State v. Biegenwald

594 A.2d 172, 126 N.J. 1, 1991 N.J. LEXIS 92

• Court: Supreme Court of New Jersey
• Decided: August 8, 1991
• Status: Published

Opinions

The judgment of the Court was delivered by

CLIFFORD, J.

In State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987) (Biegenwald II), we affirmed Richard Biegenwald’s conviction for the murder of Anna Olesiewicz but reversed his sentence of death and remanded the case for a new sentencing proceeding. A second jury having returned a death-penalty verdict, the trial court sentenced defendant to death. Defendant appeals directly to this Court as of right. R. 2:2-1(a)(3). Because the death-qualification process of the voir dire was inadequate to ensure defendant’s constitutional right to trial by a “fair and impartial jury” and therefore in conflict with the principles set forth in this Court’s opinion in State v. Williams, 113 N.J. 393, 408-27, 550 A.2d 1172 (1988) (Williams II), we vacate defendant’s sentence and remand.

We believe some preliminary observations appropriate. The fundamental goal in jury selection is to make certain each juror will be willing and able to follow — to obey — the court’s instructions. As applied in this case that principle requires that each juror be willing and able to consider and weigh all of the evidence on aggravating and mitigating factors before reaching his or her conclusions. Defendant has killed twice before and has been convicted of other murders twice before. We are not sure, under those circumstances, how many people could fairly sit on a jury in this case. The law, however, requires jurors who would at least listen to the evidence of mitigating factors and who would conscientiously weigh that evidence in deciding the appropriate punishment. A fairly chosen jury might conclude, either unanimously or by split vote, that life imprisonment should be the punishment. In fact, a jury did so once before in another murder prosecution against this defendant.

Despite our clear directions in Williams II, and despite the prosecution’s agreement with defendant’s position, the trial court would not allow Biegenwald’s counsel to ask the simple question whether the potential juror, knowing that this defendant had previously committed two murders, would be able to consider any other evidence, or whether those facts would result in an automatic death-penalty vote by that juror. The trial court’s complex justification for its refusal masks the simplicity of the question’s purpose: to find out if the juror would automatically impose the death penalty, as many would, regardless of the court’s instructions on other evidence, once he or she knew of those other murders.

Among the rights that Biegenwald shares with every capital-murder defendant is the right to be executed only after a verdict of a jury that has considered all of the evidence. We do not know if he was accorded that right.

We do not seek a jury that will be one whit less revulsed than the rest of us are by this serial senseless murderer. We insist only that the jury be able, no matter how severe its reaction to the aggravating factors, at least to consider the mitigating factors and weigh them in accordance with the court’s instructions. Today’s decision rests on a proposition that is at once simple and at the very heart of our criminal-justice system: even this multiple murderer is entitled to a fair trial, one that includes a jury-selection process that ensures that the jury will decide his fate according to law.

I

PACTS AND PROCEDURAL HISTORY

The facts and prior procedural history of this case are fully set forth in Biegenwald II, supra, 106 N.J. at 18-25, 524 A.2d 130, and State v. Biegenwald, 110 N.J. 521, 525-27, 542 A.2d 442 (1988) (Biegenwald III). Thus we limit our recitation to the facts and history relevant to this appeal.

On August 27, 1982, eighteen-year-old Anna Olesiewicz and a friend, Denise Hunter, drove from Camden to the Asbury Park area. While at the Asbury Park boardwalk, Hunter left Olesiewicz to use a bathroom. When Hunter returned, she was unable to find Olesiewicz and eventually proceeded alone to her uncle’s home in Neptune City. The following morning, not having heard from Olesiewicz, Hunter filed a missing-person report.

On January 14, 1983, a skeleton later identified as that of Anna Olesiewicz was discovered in a vacant lot in Ocean Township. There were four bullet holes in the skull. Testimony at the guilt-phase trial indicated that the bullet wounds had been the cause of death. The tissue that remained was inadequate for purposes of blood-alcohol or chemical tests.

One week after the skeleton was discovered, Theresa Smith disclosed to the police that Biegenwald was involved in the shooting. Smith had lived with Biegenwald and his wife, Diane, from June through October 1982 in a multi-apartment building in Asbury Park. Smith reported that she and defendant had become friendly and that she had become defendant’s protege. Defendant had encouraged her to find and kill a victim to prove her toughness. On the night of Olesiewicz’s disappearance, Smith had been driving around shore towns with a co-worker, whom she had planned to kill in keeping with a scheme she had formulated with Biegenwald. Fortunately for her co-worker, Smith lost her resolve, informed defendant by telephone that she could not proceed as arranged, and returned to the Biegenwald apartment to sleep.

Smith claimed that Biegenwald had awakened her that night for reasons she could not recall. Before returning to sleep Smith looked out a window and saw a “shadow of a body” sitting in the car that Biegenwald had given to her. As recounted in Biegenwald II,

[a]t 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. [106 N.J. at 19, 524 A.2d 130.]

According to Smith, Biegenwald removed from the victim’s finger a black and gold ring and later gave it to Smith. The next day Biegenwald and Dherran Fitzgerald, a tenant in the same building, disposed of the body in the vacant lot in Ocean Township.

