subsequent court proceeding in a community so pervasively exposed to such a spectacle could be but a hollow formality.” Id. at 726, 83 S. Ct. at 1419, 10 L.Ed.2d at 665.

In contrast, in Murphy v. Florida, supra, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589, defendant, referred to by the national media as “Murph the Surf,” had attained notoriety for his complicity in the theft of the Star of India sapphire from a New York museum. His 1970 robbery prosecution in Dade County, Florida, was preceded by widespread publicity during 1968 and 1969, but the publicity largely ceased seven months before jury selection. In rejecting defendant’s contention that the pretrial publicity required a change of the venue for trial, the Court distinguished the intrusiveness of the publicity from that found in Rideau, supra, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Sheppard v. Maxwell, supra, 384 U.S. 333, 86 , 16 L.Ed.2d 600; and Estes v. Texas, supra, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543. The Court observed:

The proceedings in [those] cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of'the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner’s trial was not fundamentally fair.

[421 U.S. at 799, 95 S.Ct. at 2036, 44 L.Ed.2d at 594.]

It is abundantly clear to us that this is not a case in which the trial court was required to presume the existence of prejudice prior to the jury voir dire. The extensive pretrial publicity was concentrated in April and May, 1983. In addition to prohibiting further public comment by counsel, the trial court adjourned the trial date until mid-November, allowing nearly six months to permit the impact of the publicity to subside. As the Court stated in Patton v. Yount, supra, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847, rejecting defendant’s argument that his retrial, four years after his first highly publicized trial, was tainted by the earlier publicity, “the passage of time ... can be a highly relevant fact ... [that] rebuts any presumption of partiality or prejudice____” Id. at 1035, 104 S.Ct. at 2891, 81 L.Ed.2d at 856.

It has frequently been noted that pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury. We observed in State v. Williams, supra, that

there is also some reason to believe that even in highly publicized cases the venire will contain many individuals who have not been exposed to the publicity or who, if exposed, are only faintly aware of the nature of the case. See, e.g., United States v. Ehrlichman, 546 F.2d 910, 916-17 n. 8 (D.C.Cir.1976) [cert. den., 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977)]; United States v. Haldeman, 559 F.2d 31, 61-63 (D.C.Cir.1976) [cert. den. sub nom. Mitchell v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977)]; State v. Joyce, 160 N.J.Super. 419, 430 (Law Div.1978).

[93 N.J. at 66 n. 10.]

We therefore conclude that under the circumstances of this case, the appropriate inquiry is whether the jury selection process actually resulted in a fair and impartial jury. As we stated in State v. Van Duyne, supra, this inquiry requires us to examine the results of the jury voir dire.

[A]n appellate tribunal is likewise under a duty to make an independent evaluation of the facts and circumstances and of the juror’s voir dire examination. It should determine for itself whether the pretrial newspaper stories are so pervasive and so prejudicial, or the juror’s protestation of unaffected impartiality after reading them so unconvincing or doubtful that a new trial should be ordered.

[43 N.J. at 386.]

Jury selection in this case commenced on November 14, 1983, and continued for five consecutive days. A total of ninety-five jurors were questioned, of whom seven were excused by the court for personal reasons. Of forty-six jurors excused for cause, thirty-five indicated that their familiarity with the case would affect their ability to serve impartially. Six of the forty-six were excused because of their views concerning capital punishment, four because of personal experiences or relationships and one because of discussions she overheard in the jury room. All of defendant’s challenges for cause were denied. The prosecution used six peremptory challenges, while the defense used all twenty of its peremptory challenges. Only one juror, an alternate, was seated after the defendant’s peremptory challenges were exhausted.

The sixteen impaneled jurors, responding to the court’s interrogation, indicated that they had encountered little or no publicity regarding the case. Several of the trial jurors stated that they had never heard of the defendant before coming to court. We find that a substantial segment of the jury panel subjected to voir dire unequivocally and credibly demonstrated that the pretrial publicity had passed them by, and we are satisfied that the jury that was impaneled was as a whole impartial.

As noted above, the standard governing the trial court’s discretion on a venue change motion is whether the change is necessary to overcome the realistic likelihood of prejudice resulting from pretrial publicity. The dissent appears to agree that there are various options available to the trial court to dispel that likelihood (e.g., change of venue, postponement of trial, voir dire, foreign jurors, gag order), and that the ultimate test of whether it was dispelled is the voir dire and its results. Although the dissent contends it was not dispelled, the fact is that defendant on this appeal makes no complaint about the voir dire (except for the trial court’s initial refusal to hear challenges at side bar and to allow individual attorney questioning of jurors) or about the trial court’s rulings on his challenges for cause. Those rulings are highly discretionary. Assuming, nevertheless, that any was erroneous, application of the plain error rule, sua sponte, would be totally inappropriate given the satisfactory jury that ultimately was impanelled. Furthermore, the trial court told defense counsel, who had previously moved for change of venue, that it would not entertain the motion until after the voir dire; significantly no such motion was thereafter made. The reason must be that the impanelled jury in fact was satisfactory. That jury did not include anyone who recalled having previously read anything about other murders or a prior murder conviction. The only impanelled juror who had such knowledge (of alleged prior murders, but not the prior conviction) heard it from others on the panel. Her voir dire convinced the trial court—and apparently the defense, for she was not challenged for cause and no objection is now made to her serving—that she could disregard what she heard and serve impartially. Except for her, none of the jurors whose voir dire is excerpted in the dissent’s Appendix actually served on the jury-

We do not dispute defendant’s contention that this case was the subject of widespread and inflammatory publicity throughout the region during the spring of 1983. However, our independent review of the record of the jury voir dire impels us to conclude that a significant portion of the jury array was relatively unexposed to pretrial publicity and that the jurors impaneled constituted a fair and impartial trial jury.

C. Prosecutorial Misconduct

Defendant claims that he was denied an impartial jury as a result of the massive pretrial publicity which included and was encouraged by inflammatory statements made by the Monmouth County Prosecutor. The prosecutor arranged several press briefings in April, May and June 1983, during which he discussed the murders for which he was seeking to indict Biegenwald. The prosecutor gave the names, ages and addresses of the victims. He assumed defendant’s guilt, and commented on his motive, events surrounding the crimes, and portions of the State’s evidence. Among the prosecutor’s statements were that defendant committed the murders “because he wanted to see someone die” on those nights; that defendant shot Ms. Olesiewicz “for the sheer pleasure of seeing her die”; and that Biegenwald was a “perverted, sick individual.” On July 29, 1983, the trial court denied defendant’s motion to dismiss the indictment on the basis of prosecutorial misconduct.

Disciplinary Rule 7-107(A), (B) of the Code of Professional Responsibility states, in pertinent part:

(A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that he expects to be disseminated by means of public communication and that does more than state without elaboration:

(1) Information contained in a public record relating to the matter.

(2) That the investigation is in progress.

(3) The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.

(4) A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto.

(5) A warning to the public of any dangers.

(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not ... make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused____

(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.

This Court has held that Disciplinary Rule 7-107(B)(6) “prohibits an attorney involved in an ongoing criminal trial from making extrajudicial comments concerning the guilt or innocence of a criminal defendant or the quality of the evidence or the merits of the case when such remarks are ... reasonably likely to interfere with a fair trial.” In re Rachmiel, 90 N.J. 646, 657 (1982) (emphasis added). The disciplinary rule creates a “rebuttable presumption that statements on these topics are reasonably likely to affect the proceedings.” Id. (citing Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 251 (7th Cir.1975), cert. den. sub nom. Cunningham v. Chicago Council of Lawyers, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed. 2d 1204 (1976)).

The State argues that the prosecutor’s comments were permissible because they disclosed only the results of an ongoing investigation. For support, it relies on Disciplinary Rule 7-107(A)(3), which authorizes unelaborated statements by a prosecutor as to “[t]he general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.” We find this argument to be specious in the context of the inflammatory pretrial comments by the prosecutor in this case. The prosecutor’s public statements that defendant murdered Olesiewicz “for the sheer pleasure of seeing her die” or “because he wanted to see someone die that night” can hardly be justified as disclosures warranted by the “general scope of the investigation including a description of the offense____” DR 7-107(A)(3). Rather, such statements are clearly expressions of opinion on “the evidence, or the merits of the case,” unquestionably proscribed by Disciplinary Rule 7-107(B)(6). Particularly in a case like this one, characterized by feverish media interest and broad publicity throughout the state, such comments by the prosecutor are highly inappropriate and inconsistent with his duty to insure that justice is done. See State v. Johnson, 65 N.J. 388, 392 (1974); State v. Farrell, 61 N.J. 99, 104 (1972).