On the basis of Smith’s statement, the police arrested Biegenwald, his wife, Diane, and Fitzgerald. They found the murder weapon in Fitzgerald’s apartment. The only ammunition found in the house that fit the murder weapon was located in a bag near the basement room in which Biegenwald slept. The black and gold ring — later identified as having belonged to Olesiewicz — was discovered in Diane’s jewelry box.

A jury found Biegenwald guilty of knowing and purposeful murder and sentenced him to death. This Court affirmed defendant’s guilt-phase conviction but reversed the sentence because of an erroneous charge to the jury concerning the weighing of aggravating and mitigating factors. 106 N.J. at 18, 524 A.2d 130. We remanded for a new sentencing proceeding. Ibid.

In advance of the new proceeding, the court denied a motion of one of defendant’s attorneys to be relieved as counsel. The court likewise denied the State’s motion for an order allowing Biegenwald’s conviction for the murder of William Ward to be admitted as additional evidence of an aggravating factor, but this Court ultimately granted that request. (Biegenwald III, supra, 110 N.J. 521, 542 A.2d 442 (distinguishing State v. Biegenwald, 96 N.J. 630, 477 A.2d 318 (Biegenwald I), clarified, 97 N.J. 666, 483 A.2d 184 (1984)), based on an interim amendment of the murder statute and different status of the conviction at the time of its intended use). Finally, defendant moved to charge the jury separately on six proffered bases for establishing the catch-all mitigating factor, see N.J.S.A. 2C:11-3c(5)(h), essentially requesting that the jury be told to consider each basis for applying that factor as an independent mitigating factor. The court denied that motion as well.

Jury selection commenced on January 17, 1989, and lasted three days. On the first day, the trial court delivered a general orientation to prospective jurors. Following hardship excusáis, a pool of eighty-eight venirepersons remained. The court told the members of the venire about the Biegenwald resentencing proceeding, informing them that Biegenwald had been convicted of murder and that the Legislature had designed a system under which the sentence for a capital-murder defendant is determined in a separate proceeding from that for the determination of guilt. It explained that the proceeding for which they were being considered as jurors was solely for the purpose of sentencing. The court described in general terms the function of aggravating and mitigating factors and the process for weighing those factors. It also informed the prospective jurors of the limited options for sentencing, and instructed them several times to avoid discussing the case or viewing or reading media reports concerning it.

Before proceeding to individual voir dire, the court had prospective jurors complete a questionnaire that included questions concerning prior knowledge of or contact with defendant, the anticipated witnesses, the attorneys, and knowledge of a murder case involving defendant. The questionnaire did not inquire about the venireperson’s views on the death penalty.

Individual voir dire commenced with the court asking questions based on the venireperson’s responses to the questionnaire and concerning his or her views on the death penalty, ability to weigh the evidence in support of aggravating and mitigating factors, and exposure to media coverage. After the initial questioning, counsel were permitted to pursue, mostly through the court, further matters raised by a prospective juror’s responses. Individual voir dire included questioning of sixty-four jurors. The court excused twenty-six venirepersons for cause — eleven based on their knowledge of Biegenwald’s criminal conduct — and released three because the panel was complete. ' Defense counsel exercised thirteen peremptory challenges and the prosecutor exercised eight. Neither party exhausted its allotment.

The evidentiary phase of the sentencing proceeding lasted less than a full day. The State sought to prove two aggravating factors: that defendant had been convicted of another murder, N.J.S.A. 2C:11-3.c(4)(a), and that the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim,” N.J.S.A. 2C:11-3c(4)(c). Defendant attempted to establish the existence of three mitigating factors: that “defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to prosecution,” N.J.S.A. 2C:11-3c(5)(a); 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, but not to a degree sufficient to constitute a defense to prosecution,” N.J.S.A. 2C:11-3c(5)(d); and the catch-all factor, N.J.S.A. 2C:11-3c(5)(h) (“Any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.”).

In support of aggravating factor c(4)(a), the State introduced into evidence two Judgments of Conviction for murder, one from 1959 and the other from 1984. The 1984 conviction was for the 1982 murder of William Ward.

To prove aggravating factor c(4)(c), the State called four witnesses, all of whom had testified during the guilt-phase trial and original sentencing proceeding.

Denise Hunter Aliano recounted the trip to Asbury Park, leaving Olesiewicz on the boardwalk, and returning to find her missing. On cross-examination, defense counsel established that the victim occasionally smoked marijuana, took quaaludes, and used cocaine.

Theresa Smith also testified consistent with her initial statement to the police. The prosecution asked Smith what defendant had told her about why he had shot the woman in the head. Smith answered that she and defendant had discussed it and that defendant “just shot her, just felt like shooting her.” She also testified that defendant had wanted her to kill someone for him: “He told me that he picked this girl up, it was supposed to be my victim and I wouldn’t wake up so he killed her.” On cross-examination Smith said that she and defendant had had a conversation late on the night of the murder, that during the conversation she had seen someone in the car parked in the driveway, and that defendant had told her that he had smoked marijuana in the car. Defense counsel also questioned Smith on defendant’s status as a parolee in August 1982 and his concern about avoiding returning to prison.