We here reiterate our firm position as stated in State v. Ramseur, supra, 106 N.J. 123, that prosecutors in capital cases have a special obligation to seek justice and to not simply convict, and that we will scrupulously review conduct that falls short of this high standard:

Prosecutors in capital cases are hereby on notice that in the future, this Court will not hesitate to refer on its own motion possible violations of the special ethical rules governing prosecutors to the appropriate district ethics committee for disciplinary action. We are well aware that within the legal profession the prosecutor’s double calling—to represent vigorously the state’s interest in law enforcement and at the same time help assure that the accused is treated fairly and that justice is done—is uniquely challenging. That challenge is what makes the prosecutor’s mission such a difficult one and such an honorable one. A prosecutor willing to engage in proscribed conduct to obtain a conviction in a capital case betrays his oath in both its respects. Not only does he scoff at rather than seek justice, he also represents the state poorly. Because death is a uniquely harsh sanction, this Court of necessity will more readily find prejudice resulting from prosecutorial misconduct in a capital case than in other criminal matters; prosecutors who fail to take seriously their particularly stringent ethical obligations in capital cases thus strongly risk postponing, and even jeopardizing, the enforcement of the law. We are confident that our prosecutors will be equal to this ethical challenge, but we also stand ready to take whatever action is required to remedy any abuses.

[Id. at 323-324.]

However, “[pjrosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial.” Id. at 322. Despite our strong disapproval of the prosecutor’s statements, we are persuaded that these statements, occurring as they did in April and May of 1983, did not “substantially prejudice the defendant’s fundamental right to have a jury fairly evaluate the merits of his defense.” ⁵ State v. Bucanis, 26 N.J. 45, 56, cert. den., 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed.2d 1160 (1958). As we noted in connection with the change of venue motion, the pretrial publicity subsided in June, and the trial court’s July 1983 order barring statements by counsel and adjourning the trial date until November further served to mitigate the adverse impact of the prosecutor’s comments on the jury panel. We conclude, based on our careful review of the jury voir dire, that the interval between the prosecutor’s offending statements and the actual trial was sufficient to dilute their prejudicial effect and preserve defendant’s right to trial by an impartial jury.

IV.

Reasonable Doubt Charge in Guilt Phase

Defendant next contends that the trial court’s charge regarding the prosecution’s obligation to establish guilt beyond a reasonable doubt was improper and constitutes reversible error. He focuses on the following from the charge:

What do we mean by reasonable doubt?

The expression is very basic and really very simple.

A reasonable doubt is a doubt based on reason, reasoning processes.

Defendant does not construct any argument based on the quoted language, apparently content to rest on the implication that it is somehow wrong. Not confronted with any specific claim of error, we will not reach out to manufacture one.

We would be remiss, however, were we not to caution our trial courts against using any charge that has a tendency to “understate[ ]” or “trivialize the awesome duty of the jury to determine whether the defendant’s guilt was proved beyond a reasonable doubt.” Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264, 1272 (1977). Any instruction that suggests that the concept of reasonable doubt is “simple” may run the risk of detracting from both the seriousness of the decision and the State’s burden of proof. Because “[t]he degree of certainty required to convict is unique to the criminal law,” 364 N.E.2d at 1273, we would discourage the resort to any language that tends to minimize the indispensable nature of the “reasonable doubt” standard. See In re Winship, 397 U.S. , 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970); United States v. Pine, 609 F.2d 106, 108 (3d Cir.1979).

Turning to Biegenwald’s specific claims of error, they are that the charge (1) “did not ask whether the jurors had any doubt existing in their minds,” (2) “did not ask whether or not [the jurors] had given full and impartial consideration to all the evidence,” and (3) “did not comment upon the evidence or lack of evidence given by the prosecution nor did it call the jury’s attention to the same.” None of the contentions has merit.

In pertinent part the trial court’s charge on reasonable doubt was as follows:

What do we mean by a reasonable doubt?

The expression is very basic and really very simple.

A reasonable doubt is a doubt based on reason, reasoning processes. A reasonable doubt then is not a doubt which is based on guesswork. It is not a doubt based on a hunch.

It is not a doubt based on some sort of idle speculation.

It is not a mere possible doubt.

The test is not proof beyond any possible doubt.

That is not the test.

It’s not any imaginary doubt, because you may well know, everything in life, I suppose everything in human affairs is subject to some possible or imaginary doubt.

That is not the test.

The test is not proof beyond a possible doubt.

The test is proof beyond a reasonable doubt.

The law does not require absolute certainty, because as Benjamin Franklin said, other than death and taxes, there are very few things in life that are absolutely certain, so that is not the test, reasonable doubt.

Proof beyond a reasonable doubt is the test.

What is a reasonable doubt?

By way of other words to express the same concept, a reasonable doubt is an honest and reasonable uncertainty as to the guilt of the defendant which exists in your minds after you have given full and impartial consideration to all of the evidence in the case____

In essence, it’s a doubt which a reasonable thinking person has after carefully weighing all of the evidence in the case. (Emphasis added.)

Whereas standing alone the definition of reasonable doubt as “a doubt based on reason, reasoning processes,” might well be deemed inadequate, when read in conjunction with the entire charge it had no capacity to mislead the jury. Challenged portions of a jury charge must not be read in isolation; rather, “the charge should be examined as a whole to determine its overall effect.” State v. Wilbely, 63 N.J. 420, 422 (1973). Included in the portion of the charge quoted above is the court’s definition of reasonable doubt as an “honest and reasonable uncertainty as to the guilt of the defendant which exists in your minds after you have given full and impartial consideration to all of the evidence in the case.” This definition, coupled with the additional comments of the court, fully and accurately apprised the jury of the State’s burden of proof beyond a reasonable doubt. Read in context the challenged portion does not constitute error.

Proceeding to defendant’s next point, we note that had the trial court charged the jurors, as defendant contends was required, that a finding of guilt had to be based on the absence of “any doubt existing in their minds,” the instruction would have been manifestly incorrect. We need not tarry on the point longer than to repeat a basic principle of criminal law: the prosecution must establish all elements of the crime beyond reasonable doubt, e.g., In re Winship, supra, 397 U.S. at 363, 90 S.Ct. at 1072, 25 L.Ed.2d at 375; State v. Bess, 53 N.J. 10, 18 (1968), rather than beyond any possible or conceivable doubt.

Defendant’s next argument, that the court failed to instruct the jury on its obligation to give “full and impartial consideration to all the evidence,” is simply not supported by the record. One need look no further for refutation than the underscored portion of the charge above; and if one does look further, one will find that the charge is replete with admonitions to the effect that the jurors are to decide the case on the basis of all the evidence.

Finally, defendant complains of the trial court’s failure to have commented on the evidence—an objection not made at trial and hence one not eligible for appellate review “unless it is of such a nature as to have been clearly capable of producing an unjust result,” R. 2:10-2, that is, “legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.” State v. Hock, 54 N.J. 526, 538 (1969), cert. den., 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970) (quoted in State v. Latimore, 197 N.J.Super. 197, 213 (App.Div.1984), certif. den., 101 N.J. 328 (1985)). In any event we know of no authority—nor does defendant point to any—standing for the principle, constitutional or otherwise, that a court is compelled to make such comment. See Stevens v. Roettger, 22 N.J.Super. 64, 66 (App.Div.1952) (“It is elementary that a trial judge is not obliged to charge matters or comment with regard to the facts of the case ... ”).

The issue of the trial court’s comment on the evidence usually arises in a different context, one in which a defendant argues that the court should not have recited the facts of the case. In those situations our decisions have uniformly recognized the right of a trial court to comment on the evidence, e.g., State v. Mayberry, supra, 52 N.J. at 439-40; State v. Laws, 50 N.J. 159, 176-77 (1967), reargued, 51 N.J. 494, cert. den., 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968), and “oftentimes” even the duty to do so, Mayberry, supra, 52 N.J. at 439-40; Laws, supra, 50 N.J. 176-77. Ordinarily, however, trial courts comment on evidence only sparingly, if at all, the better to assure that the ultimate determination of facts is made by the jury. See L. Arnold, 32 New Jersey Practice, Criminal Practice and Procedure § 981 (2d ed. 1980). The rare situation in which a trial court exercises its discretion to delve into the facts is usually one in which the evidence is complex or the potential for confusion is great; and when that situation occurs, any comment must be designed to avoid unduly influencing or otherwise invading the province of the jury. In this case, the evidence was not overly complex or confusing, and the trial court was well within its discretion in choosing not to comment on the evidence. We find no error.

V.

Sentencing Issues

A. Jury Waiver

Biegenwald claims reversible error in the trial court’s denial of “defendant’s fundamental constitutional right to trial by jury” during the sentencing proceeding under the Act. He moved before the trial court to waive the jury in the sentencing phase of his trial, claiming that “the massive publicity generated by his trial” precluded his receiving a fair and just sentence. (We note that under this point heading defendant does not make a “pretrial publicity” argument, which is made in another context. See supra at 30-37.)

Although defendant signed a written waiver relinquishing his right to a jury trial for the separate sentencing phase, the prosecutor refused to consent to a non-jury trial. Under the Act, such consent is required in order for defendant to waive sentencing by jury. Section c(l) of the Act states:

The court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or pursuant to the provisions of subsection b. of this section. Where the defendant has been tried by a jury, the proceeding shall be conducted by the judge who presided at the trial and before the jury which determined the defendant’s guilt except that, for good cause, the court may discharge that jury and conduct the proceeding before a jury empaneled for the purpose of the proceeding. Where the defendant has entered a plea of guilty or has been tried without a jury, the proceeding shall be conducted by the judge who accepted the defendant’s plea or who determined the defendant’s guilt and before a jury empaneled for the purpose of the proceeding. On motion of the defendant and with consent of the prosecuting attorney the court may conduct a proceeding without a jury. (Emphasis added.)

In addition, Rule l:8-l(a) specifically requires the consent of the prosecutor as a condition to a defendant’s waiver of a jury in the sentencing phase of death penalty proceedings.

The prosecutor’s stated reason was that a jury that had witnessed defendant’s trial, had determined his guilt, and was intimately familiar with the facts of the case, would be in the best position to determine, on the basis of the evidence, whether the factual prerequisites for imposition of the death penalty had been established.

In denying defendant’s motion for a non-jury sentencing proceeding, the trial court observed that even if the prosecutor had consented, the court would not have acceded to the waiver. The court’s “basic reason” for this position was a belief that in capital sentencing the collective wisdom of the jury is preferable to a determination by a single judge.⁶

On this appeal defendant argues that because the sentencing phase is a “separate and distinct criminal proceeding[ ], a defendant must be afforded a constitutional right to waive a jury trial, which right is not subject to the unilateral rejection of a prosecuting attorney.” The opportunity for prosecutorial veto of the waiver of jury trial, claims defendant, violates his “constitutional right to trial by jury, which of necessity embodies the consequential right to waive this protection”—a protection “long established for [defendant’s] benefit.” He does so without providing any authority for the proposition that he has a right to waive a jury.

We disagree with defendant’s sixth amendment claims. The case law is clear on this matter. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), involving a prosecution for violation of a mail fraud statute, petitioner, arguing in favor of his unrestricted right to waive a jury and submit to a non-jury trial, made contentions similar to those urged by this defendant: that the constitutional provisions relating to jury trial are “for the protection of the accused,” and that his “unconditional right ... to a trial by jury” gives rise to “a correlative right to have his case decided by a judge alone if he considers such a trial to be to his advantage.” Id. at 25-26, 85 S.Ct. at 785, 13 L.Ed.2d at 632-33. Specifically, petitioner challenged Rule 23(a) of the Federal Rules of Civil Procedure, which, like our Rule l:8-l(a), called for the consent of the government and the approval of the court before defendant’s waiver of jury trial could be recognized. Id. at 24, 85 S.Ct. at 783, 13 L.Ed.2d at 632. The Supreme Court concluded that “the Constitution neither confers nor recognizes a right of criminal defendants to have their cases tried before a judge alone,” id. at 26, 85 S.Ct. at 785, 13 L.Ed.2d at 633, and hence the Federal Rule calling for the government’s consent and the court’s approval “sets forth a reasonable procedure governing attempted waivers of jury trials.” Id.

In the course of his opinion for the Court in Singer, Chief Justice Warren reviewed the English common law of trial by jury, the colonial experience, and the Constitution and its judicial interpretations. Id. at 27-34, 85 S. Ct. at 786-90, 13 L.Ed.2d at 633-37. From all of these he drew the conclusion that “[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.” Id. at 34-35, 85 S.Ct. at 790, 13 L.Ed.2d at 638. The Court concluded:

In light of the Constitution’s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury—the very thing that the Constitution guarantees him.

[Id. at 36, 85 S.Ct. at 790, 13 L.Ed.2d at 638.]

This Court has adopted the same position in State v. Belton, supra, 60 N.J. 103: “The restriction against a unilateral waiver of jury trial by the accused presents no constitutional infirmity.” Id. at 110 (citing Singer v. United States, supra, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 633).

The United States Supreme Court has recently held that in capital sentencing whether a judge or jury shall make the ultimate decision may be determined by state statute. In Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), the Supreme Court reviewed Florida’s capital sentencing statute, which permits the trial court to override a jury’s recommendation for life imprisonment. The Court addressed the issue of whether the “capital sentencing decision is one that, in all cases, should be made by a jury,” id. at 458, 104 S.Ct. at 3161, 82 L.Ed.2d at 351, and the Court recognized the fact that “despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding—a determination of the appropriate punishment to be imposed on an individual.” Id. at 459, 104 S.Ct. at 3161, 82 L.Ed.2d at 352.

As the Court indicated, the primary question should not be who makes the sentencing decision, but how that decision is made: “[t]he sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant____” Id. at 459, 104 S.Ct. at 3161, 82 L.Ed.2d at 351 (emphasis added). The Act meets that obligation. See Sec. c(5)(h). We can find no constitutional infirmity in its decision not to give a defendant an automatic right to insist on a non-jury determination of the sentencing issues.

B. Aggravating Factor c(4)(c) as Applied to Defendant

While defendant does not claim any error in the court’s charge on aggravating factor c(4)(c) (“[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim”), we treat the issue on our own motion because of its potential importance in other cases.

The trial court first quoted the factor. Based on our construction, the trial court should not quote the statute since the initial part of it serves no function under our definition. See State v. Ramseur, supra, 106 N.J. at 211. It will serve only to confuse the jury to tell it that it must find that the murder was “outrageously or wantonly vile, horrible or inhuman,” and then later instruct the jury to disregard that portion of the factor. There is no purpose in explaining to the jury why this first portion of the statute is irrelevant for its purposes. Mentioning it can only cause confusion.

After quoting the statute, the court continued by noting that although in a certain sense every murder may be viewed as vile, horrible or inhuman, that doesn’t mean that there is an automatic aggravating factor in every case of murder. The Legislature had something more in mind by making that an aggravating factor. What is necessary to exist is that the attack by the defendant on Anna Olesiewicz, the victim, involved either torture or conduct indicating a depraved mind or that the attack was so savagely outrageously cruel or violent, that the adjectives wantonly, vile or horrible or inhuman are justified.

That was the entirety of the court’s instructions on this aggravating factor in its main charge. The jury, quite predictably, after deliberating a very short time, returned to the courtroom with the request that the court “re-explain Part Two of the aggravating factors, clearer interpretation, because commas are confusing.” The jury was obviously referring to aggravating factor c(4)(c). What follows is the colloquy between the court and the jury:

THE COURT: The question you sent out is this: Re-explain part two of the aggravating factors, clearer interpretation, because commas are confusing.

I gather that you’re looking at number two on that verdict sheet?

The commas were put in there by the Legislature.

I just want you to know that.

That’s the way the Legislature defined it and gave it to you in the legislative language.

In what sense are the commas, it’s all in the disjunctive.

The word “or” is in there, that murder was outrageously wanton or vile or horrible or inhuman, in that it involved torture, or depravity of mind or an aggravated battery to the victim.

That’s I think what you can interpolate under English Grammar for the commas, is that what was the heart of the problem may be you can give me—

THE FOEELADY: The question also was, does the torture, the depravity of mind and aggravated battery, do any one of those three things have to apply?

That’s the point.

THE COUET: Any one of the three?

THE FOEELADY: Yes.

THE COUET: If it involved either torture or depravity of mind or aggravated battery is that—I think that’s a correct English reading of what the legislature wrote.

It’s in the disjunctive.