A Monmouth County Prosecutor’s Office investigator testified about the location of Olesiewicz’s body when found in January 1983. Finally, the Monmouth County Medical Examiner confirmed that the cause of the victim’s death had been multiple gunshot wounds to the head. On cross-examination the medical examiner stated that he found no indications that Olesiewiez had been tortured or physically abused while still alive.

The defense introduced only the videotaped testimony of Dr. Azariah Eshkenazi, a forensic psychiatrist who had testified during the original sentencing proceeding in 1983, and whose testimony had been videotaped. Thus, Dr. Eshkenazi’s testimony in the proceeding under review was identical to his testimony in the earlier proceeding. The same tape had also been used in the sentencing phase of defendant’s trial for the Ward murder.

The doctor testified that he had visited defendant three times in 1983 for a total of eight or nine hours and had reviewed records containing defendant’s medical history. He indicated that defendant had suffered abuse as a child and had been institutionalized at the age of eight. Defendant had been diagnosed as schizophrenic, had been subjected to electro-convulsive shock treatments on twenty occasions, and had been treated for headaches by being constricted in a bed under tight, wet, cold sheets. In those instances defendant had urinated on himself to keep warm. Dr. Eshkenazi diagnosed defendant as suffering from a severe personality disorder known as antisocial personality with paranoid traits. He concluded that at the time of the murder, defendant had “lacked the capacity to appreciate the wrongfulness of his act emotionally, though not intellectually.” The doctor explained: “Intellectually he knew what he was doing * * *, but he certainly did not appreciate that it’s wrong to kill somebody.” He stated further that as a result of the described personality disorder, defendant’s ability to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law was “[fjrom an emotional point of view, completely impaired.”

In summation, to refute the applicability of aggravating factor c(4)(c), defense counsel argued that defendant had a motive for the killing, namely, that defendant was afraid that Olesiewicz would report him to law-enforcement authorities for smoking marijuana and that as a consequence he would be returned to prison. The balance of the defense summation was essentially an effort to persuade the jury to spare defendant’s life so that he could become an object of scientific study in an effort to find a cure for the anti-social personality disorder from which he suffered. The State, in its summation, highlighted that the underlying murder conviction was Biegenwald’s third, and characterized defendant as an evil and cold-blooded killer for whom death was the only appropriate punishment.

The jury found unanimously and beyond a reasonable doubt that the State had proven each of the two aggravating factors. Although the verdict sheet indicated that unanimity was not required for the mitigating factors, the jury found 12-0 that extreme mental or emotional distress, c(5)(a), did not exist. Three of the twelve jurors found the existence of impairment by mental disease or defect, c(5)(d). (The verdict form did not mention intoxication in connection with that factor.) Four jurors found the existence of any other factor relevant to defendant’s character or record, c(5)(h). The jury then found unanimously and beyond a reasonable doubt that the aggravating factors outweighed- the mitigating factors. Accordingly, the court sentenced defendant to death.

On defendant’s appeal to this Court we denied defendant’s motion to supplement the record but agreed to take judicial notice of records filed in other courts in this state in respect of defendant. We granted defendant’s motion that the Court take judicial notice of portions of the defendants’ briefs in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), and in State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988), and ordered that the State could rely on the corresponding points in its briefs in those cases.

II

—A—

CONSTITUTIONALITY OF THE STATUTE

Defendant claims that the New Jersey Death Penalty Act violates the eighth amendment to the United States Constitution. In State v. Ramseur, supra, 106 N.J. at 185-90, 524 A.2d 188, and State v. Koedatich, supra, 112 N.J. 225, 548 A.2d 939, we upheld the constitutionality of the act in the face of equivalent challenges. We continue to adhere to those holdings.

—B—

PRESENTENCING-PROCEEDING ISSUES

1. Gerald Issue

Defendant claims he was never convicted of capital murder for the Olesiewicz murder because “there was no jury finding of a specific intent to kill, as opposed to an intent to cause serious bodily injury resulting in death, nor was there any finding that the murder was committed by defendant’s ‘own conduct.’ ” See State v. Gerald, 113 N.J. 40, 69, 549 A.2d 792 (1988). Therefore, defendant argues, his sixth-amendment right to have all elements of a crime decided by a jury has been violated, as has his due-process right to be sentenced only for those crimes of which he has been convicted.

In Gerald, this Court held that “a defendant who is convicted of purposely or knowingly causing ‘serious bodily injury resulting in death’ under N.J.S.A. 2C:ll-3a(l) and (2), or either of them — as opposed to one who is convicted of purposefully or knowingly causing death under those same provisions — may not be subjected to the death penalty.” Ibid. In that case, because the jury had not specified whether it had found defendant guilty of serious-bodily-injury murder or intent-to-kill murder, and because on the evidence in the record it could have convicted defendant of the former, the Court reversed the conviction and remanded for a new trial.