As I say, any one of those.

THE FOEELADY: O.K.

THE COUET: If it’s still confusing, try to extract what is the heart of the confusion, and to put it to me in a definite question.

THE FOEELADY: O.K.

It is obvious that this jury knew only that which a reasonably intelligent person would gather from reading this part of the statute, and that, decidedly, is not enough to guide anyone’s discretion in this decision. See Godfrey v. Georgia, 446 U.S. 420, 429, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398, 406-07 (1980). The total impact of the trial court’s charge in this regard was to leave the jury with this portion of the statute unexplained. As we stated in State v. Ramseur, supra, 106 N.J. at 198-199, Section c(4)(c) standing alone completely fails to channel the jury’s discretion and is impermissibly vague.

What was needed was a relatively simple charge that directed the jury to consider only Section e(4)(c) of the statute as we construe that section in State v. Ramseur, supra, 106 N.J. at 198-211. Under our interpretation of Section c(4)(c) there was insufficient evidence for the jury to consider that the murder of Anna Olesiewicz was accompanied by either an aggravated battery or torture. Assuming the State claimed the defendant’s acts fell within this Court’s definition of “depravity of mind,” the trial court could have instructed the jury as follows:

The State claims that the killing of Ms. Olesiewicz involved depravity of mind. If you unanimously find beyond a reasonable doubt that it did, then your answer shall be yes to that question on the jury sheet "That this murder involved depravity of mind.” In order to find that the killing involved depravity of mind, you must find that defendant killed his victim without any purpose or meaning because he had no reason for killing Ms. Olesiewicz other than wanting to kill.

These instructions should also direct the jury to consider all the circumstances of the murder in determining the defendant’s intent, because a defendant may not state his or her motive for killing.

The charge here failed to conform this section of the statute with constitutional requirements, and this failure would be reversible error had it been raised either at trial or on appeal. Since the sentencing proceedings are to be retried in any event, we need not decide whether, despite such failure, the matter would be reversed on our own motion because of this error.

What we do decide, however, is that, contrary to our dissenting colleague’s assertion, on retrial of the sentencing proceedings the State should not be foreclosed by considerations of double jeopardy from arguing the existence of aggravating factor c(4)(c). The jury should be permitted to consider that aggravating factor to the extent that it includes as one of its elements “depravity of mind” as we have defined it today. And only to that extent: we agree that the State will not be permitted to argue that the evidence warrants a finding that either an “aggravated battery” or “torture” of the victim satisfied the requirement of c(4)(c), for we have already determined that under a correct view of these factors the evidence was insufficient to go to the jury. To allow the State another opportunity to produce evidence of an “aggravated battery” or “torture” that it failed to muster at the original proceedings would run counter to fundamental double jeopardy principles. See State v. Tropea, 78 N.J. 309, 316 (1978) (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)).

That is not to say, however, that on retrial the jury should not be entitled to consider whether there is sufficient evidence of “depravity of mind” to justify imposition of the death sentence based on that element of c(4)(c). Although the State’s argument may have focused on Biegenwald’s commission of an “aggravated battery,” the trial court charged—and at the jury’s request recharged—that in order to satisfy c(4)(c), only one of these conditions, namely, torture, depravity of mind, or an aggravated battery, had to exist. The jury concluded that aggravating factor c(4)(c), as well as c(4)(a), had been established beyond a reasonable doubt; but the verdict does not reveal which feature or combination of features of c(4)(c) the jury accepted. It may well have concluded that “depravity of mind” had been demonstrated, but if so, it reached that conclusion on the basis of an improper charge. As we have demonstrated, the trial court’s instructions on c(4)(c) did not meet our formulation of that aggravating factor.

The evidence of “depravity of mind” at defendant’s trial was such as to permit a jury finding, under a correct instruction, that the State had demonstrated that discrete element of the aggravating factor. We suspect that the evidence of “depravity” at the new sentencing hearing will be the same, but of course it need not be. The point is that the jury should be permitted to assess, under a correct instruction, whether “depravity” has been shown. The United States Supreme Court has recently held that

the Double Jeopardy Clause does not require the reviewing court, if it sustains [the] claim [that the evidence was as a matter of law insufficient to support the aggravating circumstances on which defendant’s death sentence was based], to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected.

[Poland v. Arizona, 476 U.S.-,-, 106 S.Ct. 1749, 1756, 90 L.Ed.2d 123, 133 (1986).]

This case does not involve rejection of an aggravating factor by a jury followed by a retrial of that factor; here, retrial will be on a factor that the jury found to exist. The defendant cannot complain that the fact-finder will be given the opportunity to make its determination under correct instructions: We conclude that double jeopardy considerations will not bar defendant’s exposure to a death sentence at the retrial of the sentencing phase of the case.

C. Weighing Aggravating and Mitigating Factors

While defendant did not raise the issue either at trial or on appeal, we find that the trial court’s instructions in the sentencing proceeding constituted plain error of a nature to warrant our consideration sua sponte. See State v. Grunow, 102 N.J. 133, 148-49 (1986) (even in absence of objection, court must instruct jury on fundamental principles that control case); State v. Federico, 103 N.J. 169, 176 (1986) (obligation extends to proper charge on State’s burden of proof). The error concerns the jury’s function in balancing aggravating factors against mitigating factors, a function that leads directly to its ultimate life or death decision. Its effect was to allow a death sentence without a finding that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. We hold that such a finding was required by the Act at the time of defendant’s trial as a matter of fundamental fairness and that its absence mandates reversal and retrial of the penalty decision. Legislative policy also mandates this result, as indicated by the 1985 amendments to the Act; those amendments, furthermore, provide an independent basis for this result.

At the penalty phase, the prosecutor sought to establish two aggravating factors: that “[t]he defendant has previously been convicted of murder,” Sec. c(4)(a), and that “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,” Sec. c(4)(c). In support of those factors, the prosecutor submitted a certified copy of the 1959 murder conviction of defendant⁷ and asked the jury, based on the testimony at the guilt phase, to consider the murder outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim.

Defendant sought to establish three mitigating factors: (1) that defendant was under the influence of extreme mental or emotional disturbance, Sec. c(5)(a); (2) that defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, Sec. c(5)(d); and (3) that other mitigating factors existed relative to the defendant’s character or record, or to the circumstances of the offense, Sec. c(5)(h). To substantiate those factors, the defense presented a forensic psychiatrist who testified that although Beigenwald was not legally insane, he suffered from a severe personality disorder known as anti-social personality with paranoid traits.

In its instructions, the court charged with respect to balancing aggravating and mitigating factors:

If you find at least one aggravating factor exists, and it has been proven beyond a reasonable doubt, and also you’re satisfied that a mitigating factor exists, so you will check yes, on at least one aggravating factor, yes, on at least one mitigating factor, and then you must weigh the value that is represented by the mitigating factor or factors, one, two, three, whatever it is, against the value represented by each aggravating factor that you checked, and check on the verdict sheet whether in your judgment each aggravating factor is or is not outweighed by the combination of whatever mitigating factors you have found to exist

Unless each aggravating factor which you find is outweighed by the mitigating factor, or aggravating factors,[⁸] or a combination of them, whichever you find, unless it is outweighed by the mitigating factors and you bring that back on your verdict sheet, the sentence will be death.

If each aggravating factor is outweighed by the mitigating factor or factors, or combination of them, the sentence then will be life imprisonment, with ineligibility for parole up to thirty years, so there is a weighing process and it occurs only if you found that both an aggravating factor, at least one, and at least one mitigating factor do exist, then you have to weigh the values that are represented by those factors, and come to your judgment as to whether the mitigating factor outweighs or does, not outweigh the aggravating factor, which you found. (Emphasis added.)

The special verdict form submitted to the jury asked it to find the existence of aggravating and mitigating factors and to determine if each aggravating factor was outweighed by the mitigating factors. The form completed by the jury is reproduced below:

VERDICT FORM AGGRAVATING FACTORS

DO YOU UNANIMOUSLY FIND BEYOND A REASONABLE DOUBT THAT ANY OF THE FOLLOWING AGGRAVATING FACTORS EXIST? (CHECK APPROPRIATE ANSWER.)

1. That the defendant, Richard Beigenwald has previously been convicted of murder.

Yes_ No_

2. That this murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

IF ALL OF THE ABOVE ARE CHECKED ‘NO’, PROCEED NO FURTHER BUT RETURN THIS VERDICT SHEET TO THE COURT AS YOUR VERDICT IN THE CASE SIGNED BY YOUR FORELADY.

Forelady

MITIGATING FACTORS

DO YOU UNANIMOUSLY FIND THAT THE FOLLOWING EXIST AS MITIGATING FACTORS? (CHECK APPROPRIATE ANSWER.)

1. The defendant, Richard Beigenwald, was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution.

2. The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as the result of mental disease or defect but not to a degree sufficient to constitute a defense to prosecution.

3. Any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.

Yes_ No

IF YOU HAVE CHECKED AT LEAST ONE AGGRAVATING FACTOR ‘YES’ AND HAVE CHECKED ALL OF THE ABOVE MITIGATING FACTORS ‘NO’ PROCEED NO FURTHER BUT RETURN THIS VERDICT SHEET TO THE COURT AS YOUR VERDICT IN THE CASE, SIGNED BY THE FORELADY. THE PENALTY WILL THEN BE DEATH.

IF YOU HAVE CHECKED ONE OR MORE AGGRAVATING FACTORS ‘YES’ AND ONE OR MORE MITIGATING FACTORS ‘YES’, THEN STATE AS TO EACH AGGRAVATING FACTOR CHECKED ‘YES’ WHETHER IT IS OR IS NOT OUTWEIGHED BY ANY ONE OR COMBINATION OF ANY OF THE MITIGATING FACTORS CHECKED ‘YES’. THIS DECISION ALSO MUST BE UNANIMOUS. IF AN AGGRAVATING FACTOR IS FOUND AND NOT OUTWEIGHED BY MITIGATING FACTORS, THE PENALTY WILL BE DEATH.

AGGRAVATING FACTOR #1, IS, IS NOT (SELECT ONE AND CIRCLE IT) OUTWEIGHED BY THE MITIGATING FACTOR(S).

AGGRAVATING FACTOR #2, IS, IS NOT (SELECT ONE AND CIRCLE IT) OUTWEIGHED BY THE MITIGATING FACTOR(S).

Although the court did not mention the possibility of the mitigating and aggravating factors being in equipoise, the clear conclusion from its statement that aggravating factors must be outweighed in order for a sentence of life imprisonment to be imposed was that if aggravating and mitigating factors were of equal weight, the penalty would be death. In addition, neither the court nor the verdict form instructed the jury that for the death penalty to be imposed, the State must prove the requisite balance beyond a reasonable doubt.

After returning twice to seek further guidance from the court, the jury found beyond a reasonable doubt that both aggravating factors existed. With respect to the mitigating factors, the jury did not find that the defendant was under the influence of extreme mental or emotional disturbance, Sec. c(5)(a), but did find that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired as a result of mental disease or defect, Sec. c(5)(d). The jury also found as a mitigating factor that another unspecified factor existed relevant to the defendant’s character or record or to the circumstances of the offense. Sec. c(5)(h). The jury concluded that neither aggravating factor was outweighed by the combined mitigating factors.⁹

The relevant language, as it existed at the time of the trial, is found in Section c(3):

The jury, or if there is no jury, the court shall return a special verdict setting forth in writing the existence or nonexistence of each of the aggravating and mitigating factors set forth in paragraphs (4) and (5) of this subsection. If any aggravating factor is found to exist, the verdict shall also state whether it is or is not outweighed by any one or more mitigating factors.

(a) If the jury or the court finds that any aggravating factor exists and is not outweighed by one or more mitigating factors, the court shall sentence the defendant to death.

(b) If the jury or the court finds that no aggravating factors exist, or that any aggravating factors which exist are outweighed by one or more mitigating factors, the court shall sentence the defendant pursuant to subsection b.

Another provision of the Act, Section c(2), provides that the State has “the burden of establishing beyond a reasonable doubt the existence of any aggravating factors,” and that the defendant has “the burden of producing evidence of the existence of any mitigating factors____”

The Act, in its original form, said nothing about the burden of proof in the weighing process. The trial court’s charge conforms to the Act’s original wording. Nevertheless, the literal reading has been the subject of criticism. For example, the initial report of the Trial Judges’ Committee on Capital Causes, see State v. Ramseur, supra, 106 N.J. at 155 n. 2, called for a charge that imposed on the State a burden of proving the result of the balancing process beyond a reasonable doubt, although the Act was silent in that regard.¹⁰ That conclusion was presumably based on New Jersey’s traditional concern for the rights of defendants charged with capital offenses.

New Jersey has always required proof beyond a reasonable doubt in criminal prosecutions. See, e.g., State v. Bess, supra, 53 N.J. at 18; State v. Emery, 27 N.J. 348, 353 (1958) (quasi-criminal drunk driving proceeding requires proof beyond a reasonable doubt). That requirement antedates any suggestion that the Constitution compels that burden. In re Winship, supra, 397 U.S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368; see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). We thus approach this statutory language with a long-standing practice in the criminal law of this state, a practice quite different from the terms of the statute.

Our construction of the statute is based to some extent on the functional similarity of aggravating factors and the weighing process itself to the traditional proof of “elements of an offense.” The burden is firmly fixed in this state where an element of an offense is involved: The State has the burden to prove that element “beyond a reasonable doubt.” N.J.S.A. 2C:l-13a. We note that in some other states “aggravating factors” are elements of the capital crime, and during the guilt phase of trial the State must prove beyond a reasonable doubt the existence of one or more aggravating factors before the defendant becomes “death-eligible.” See, e.g., State v. Silhan, 302 N.C. 223, 275 S.E.2d 450, 482 (1981). Technically, of course, the death penalty is imposed as part of the sentencing proceeding, and under ordinary analysis, the State need not prove its contentions at the sentencing proceeding beyond a reasonable doubt, even those that are statutorily prescribed. See McMillan v. Pennsylvania, 477 U.S.-, -, 106 S. Ct. 2411, 2415-19, 91 L.Ed.2d 67, 74-79 (1986) (where legislature provided mandatory sentence for visible possession of firearm, State need only prove possession by preponderance of evidence and there is not denial of due process when possession is statutorily defined as a sentencing consideration). Here, however, the sentencing proceeding calls for a different treatment because death is “profoundly different,” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978) (plurality opinion), both in terms of its consequences and because it is a procedurally unique sentencing scheme, see Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 1857, 68 L.Ed.2d 270, 278 (1981). The statutory requirement that the State must prove aggravating factors beyond a reasonable doubt—even though that proof is likewise part of a sentencing proceeding—is some indication of the Legislature’s appreciation of that difference, and of its probable intention to impose the same burden on the weighing process itself. The Legislature, in recognizing this functional equivalence by requiring proof beyond a reasonable doubt of any aggravating factor, demonstrated the appropriateness of attaching the protective requirements ordinarily confined to the determination of guilt to the sentencing proceeding as well. There may be analogous determinations made by a judge, of great import, that are governed by a standard that is not “beyond a reasonable doubt,” see, e.g., N.J.S.A. 2C:43-6b; but in New Jersey, where the jury is charged with making that value judgment, a determination of death despite reasonable doubt as to its justness would be unthinkable. We can think of no judgment of any jury in this state in any case that has as strong a claim to the requirement of certainty as does this one.

It is one thing to impose this burden of proof, beyond a reasonable doubt, where the statute is silent on the question; it is another to require the State to prove that the aggravating factors outweigh the mitigating factors when the Act provides, quite clearly, that the State must prove that the aggravating factors are not outweighed by the mitigating factors. The two formulations differ in result only when the jury finds that the aggravating factors and mitigating factors are in equipoise. If the State must prove the aggravating factors outweigh the mitigating factors, then equipoise will not result in a death sentence; if the State must prove that the aggravating factors are not outweighed by the mitigating factors, then equipoise does result in a death sentence. That single point on this shifting balance between aggravating and mitigating factors may make the difference between life and death. More than that, we believe that the phrasing of the question is more disadvantageous to the defendant than is suggested by the logical analysis wherein the only difference results where the factors are “in equipoise.” It is not a very substantial change in a juror’s mind that is required to transform “you must find, beyond a reasonable doubt, that the aggravating factors are not outweighed by the mitigating factors” to “you must find, beyond a reasonable doubt, that the mitigating factors outweigh the aggravating factors.”