The failure to distinguish between serious-bodily-injury murder and intent-to-kill murder has resulted in reversal of the death sentence in several cases. See, e.g., State v. Harvey, 121 N.J. 407, 581 A.2d 483 (1990); State v. Pennington, 119 N.J. 547, 575 A.2d 816 (1990). As we stated in State v. Davis, 116 N.J. 341, 367, 561 A.2d 1082 (1989), the Legislature “never intended that capital sentencing be imposed on a defendant unless the defendant had the purpose or knowledge of a killer.” However, in State v. Pitts, 116 N.J. 580, 562 A.2d 1320 (1989), and State v. Rose, 120 N.J. 61, 576 A.2d 235 (1990), this Court rejected each defendant’s contentions that he could not be exposed to a new capital sentencing proceeding absent a new jury determination of guilt, i.e., whether the defendant in each case intended to kill or to cause serious bodily injury. In Pitts, the defendant had pursued his victims, inflicted multiple stab wounds, and checked to ensure that his victims were dead. In Rose, the Court found “no evidence that could have led a rational jury to conclude that defendant did not know that his conduct would cause the victim’s death.” 120 N.J. at 64, 576 A.2d 235. See also State v. McDougald, 120 N.J. 523, 577 A.2d 419 (1990) (absence of Gerald charge incapable of affecting verdict); State v. Hunt, 115 N.J. 330, 558 A.2d 1259 (1989) (same).

The evidence relating to the Olesiewicz murder introduced at both the original trial and the resentencing proceeding indicated that defendant shot the victim four times in the head from close range while both were in Smith’s car. Smith also testified that defendant had spoken to her about killing someone, and that defendant had killed Olesiewicz because Smith would not wake up and commit the killing. As in McDougald, Rose, Pitts, and Hunt, we conclude that the evidence provides no rational basis on which a jury could conclude that defendant shot Olesiewicz with an intent to cause serious bodily injury rather than death. We find inescapable the conclusion that the jury’s verdict included a finding that Biegenwald intended to kill Anna Olesiewicz when he shot her in the head four times at close range.

This Court has explained that the “own conduct” requirement of the capital murder statute “ ‘is not an element of the offense of murder [but] is merely a triggering device for the death penalty phase of the trial.’ ” Gerald, supra, 113 N.J. at 99, 549 A.2d 792 (quoting State v. Moore, 207 N.J.Super. 561, 576, 504 A.2d 804 (Law Div.1985)). But see 113 N.J. at 146-47, 549 A.2d 792 (Handler, J., concurring in part and dissenting in part) (“own conduct” is element of capital murder); State v. Moore, 113 N.J. 239, 311, 550 A.2d 117 (1988) (Handler, J., concurring in part and dissenting in part) (same). The “own conduct” provision requires that a capital-murder conviction be based on a jury finding that “defendant actively and directly participated in the homicidal act, i.e., in the infliction of the injuries from which the victim died.” Gerald, supra, 113 N.J. at 97, 549 A.2d 792.

The prosecution originally charged both defendant and Dherran Fitzgerald with Olesiewicz’s murder. The charge against Fitzgerald was dismissed in exchange for his testimony against defendant. Biegenwald II, supra, 106 N.J. at 21, 524 A.2d 130. Biegenwald’s defense at the first trial was that Fitzgerald had committed the murder. He produced witnesses who claimed that Fitzgerald had boasted that he had murdered Olesiewicz. Id. at 23, 524 A.2d 130. Defendant now claims that “the jury could have reasonably concluded that while defendant might have helped Fitzgerald to abduct the victim and dispose of her body (thus making him liable for murder as an accomplice), it was Fitzgerald who had fired the fatal shots.” The State counters that “given the factual complex and the trial court’s instruction in this case, the jury's verdict [in the guilt phase] constituted a finding that defendant committed the murder of Anna Olesiewicz by his own conduct.”

Although we agree that a conviction on defendant’s theory would not render defendant death-eligible, Gerald, supra, 113 N.J. at 100, 549 A.2d 792, neither that theory nor the facts or arguments that might have supported it were ever put before the jury. The summations at the trial presented the jury with two starkly-contrasting scenarios: either defendant shot Anna Olesiewicz by himself or, as defense counsel contended, Smith and Fitzgerald killed her. The guilty verdict indicates unmistakably that the jury determined that defendant committed the murder by his own conduct.

2. Denial of Request to Relieve Counsel

Defendant contends that the trial court erred by requiring one of his attorneys, Glen Vida, to continue to represent defendant during the resentencing proceeding and that that error denied him effective assistance of counsel in violation of the sixth amendment to the United States Constitution.

Defendant points to a similar motion by Vida three years earlier in the prosecution of defendant for the murder of Betsy Bacon to establish that a communication gap had developed between Vida, his New Jersey counsel, and Louis Diamond. Diamond, a member of the New York bar, had been admitted pro hac vice to represent defendant in several murder prosecutions against him in New Jersey. Vida indicated in support of that motion that Diamond had not informed him of a guilty-plea-hearing date in connection with one of the other murder prosecutions. Vida also asserted that a dispute unrelated to the Bacon case had arisen between Vida and Diamond. The court denied the motion in respect of the Bacon murder prosecution.