This potential for confusion¹¹ brings us to the strongest reason for interpreting the Act to require the State to prove, beyond a reasonable doubt, that the aggravating factors outweigh the mitigating. In no proceeding is it more imperative to be assured that the outcome is fair than in these cases. It is difficult to believe that the Legislature thought it fundamentally fair that a defendant be executed except where the mitigating factors outweigh the aggravating; the concept of executing him where the explanations for his misconduct (the mitigating factors) were equally as significant as the culpable aspects of that misconduct (the aggravating factors) is foreign to what the Legislature would certainly intend. We speak here about the ultimate value judgment, the ultimate question of life or death, for while the formulation is in terms of “beyond a reasonable doubt,” and therefore appropriately applicable to fact-finding, the weighing process really is not fact-finding at all but a judgmental determination by the jury, based on conflicting values, of whether defendant should live or die. See Barclay v. Florida, 463 U.S. 939, 950, 103 S.Ct. 3418, 3425, 77 L.Ed.2d 1134, 1144 (1983) (plurality opinion) (“It is entirely fitting for the moral, factual, and legal judgment of judges and juries to play a meaningful role in sentencing.”). If anywhere in the criminal law a defendant is entitled to the benefit of the doubt, it is here. We therefore hold that as a matter of fundamental fairness the jury must find that aggravating factors outweigh mitigating factors, and this balance must be found beyond a reasonable doubt.

There is persuasive legislative history for the position that the Legislature, despite the statutory language, intended to require that aggravating factors outweigh mitigating factors before the death penalty could be imposed. At a public hearing before the Senate Judiciary Committee, Edwin Stier, then Director of the Division of Criminal Justice in the Department of Law and Public Safety, testified concerning Senate Bill 112 (May 20,1982) (the bill that led to the enactment of the Act). It is clear from the questioning that the Committee was looking to Mr. Stier both for analysis and guidance and that his views were highly regarded. Numerous suggestions he made were adopted by the Committee. At a point when the question of the burden of proof of aggravating and mitigating factors was being discussed, Mr. Stier, having suggested that the Bill’s original requirement that mitigating factors be established “by a preponderance of the evidence” be eliminated, was asked, “Basically, you have eliminated that. Have you replaced it with anything? If not, what is the test? The trial judge is sitting there and he is asking himself.” Mr. Stier’s response was:

What we have tried to do is to establish the State’s burden beyond a reasonable doubt, to establish sufficient aggravating factors to outweigh the mitigating factors which exist. The defendant has no burden of proof on those mitigating factors. That is what we intended to do with this. (Emphasis added.)

Shortly thereafter the following question was posed: “Now, the ultimate test is, do the aggravating factors outweigh the mitigating. I raise the point I am raising now just to make sure we don’t have some trial judge that may be as confused as we lawyers here saying, ‘What do they intend?’ I raise that, Ed [Stier], because I want to know if you see any need to spell it out anymore?” Mr. Stier responded:

At this point, I can’t say that I do. I think what we have here is a situation in which the proceeding according to the way the bill is drafted would proceed as follows: the jury would have to find any aggravating factors beyond a reasonable doubt. Factually they would have to find those factors beyond a reasonable doubt. And, then they would weigh those aggravating factors against the mitigating factors. And, if they found that the aggravating factors outweigh the mitigating factors, they would impose the death penalty. Procedurally, that is how it would occur. (Emphasis added.)

The interpretation of the original version of the Act to require that the aggravating factors outweigh the mitigating beyond a reasonable doubt is also strongly supported by the recently passed amendment, L. 1985, c.178. The initial statement accompanying Senate Bill 950, introduced by Senator Russo in the 1984 session of the Legislature, says: “This bill is intended to clarify several procedural aspects of the capital punishment statute. Those clarifications are as follows: ... 5. clarify that aggravating factors must outweigh any mitigating factors in order for a death sentence to be imposed.” S.Stat. to S.950 at 1 (March 1, 1984) (emphasis added). The Bill also required that the balance be proven beyond a reasonable doubt. This statement of intent by the Legislature that it is “clarifying” a previous law is obviously not dispositive.¹² Nevertheless, when combined with the testimony before the Senate Judiciary Committee, it constitutes persuasive support for this construction.

A provision of our Code of Criminal Justice designed to assure fairness among similarly situated defendants with respect to changes introduced by the Code supports our conclusion that especially in capital cases the equities require like procedural treatment among death-eligible defendants. While not directly applicable, this provision, N.J.S.A. 2C:l-lc(l), is instructive. It provides:

In any case pending on or initiated after the effective date of the code involving an offense committed prior to such date____ [t]he procedural provisions of the code shall govern, insofar as they are justly applicable and their application does not introduce confusion or delay____

While this provision was intended to accomplish justice in those cases that were pending when the Code of Criminal Justice was enacted by applying the Code’s procedural provisions where appropriate, it also signifies generally a legislative intention to give the benefit of new laws where possible, and where just, to those who are charged under old laws.¹³

The legislative intent regarding retroactive operation of the amendment is somewhat clouded by the fact that both the Senate and Assembly Judiciary Committees’ Statements that accompanied the release of Senate Bill 950, which included numerous other amendments to the Act, indicated that the provisions were not intended to be retrospective or “to affect cases now on appeal.” See supra note 12. The force of that declaration is diminished, however, by the fact that the same Statements contain language clearly directing that this portion of its provisions (“aggravating factors [must] outweigh beyond a reasonable doubt all of the mitigating factors”) is intended to clarify the original version of the Act.

Ultimately our determination is based on fundamental fairness, a determination we believe the Legislature would share. The Act, from the date of its introduction to this very day, has been in a state of reevaluation, revision, and analysis. Chapter 178 of the Laws of 1985 has effected what probably will turn out to be the most substantial revision, but in fact there have been even later revisions and there aré bills still pending for further revision.¹⁴ The Legislature has apparently finally determined that in order for death to be imposed, the State must prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. Given the relatively short period of time that has transpired between the enactment of the Act in 1982, and the amendments in 1985, we would regard it as impermissibly harsh to apply to one defendant, on this critical question of life and death, a standard significantly less favorable than that to be applied to another defendant, merely because of the relatively short time differential between the commission of their crimes. Much more is at stake than doing justice to Mr. Biegenwald. What is at stake is the fundamental fairness of a system that generates life and death decisions.

We do not suggest that every time the criminal law changes for the benefit of defendants, it should apply to all who ever committed that crime, no matter how many years before that change, any more than we would imply (contrary to the Constitution) that when the criminal law is changed to make it harsher towards defendants, any such retroactive application would be appropriate. The unfairness, if there be any, in not applying the laws retroactively in these cases is balanced by the needs of the practical administration of justice; the system cannot continually retry, reevaluate, or resentence all those convicted under prior laws every time that law is changed. See State v. Burstein, 85 N.J. 394, 406 (1981); see also Johnson v. New Jersey, 384 U.S. 719, 727, 86 S.Ct. 1772, 1777, 16 L.Ed. 2d 882, 888 (1966) (in determining whether two decisions should be applied retroactively, the Court considered “the effect on the administration of justice”). However, with respect to the death penalty, and changes within only a three-year period that affect its imposition, it is both unjust, and probably outside of the Legislature’s intent, not to give those previously tried the benefit of provisions intended to have been in the law in the first place.¹⁵ Although we do not in any way rest our holding on considerations of efficiency, we note that there is no substantial problem of judicial administration here.¹⁶ Although our holding will require retrial of the sentencing proceeding in this case and in some others, the price is relatively small for assuring fairness in this most awesome of all determinations: shall the defendant live or shall he die?

We therefore hold that in all cases tried under the Act, in order for the death penalty to be imposed, the State must prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors.

VI.

Resentencing

In vacating and remanding this death sentence, we foresee no double-jeopardy problems arising from resentencing defendant. It is, after all, standard practice for the United States Supreme Court to vacate and remand a death sentence for resentencing while leaving the underlying conviction intact. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1972). Many state statutes, moreover, provide explicitly for such a resentencing in the event that a death sentence is vacated on legal grounds (as opposed to insufficient evidence). See, e.g., Ala.Code 1113A-5-53(d) (1982); N.C.Gen.Stat. § 15A-2000(d)(3) (1984); Va. § 19.2-264.3(0) (1983) ; S.C.Code Ann. § 16-3-25(E) (1-2) (Supp.1984); La.Code Crim.Proc.Ann. tit. 30, ch. 3, art. 905.1(B) (1984); cf. Ga.Code Ann. § 17-10-35(e)(l-2) (authorizing the State Supreme Court to “[s]et the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel ... ”). But see Ohio Stat.Ann. § 2929.06 (1982) (providing for imposition of life sentence should resentencing be required); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984) (resentencing shall result in imposition of life imprisonment); Eddings v. State, 688 P.2d 342 (Okla.Crim.App.1984) (construing provision identical to Georgia’s, holding that resentencing shall result in modification of sentence to life imprisonment), cert. den., 470 U.S. 1051, 105 S.Ct. 1750, 84 L.Ed.2d 814 (1985) .

The present case is distinguishable, moreover, from Bullington v. Missouri, supra, 451 U.S. 430, 101 S. Ct. 1852, 68 L.Ed.2d 270, in which the Court held that a defendant who had successfully appealed a conviction for which a life sentence had been given could not be exposed to a death sentence on retrial; retrial of the instant case on the issue of penalty would result in no escalation in the severity of the potential punishment. See Knapp v. Cardwell, 667 F.2d 1253, 1265 (9th Cir.1982) (distinguishing Bullington in part because “[t]he sentence that can be imposed on resentencing here cannot be more severe than that previously assessed”), cert. den., 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982); State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978) (en banc), cert. den., 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979).

Resentencing cannot be considered double-jeopardy where the first sentence was a death sentence and the evidence was sufficient. This does not mean that the State can charge any aggravating factors at resentencing that were not found by the jury in the first sentencing phase. Zant v. Redd, 249 Ga. , 290 S.E.2d 36, 39 (1982), cert. den., 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); see also Miller v. State, 237 Ga. 557, 229 S.E.2d 376, 377 (1976) (pre-Bullington case holding that “a new trial on the sentence can be held before a new jury where the jury that convicted the accused also sentenced him to death and the sentence was reversed on appeal because of some error that infected the sentence”).

Under this state’s prior capital punishment statute, trials were unitary, and an error affecting the imposition of sentence resulted, until State v. Laws, 51 N.J. 494, cert. den., 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968), in a remand for a new trial on the issues of both guilt and sentence. See, e.g., State v. Mount, 30 N.J. 195 (1959); State v. White, 27 N.J. 158 (1958). In State v. Laws, supra, 51 N.J. 494, however, this Court .modified defendants’ sentences to life imprisonment where an error affected penalty alone. The Court held that a retrial limited to the issue of penalty would be inappropriate; its holding was based largely, however, on practical grounds:

Obviously, the old jury could not now be reconstituted ... [n]or could a new jury pass on the matter of punishment alone without being familiar with “all the evidence____” It is conceded that the State would be unable to produce all of the witnesses at the original trial, and any suggestion that a new jury could fairly be called upon to read the many thousands of pages of testimony at the former trial in lieu of hearing live witnesses, would appear to be too unrealistic to require discussion.

[Id. at 512.]

Thus, the Court did not reject a resentencing trial on double-jeopardy grounds. The Court acknowledged, moreover, that its resistance to resentencing was due largely to the fact that bifurcated trials were foreign to New Jersey, id.; “[wjhether bifurcation should be adopted for the future,” the Court advised, “calls for thorough study.” Id. That “thorough study” can be said to have resulted in the passage of the Act we uphold today. Because Laws was decided under a unitary trial statute, and because the Laws Court’s major misgiving about a separate trial on the issue of penalty—the foreignness of bifurcation—has been removed, Laws is not controlling precedent for the present case.

Since the reversible error affects only the sentencing proceeding, retrial shall be limited to that portion of the trial. Guilt shall not be retried. See State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105, cert. den., 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed. 2d 174 (1983); Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983); State v. Teague, 680 S.W.2d 785 (Tenn.1984).

Numerous questions may arise on resentencing, questions that are best answered initially at the trial level, and best determined by an appellate court on a full record. In the interest of judicial economy, however, we will provide some tentative directions, guidance and suggestions.

The Act is silent with respect to proceedings on retrial. The major question is whether to attempt to impanel the same jury that heard the case originally or to select a new jury. While the original jury has the advantage of having heard the testimony at the guilt phase of the trial (thereby avoiding the necessity of repeating some of that testimony), the disadvantages far outweigh the advantages. Even as to the supposed “advantages,” the time lag between the original trial of the guilt phase and the retrial of sentencing phase may be so long as to raise a question about the initial jury’s ability to remember that testimony. Intervening events would be a subject of careful examination on voir dire in order to assure that they have not prejudiced any of the original jurors, as well as to ascertain whether any juror’s mind had become unalterably fixed on the question of the sentence. We believe that these objections— not to mention the problems that may arise simply in locating and impaneling the original jury—are almost insuperable. We therefore conclude that a new jury must be selected. See State v. Finnell, 101 N.M. 732, 688 P.2d 769, 772, cert. den., 469 U.S. 918, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984); Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422, 431 (1985), cert. den., — U.S. -, 106 S.Ct. 1503, 89 L.Ed.2d 983 (1986); Hopkinson v. State, 664 P.2d 43, 84 (Wyo.), cert. den., 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983).

It seems clear that, where the witnesses are available, the State is required to present testimony through them rather than by offering a transcript of their testimony at the original trial. See State v. Arnett, 125 Ariz. 201, 608 P.2d 778, 780 (1980). Ordinary rules of hearsay call for such live testimony. See Evid.R. 63(3). While the Act’s reference to the State’s obligation to comply with the Rules of Evidence (see A. 1985, c. 178) presumably contemplates the initial trial, there is no reason why this obligation should not also be applicable to resentencing. Therefore both the hearsay rule itself and the Act require live testimony where the witness is available. There likewise seems to be no reason why the Act should not also be used in determining the form of evidence to be presented by defendant. The Act allows proof of mitigating circumstances without regard to the Rules of Evidence. A. 1985, c. 178. We therefore conclude that defendant has the option of presenting either live testimony or transcripts of testimony even where the witness is available. Under those circumstances, however, the rule allowing the State to rebut such ordinarily inadmissible testimony without regard to the Rules of Evidence (A. 1985, c. 178) should also apply.

Since the retrial is limited to resentencing, the only admissible evidence is that relevant to the issue, namely, evidence of aggravating and mitigating factors. Retrial of issues relevant only to guilt is not permitted. While defendant may lose whatever advantage inheres in the “residual doubts” that the original jury may have had regarding defendant’s guilt, see Lockhart v. McCree, 476 U.S.-,-, 106 S.Ct. 1758, 1769, 90 L.Ed.2d 137, 153 (1986), the State may also lose whatever “advantage” inheres in the emotional impact that often surrounds the initial guilt phase. A substantial amount of the evidence admitted initially in the guilt phase nevertheless may be admissible in the retrial of the sentencing proceeding, for often issues relevant to one are relevant to the other. In this case, the State will presumably be required to prove the circumstances of the murder, as it did in the guilt phase, in order to prove aggravating factor c(4)(c).

Finally, it seems as if the State and the defense are free to present new evidence, testimony or documentation not presented at the original sentencing proceeding, and that the new jury may reach conclusions concerning aggravating factors and mitigating factors different from and inconsistent with the findings at the original sentencing proceeding. In other words, neither side is assured, at the new trial, of the “benefits” gained in the original trial. The only constitutional restriction applicable to retrials in criminal cases is that the defendant may not be subject to punishment beyond that imposed in the first trial, and since death was the verdict in the first trial that issue is immaterial here.

Conclusion

As we stated in State v. Ramseur, supra, 106 N.J. at 331, it is not for this Court to pass on the wisdom or the ultimate morality of the death penalty. That issue is for the Legislature and the Governor, and for them alone. Our function is to determine whether their decision and the law implementing it are constitutional, and thereafter to review cases where the death penalty is applied. We find the act constitutional in all respects but reverse the imposition of the death penalty for the reasons set forth above and remand the matter for a new trial of the sentencing proceedings only, in accordance with this opinion. We affirm the murder conviction.

1 N.J.S.A. 2C:ll-3, containing the Code's murder provisions, consisted of five subsections, (a) to (e), at the time of these crimes and their trials. The death penalty provisions are found in subsections (c) to (e). For convenience, in referring to these provisions we shall, for instance, use Sec. c(l) to designate N.J.S.A. 2C:ll-3c(l). When cited in its totality, N.J.S.A. 2C:ll-3 will hereinafter be referred to as "the Act."

2 Biegenwald was subsequently indicted for four other murders: Maria Cial-Iella, allegedly murdered on October 31, 1981; Debra Osborne, on April 7, 1982; Betsy Bacon, on November 20, 1982; and William Ward, on September 21, 1982. See State v. Biegenwald, 96 N.J. 630, 633 (1984) (per curiam). Biegenwald was found guilty of the murder of William Ward on February 16, 1984, and sentenced to life imprisonment. Id. at 633-34.