Vida represented defendant on the underlying prosecution through this Court’s determination in Biegenwald II. Following our reversal of the sentence and remand, Vida informed the trial court that his representation of defendant had terminated and that a request had been made of the Office of the Public Defender to represent defendant in relation to the resentencing proceeding. The assignment judge held a hearing to determine who would represent defendant, at which the following colloquy occurred:

THE COURT: The purpose of this Proceeding is to determine Mr. Biegenwald who is going to be representing you on the remand from the Supreme Court. And I have heard conflicting stories from counsel as to who is representing you, whether it is the public defender, whether it would be Mr. Vita [sic passim] or Mr. Diamond, or Mr. Diamond alone.

Who is it that you want to represent you?

MR. BIEGENWALD: I originally hired Mr. Diamond. Mr. Diamond hired Mr. Vita. As far as I am concerned, they both represent me.

THE COURT: All right. Because Mr. Diamond alone cannot represent you in New Jersey; because he is not admitted to practice in New Jersey. He must have local counsel from New Jersey.

Mr. Vita has indicated that he wasn’t representing you any more, and his employment terminated with the Supreme Court appeal.

All right, anyone want to be heard?

MR. DIAMOND: No, Your Honor, I stand ready to try the case if I am allowed to.

THE COURT: Mr. Vita.

MR. VITA: I think we have been over it already Your Honor.

THE COURT: We were over it in chambers, but I think I want it on the record now.

MR. VITA: Sure. My position basically is Your Honor that I think that considering the nature of the penalty that Mr. Biegenwald is facing, that he deserves counsel that are in a tight working relationship. And I don’t know whether or not that is the situation. I had previously discussed it with Mr. Biegenwald. Obviously his desires will have a large impact on what occurs.

THE COURT: Are you aware Mr. Biegenwald of any conflicts between Mr. Diamond and Mr. Vita?

MR. BIEGENWALD: No.

THE COURT: Are you satisfied to have both of them represent you on this remand?

MR. BIEGENWALD: Yes.

THE COURT: All right, I am of the opinion that Mr. Vita, your employment did not terminate with the decision of the Supreme Court. It is not a new trial as to the entire case. It has only been remanded on the death phase. The guilty conviction was affirmed. Accordingly, I will select a trial date and you will be of counsel with Mr. Diamond.

We reject defendant’s contention that the court’s refusal to relieve Vida was error. The decision whether to relieve counsel is committed to the sound discretion of the trial court, with a presumption against granting the request. See State v. Lowery, 49 N.J. 476, 231 A.2d 361 (1967) (policy of courts not to relieve competent counsel absent showing of substantial cause); State v. Smith, 43 N.J. 67, 202 A.2d 669 (1964) (same), cert. denied, 379 U.S. 1005, 85 S.Ct. 731, 13 L.Ed.2d 706 (1965). We cannot find either abuse of that discretion or any resulting prejudice to defendant. Admittedly, the trial court did not explore in detail on the record the nature of the dispute between counsel. The record reflects that the court may nevertheless have been aware of counsel’s differences. Furthermore, Vida’s statement equivocates on whether counsel would be able to provide representation appropriate to a capital-murder defense. The court viewed the resentencing proceeding as a continuation of the original trial. That view, when combined with the lengthy history of this prosecution and Vida’s extensive, five-year involvement with the defense, provides an ample basis for the court’s refusal to relieve Vida as counsel.

We also note that defendant never actually moved to have Vida relieved. Moreover, defendant indicated to the court that he was satisfied to have both Vida and Diamond represent him in the resentencing proceeding. Finally, we find the record devoid of any indication that Mr. Vida’s participation resulted in a failure to provide effective counsel, neglected responsibilities, or “a breakdown in the adversarial process that renders the result unreliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987).

3. Failure to Change Venue Sua Sponte

Defendant did not move for a change of venue at the time of the resentencing proceeding. Nevertheless, he now contends that the trial court’s failure to change venue on its own motion violated his constitutional right to a fair trial. Defendant claims that the publicity surrounding this case was so prejudicial that a fair trial before an impartial jury was impossible. He further contends that the failure to change venue resulted in the jury considering his guilty pleas to two murders in violation of his plea-bargain agreement in another case.

In Biegenwald II, supra, 106 N.J. at 30-37, 524 A.2d 130, we rejected a similar contention with respect to denial of defendant’s motion for change of venue for the initial trial. As we indicated in Biegenwald II,

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 * * [106 N.J. at 32, 524 A.2d 130 (quoting State v. Williams, 93 N.J. 39, 63, 459 A.2d 641 (1983) (Williams I)).]

In capital cases the trial court may in its discretion “change venue when 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, 459 A.2d 641; see State v. Bey, 96 N.J. 625, 630 [477 A.2d 315], clarified, 97 N.J. 666 [483 A.2d 185] (1984).” 106 N.J. at 33, 524 A.2d 130. Because we have adopted “the distinction recognized by the federal courts between cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed,” ibid, (citing Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 1517, 16 L.Ed.2d 600, 614 (1966)), and those in which the publicity is less saturating, see, e.g., Patton v. Yount, 467 U.S. 1025, 1032-35, 104 S.Ct. 2885, 2889-91, 81 L.Ed.2d 847, 854-56 (1984), we must first identify the applicable standard for determining prejudice.