3 During the balance of the jury voir dire, the trial court permitted challenges for cause to be asserted at side bar.

4 Rule l:8-3(a) (1983) provides:

For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court’s interrogation in its discretion. At trials of crimes punishable by death ..., the examination shall be made of each juror individually, as his name is drawn, and under oath.

5 Our references to prosecutorial misconduct are not intended to suggest that this Court has adjudicated an ethical offense on the part of the prosecutor. Issues of that kind can be determined only in disciplinary proceedings. Our conclusions are based on the facts that appear before us on this record and are limited to this case only.

6 The statement by the court that it would not allow the jury to be waived even if the State were to give its consent appears to compel sentencing by jury in all cases regardless of the individual circumstances. Without commenting on the wisdom of this insistence on jury sentencing, we point out that the statute, Sec. c(l), unmistakably calls for an exercise of discretion by the trial court based on its consideration of the circumstances of the case.

7 Defendant’s assertion that "prior convictions, especially those being appealed are not allowable Into evidence” is meritless. Evidence of a defendant's prior murder convictions is admissible at sentencing to establish the existence of Section c(4)(a), the aggravating factor based on such prior murder convictions. The United States Supreme Court has upheld the constitutionality of statutes which, like Section c(4)(a), allow the use of prior convictions to guide sentencing decisions in death penalty cases. See, e.g., Zant v. Stephens, 462 U.S. 862, 886, 103 S.Ct. 2733, 2747, 77 LEd.2d 235, 255-56 (1983); Gregg v. Georgia, 428 U.S. 153, 165 n. 9, 193-95, 96 S.Ct. 2909, 2921 n. 9, 2934-36, 49 L.Ed.2d 859, 870 n. 9, 886 (1976); Proffitt v. Florida, 428 U.S. 242, 248 n. 6, 251, 96 S.Ct. 2960, 2965 n. 6, 2966, 49 L.Ed.2d 913, 921 n. 6, 922 (1976). At the time of defendant's trial prior murder convictions still being appealed were inadmissible under Section c(4)(a), State v. Biegenwald, supra, 96 N.J. 630, 477 A.2d 318; State v. Bey, supra, 96 N.J. at 628-29. These decisions have been effectively overruled by ¿.1985, c.178, amending the Act to allow for the consideration of murder convictions under Section c(4)(a) regardless of whether an appeal is pending. The prosecutor in this case, however, introduced only defendant’s 1959 murder conviction—a conviction as to which appellate review had long ago run its course. (Indeed at the time of sentencing in this case defendant had not yet been convicted on any of the other murder charges, see supra note 2, filed against him in 1983 and 1984.)

8 The court presumably intended to refer here to "mitigating factors” (rather than "aggravating factors”). The balance of the charge clarifies the slip.

9 The trial court instructed the jury that it was to weigh each of the aggravating factors against all of the mitigating factors. Other trial judges have read the statute as requiring that all aggravating factors were to be weighed against all mitigating factors. For example, the trial court so instructed the jury in State v. Ramseur, supra, 106 N.J. at 317. The 1985 amendment to the Act sought to ‘‘[cjlarify that the aggravating factors must outweigh any mitigating factors in order for a death sentence to be imposed.” Stat. of Purpose to S.950 at 2 (Nov. 29, 1984). The statute, as amended in 1985, clearly requires that all aggravating factors are to be balanced against all mitigating factors. Sec. c(3)(a) and (b). A bill introduced in 1986, passed by the Senate and pending in the Assembly, provides even more specifically that the jury must weigh "the sum total of all of the aggravating factors” against "the sum total of all of the mitigating factors" before a verdict of death shall be imposed. S.1680 at 3 (Feb. 10, 1986). Although the trial court incorrectly charged the jury that it was to weigh each aggravating factor against all mitigating factors, we note that particular error obviously did not prejudice the defendant. On the contrary, it favored him.

10 That Judges’ Committee was sharply divided over whether the jury must also find that the aggravating factors outweighed the mitigating factors, even though the statute clearly set forth a different standard, namely, that the jury must find that the aggravating factors are not outweighed by the mitigating factors. The majority agreed with the trial court in this part of the formulation, but disagreed with its omission of the "beyond a reasonable doubt" burden. As noted above, we have concluded not only that the "beyond a reasonable doubt" burden applies, but that properly construed, the Act calls for a finding that the aggravating factors outweigh the mitigating factors.

11 The initial report of the Judges’ Committee on Capital Causes, supra, illustrates awareness of this potential confusion, and ”restat[ed] the test,” in its original report, Judges Bench Manual for Capital Cases at 69 (September 1982), as follows: ”[T]he death penalty is imposed if the jury is convinced beyond a reasonable doubt that the aggravating factors either outweigh the mitigating factors or that the weight of the aggravating factors and the mitigating factors are equal" (Emphasis added.) The same formulation is given in the proposed charge to the jury suggested by that Committee. Id. at 70-71. The potential for confusion, however, is nowhere better illustrated than in the proposed special verdict form in the Manual where the question for the jury is: "Are you convinced beyond a reasonable doubt that the mitigating factor[s] outweigh the aggravating factor[s]. Please check one. Yes _ No _." The Bench Manual, referring to the verdict sheet in its proposed charge, provides: "Notice that on your verdict sheet you are asked, ‘Do the mitigating factors or factor outweigh the aggravating factors or factor?1 You must check “Yes’ or ‘No.’ Check ‘No’ only if you are convinced beyond a reasonable doubt that the aggravating factor[s] outweigh[s] the mitigating factor[s] or that the aggravating and mitigating factors are of equal weight.” Id. at 71. This statement from the proposed charge purporting to explain the question on the verdict sheet directly contradicts it. It would be unclear whether a defendant was sentenced to death because the jury, although believing that the mitigating factors outweighed the aggravating, was not convinced of this beyond a reasonable doubt—whereas the law provided that all that was required to avoid death was that the jury find the mitigating factors outweigh the aggravating even though the jury would have the greatest doubt about the conclusion. All subsequent proposed special verdict sheets eliminated that particular confusion.

The Committee on Capital Causes made it clear in its first revision to the Judge’s Bench Manual for Capital Cases (Jan. 17, 1983) that its conclusion requiring a "beyond a reasonable doubt" charge was a majority view and that judges who disagreed should follow their "own independent judgment"; it also indicated that a vocal minority disagreed with the interpretation that allowed death to be imposed where aggravating and mitigating factors were in equipoise. Id. at 72.

12 The Senate Judiciary Committee, however, issued a subsequent statement on November 29, 1984, to accompany S.950. S.Stat. to S.950. The later statement says in the introductory paragraph that “Senate Bill No. 950 proposes a series of amendments to New Jersey’s capital punishment statute. In enacting the amendments contained in this bill, the intent of the Legislature is to effect only prospective changes. The amendments are not intended to apply retrospectively or to affect cases now on appeal." Id. at 1. Furthermore the Assembly Judiciary Committee Statement dated February 4, 1985, contains language identical to that in the later Senate Statement above. AssembJudiciary Comm.Stat. to S.950 at 1. Both of these statements, however, indicate in the specific section on weighing aggravating and mitigating factors that the bill merely “clarifies” that there is a reasonable doubt requirement whereas the previous statute was “silent” on the issue. In sum, despite our conclusion that the balancing provision of Senate Bill 950 was intended only to clarify the earlier statute, this conclusion is admittedly less than crystal clear from the legislative history.

13 In State v. Molnar, 81 N.J. 475 (1980), although finding that the equities in that case did not justify retroactive application, we held that the question of allocation of burden of proof was a "procedural provision” within the meaning of N.J.S.A. 2C:l-lc(l), and that cases on appeal were "pending” within the meaning of that section. Id. at 487-89.

14 See L.1985, c.478; S.1680 (Feb. 10, 1986).

15 We note that a Senate bill introduced in 1986 by Senator Russo would, among other things, further clarify the weighing function by providing that "if any aggravating factors are found to exist, the verdict shall state whether the sum total of all of the aggravating factors outweigh beyond a reasonable doubt the sum total of all of the mitigating factors which are found to exist.” S.1680 at 3 (Feb. 10, 1986) (emphasis added).

16 We note that only 15 capital cases were tried before L.1985, c.178 was enacted.