Without question this case does not warrant application of the presumed-prejudice standard. In State v. Koedatich, supra, 112 N.J. 225, 548 A.2d 939, we identified a non-exhaustive list of factors to consider in determining whether prejudice should be presumed: (1) evidence of extreme community hostility against defendant; (2) prominence of either the victim or the defendant within the community; (3) the nature and extent of the news coverage; (4) the size of the community; (5) the nature and gravity of the offense; and (6) the temporal proximity of the news coverage to the trial. Id. at 271-73, 548 A.2d 939. Consideration of those factors (save, of course, the nature and gravity of the offense) leads overwhelmingly to the conclusion that this case does not involve the extreme circumstances that cause a trial atmosphere to be so corrupted by publicity as to produce a presumption of prejudice. Biegenwald II, supra, 106 N.J. at 33, 524 A.2d 130. Consequently, we review the trial court’s failure to change venue under the “actual prejudice” standard, i.e., whether under the totality of the circumstances the voir dire and the trial court’s handling of the jurors resulted in a fair and impartial jury.

In light of an appellate court’s distance from the jury-selection process, we have indicated that deference to the trial court is appropriate. E.g., Koedatich, supra, 112 N.J. at 274-76, 548 A.2d 939. The nature of jury selection inherently requires evaluation of the demeanor of venirepersons, an assessment narrowly circumscribed on appellate review of an unanimated transcript.

Voir dire spanned three days. The trial court admonished the panel both before and after it administered the oath to the jurors that the members should avoid any media coverage of the proceeding. Before individual voir dire the venirepersons were required to fill out a questionnaire that included the following questions:

6. The defendant, Richard Biegenwald, was a resident of Staten Island. Do you know him?

YES_NO _

7. Do you know any member of his family?

YES _NO _

8. Have you ever heard of him?

YES _NO_

19. Before coming here today had you ever heard of a murder case involving Richard Biegenwald from any source whatsoever either today or at any time previously?

YES_NO_

20. Had you ever read of a case involving Richard Biegenwald?

YES_NO _

21. Have you ever discussed him with anyone?

YES __ NO _

Affirmative responses to any of those questions triggered additional probing by the trial court.

On individual voir dire sixty of sixty-four prospective jurors questioned indicated that they were in some way familiar with defendant’s name. The court excused for cause eight venirepersons because it appeared their familiarity with other proceedings involving defendant would impair their ability to comply with their oath. Ten of the twelve deliberating jurors had indicated familiarity with defendant’s name. One deliberating juror indicated awareness that defendant had been implicated with respect to more than one murder. “Jurors who have formed an opinion on the guilt or innocence of a defendant must be excused.” State v. Marshall, 123 N.J. 1, 77, 586 A.2d 85 (1991). However, “we have long recognized that impanelled jurors need not be ignorant of the facts of the case.” Ibid. (citing Koedatich, supra, 112 N.J. at 268, 548 A.2d 939; State v. Sugar, 84 N.J. 1, 23, 417 A.2d 474 (1980)).

Those venirepersons who indicated that they had formed an opinion concerning the appropriate sentence were properly excused. .Although ten of the deliberating jurors indicated some recognition of defendant’s name, their recollections were almost uniformly vague associations of defendant with the Olesiewicz murder and prosecution. The voir dire of the one deliberating juror who indicated awareness of more than one murder does not reflect awareness of any facts not to be presented and considered during the sentencing proceeding:

[Q.] You indicate you have heard the name Richard Biegenwald before?

A. Yes.

Q. Do you recall how it was?

A. Well, I ride to work every day and I had the radio on and it comes on the radio in the past.

Q. How much in the past are we talking about?

A. I have no idea, but I know I heard it on the radio.

Q. Talking about last week or way beyond — back beyond that?

A. I really don’t know.

Q. All right. Do you recall whether it was used in any particular context, like Richard Biegenwald, criminal, or Richard Biegenwald mason, or—

A. No, accused of murder.

Q. Okay, So you associate Richard Biegenwald accused of murder kind of thing?

A. Right.

Q. Anything about the details of the murder you may have recalled?

A. I recall that one of the murders took place I think in Asbury Park, something about Asbury Park.

Q. Okay. Do you recall also there was more than one murder?

A. Yes.

Q. You said one of the murders?

A. Yes.

Q. Now you are thinking about that, was that your recollection of that?

A. I don’t know.

Q. So we have Richard Biegenwald, murder associated with Asbury Park and another murder?

A. Yes.

Q. Okay.

A. You know, if there’s anything more in your head, let me know?

A. That’s about it.

Q. Well, is there anything that you may have heard even though your memory is indistinct which you think might work on you or affect you somehow or other if you sit as a juror here?

A. I don’t think so.

He*******

Q. In other words, you’d stick with what I say and put aside any pre-conceived notions you may have had?

A. Yes.

Q. That’s my job, that’s your oath?

A. Okay.

Q. Then as you sit there and evaluate yourself, knowing what we’re asking all these questions about, do you believe that if you are selected to sit as a juror on this case, that you could be open minded to the proofs that are put to you, that you could weigh the proofs, the good and the bad, weigh both sides, listen to the law as I explain it and then come to a conscientious decision as to whether the penalty should be death or life imprisonment with no parole for at least 30 years?

A. Yes.

THE COURT: Any additional questions?

MR. DIAMOND: Yes, your Honor, if you could inquire, having had the knowledge that he says he does that there were additional murders, does that have an additional effect upon him weighing the mitigating factors than if he didn’t hear about that previously?

THE COURT: All right. With that in mind, you may have heard something about at least another murder floating around, where does that leave you in so far as your ability to decide this case on what’s presented in the courtroom?

THE JUROR: I’d have to take only in consideration what I’m here for.

THE COURT: Well, that’s true, but we want to make sure you are not just saying that to please us but it really is true, that you would put aside whatever it was that you heard?

THE JUROR: Yes.

THE COURT: Okay. The other thing that’s important if you stay here is you do not idly discuss whatever it was that you heard a long time ago on the car radio with any of the other jurors here. Because that’s getting, you understand, outside information some how or other and that’s completely improper?

THE JUROR: Yes, I understand that.

The voir dire of that juror on the issue of pretrial publicity was thorough and extensive. The court offered defense counsel the opportunity to probe further. No challenge or objection was made. We will not second-guess the trial judge’s evaluation of the effect of pretrial publicity on that juror.

We conclude that the jury impanelled was free of any taint from pretrial publicity. The voir dire adequately disclosed exposure to publicity. There was no need to change venue sua sponte or otherwise. Nor do we find that there was any breach of defendant’s plea agreements in other cases because there is no indication that evidence relating to defendant’s other murder convictions entered into the deliberation process.

We pause briefly to consider and reject defendant’s related contentions that two specific circumstances caused him to be denied a trial free of taint from publicity. The first is an article, containing inadmissible and assertedly erroneous information, that appeared in the Asbury Park Press the morning of the second day of voir dire. Defense counsel brought the article to the court’s attention before that day's proceedings commenced, and each prospective juror was asked whether he or she had complied with the court’s frequent admonitions to avoid media coverage. There is no indication that the substance of the article came to the attention of any member of the jury, much less that it infected the jury’s deliberations. The court’s diligence in instructing the jury to avoid media coverage and discussions concerning the case was exemplary, and the presumption that the jury adhered to the court's direction has not been overcome.

Second, defendant objected to the court’s failure to excuse for cause a juror who had knowledge of facts relating to other murder investigations of defendant. The juror was qualified on the third and final day of voir dire and defense counsel excused her peremptorily during that same morning session. Defense counsel also moved for a mistrial based on the juror’s presence in the jury room, colorfully characterizing her as a “hand grenade” that might trigger mass recall of inadmissible evidence by the other jurors.

Although the argument that the juror should have been excused for cause is persuasive, we find the failure to have excused her unproblematic for several reasons. Foremost the juror did not deliberate; she was excused peremptorily shortly after she had been qualified. Consequently, the juror’s presence in the jury room was brief and ended before the jury was exposed to the evidentiary phase, which, particularly in a murder case such as this one, can understandably pique the urge to discuss the case. Of equal importance is the judge’s scrupulous reminder to each qualified venireperson that any discussion about the case was strictly forbidden, particularly his admonition to that juror:

MR. DIAMOND: Judge, I have no more questions. Could we instruct the proposed juror on the items we discussed here, they were not to be discussed with any of the other jurors at any time.

THE COURT: Oh, I tell each juror and I will tell [this juror] when you go into the jury room you are not supposed to discuss this with anybody there. The only time to do any discussing about this case at all with your fellow jurors if you sit is when you are deliberating at the end of the case.

A. Yes, I understand that.

MR. DIAMOND: I’m sorry, would that also include any prior knowledge?

THE COURT: Anything relating to this case, I think that’s pretty clear and this lady seems to understand that and I’m not going to fine tune it because you don’t understand it. Okay? You understand what I’m saying?

The juror indicated that she had not had discussions relating to defendant with any person other than her husband; we are unpersuaded that there is a reasonable likelihood that she infected the jury during her brief stay in the jury room.

—C—

ADEQUACY OF VOIR DIRE

Defendant contends that the voir dire for the resentencing proceeding was inadequate in several respects. First, he argues that the trial court erred by failing to define murder for the jury panel and by refusing defense counsel’s requests that potential jurors be asked in which types of cases they would be willing to impose the death penalty. According to defendant, those errors combined to deny him his constitutional right to a fair and impartial jury.

Second, defendant argues that the court erred by refusing to inform potential jurors that defendant had prior murder convictions and by failing to probe whether knowledge of those convictions would impair their ability to determine punishment in accordance with the law. Essentially, defendant claims that the voir dire failed to identify jurors who would “automatically” sentence a triple murderer to death without considering evidence of mitigating factors. Because such jurors would have been excludable for cause, defendant contends that the trial court’s ruling denied him his constitutional right to a fair and impartial jury.

Finally, defendant contends that the exclusion for cause of Stephen Ficsor because he acknowledged that imposing the death penalty would be “very difficult” denied him his constitutional right to due process and a fair and impartial jury. Underlying those contentions, and the venue challenge discussed supra at 20-27, 594 A.2d at 181-185, is the argument that the voir dire as a whole was insufficient in scope and depth to ensure sentencing by a fair and impartial jury.

The contention relating to Ficsor is meritless. The questioning of that juror demonstrates that there was ample reason to doubt his ability to follow the law or to abide by his oath. He indicated dissatisfaction with the limited sentencing options available. He also could not say that he could sentence a person to death even in the case of a gruesome killing. The record indicates a sufficient basis for the trial court’s decision that Ficsor’s ability to act as a juror was substantially impaired within the meaning of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). See State v. Ramseur, supra, 106 N.J. at 256, 524 A.2d 188.

Although we do not rely on it, we also note that counsel did not object to the exclusion of Ficsor, nor did he request further questioning. We reject defendant’s contention that the trial court abused its discretion by excusing Ficsor on the basis of such a sterile record. See State v. Hunt, supra, 115 N.J. at 357, 558 A.2d 1259 (sound measure of discretion in trial court to determine whether potential juror’s views would prevent or substantially impair his or her ability to decide sentence).

Defendant’s remaining arguments, however, present more difficult problems. Taken together, the alleged errors and omissions raise serious doubts about the efficacy of the jury-selection process. The similarities between this voir dire and the one addressed in Williams II, supra, 113 N.J. 393, 550 A.2d 1172, are plentiful, obvious, and disturbing. That neither defendant nor the State exhausted its complement of peremptory challenges is of no consequence if the voir dire failed to produce sufficient information to allow counsel or the court to challenge prospective jurors intelligently, either for cause or peremptorily. As this Court stated in Williams II,

counsel must be afforded the opportunity for a thorough voir dire to evaluate and assess jurors’ attitudes in order to effectively participate in jury selection. If counsel is unable to screen out prejudice and bias, that inevitably leads to unfair juries. This result — or the possibility of this result — cannot be tolerated. [Id. at 409, 550 A.2d 1172 (emphasis added).]

The right to a fair and impartial jury is guaranteed under both the federal and the state constitutions. U.S. Const. amends. VI & XIV; N.J. Const. art. I, para. 10. The protection afforded that fundamental right is heightened in capital cases. Ramseur, supra, 106 N.J. at 324 n. 84, 524 A.2d 188.

In Williams II, we were faced with the issue of whether the trial court had abused its discretion when it refused to ask jurors who favored the death penalty in some cases whether they would automatically favor the death penalty if the defendant had committed murder and rape, as alleged in the indictment. We held that the refusal to pursue that line of inquiry was “serious error” and “a significant component of the deficiencies” that necessitated reversal of both the sentence and the conviction of that defendant. 113 N.J. at 417, 550 A.2d 1172.

[I]t follows that a juror who will not, or cannot, consider relevant mitigating evidence pertaining to the defendant because the crime involves rape and murder is “substantially impaired” under the Adams- Witt test. Therefore, the failure to inquire into whether any juror could consider the mitigation evidence if it was established that defendant was guilty of rape and murder denies counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role in this case. [Ibid. ]

With the mere interchange of “another murder” for “rape,” that reasoning is equally applicable to the present circumstances.

The State now argues that Williams II is somehow distinguishable on this issue. We disagree. In both cases, the line of questioning disallowed by the trial court related to a statutory aggravating factor the existence of which jurors are expected — indeed, if established, obligated — to consider in their sentencing deliberations. That the rape in Williams II was intertwined with the circumstances of the murder for which that defendant was being prosecuted, while the other murders to be considered in this case arose out of separate occurrences, is of no moment. Any distinction stems merely from the wording of the provisions enumerating the aggravating factors. Compare N.J.S.A. 2C:11-3c(4)(g) (“offense was committed while the defendant was engaged in the commission of * * * [a] sexual assault”) with N.J.S.A. 2C:ll-3c(4)(a) (“defendant has been convicted, at any time, of another murder”).

The inquiry in both cases goes beyond the level of precluding intrusion into the sentencing determination of non-specific-statutory aggravating factors. In Williams II, we recognized that the brutality of a rape and murder could blind venirepersons in the performance of their duties as jurors. Similarly, we are convinced that knowing a defendant had killed before could cause an otherwise fair-minded person to disregard evidence offered in support of mitigating factors. Cf. D. Baldus, G. Woodworth & C. Pulaski, Equal Justice and the Death Penalty 318-20 (1990) (reporting probability that sentence of death will be imposed increased by 520 percent for each prior murder conviction).

The reasoning of Williams II is not limited to circumstances surrounding the murder for which a defendant is being prosecuted. Under the United States Constitution and our system of capital punishment, the sentencer must consider not only “the circumstances of the particular offense” but also “the character and record of the individual offender.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976); accord Williams II, supra, 113 N.J. at 417, 550 A.2d 1172. Hence, the voir dire should include questioning about evidence of aggravating factors that will be presented during the sentencing proceeding and that may with reasonable likelihood have such an effect on a prospective juror as to render him or her “substantially impaired” under the Adams-Witt standard.

The State also argues that Williams II is distinguishable because there — unlike this case — defendant exhausted his allotment of peremptory challenges. That contention misperceives the problem created by the refusal to permit voir dire about the impact of other murder convictions on prospective jurors. By prohibiting that inquiry, the court “denied counsel and the trial court the tools with which to insure that the jury panel could fairly undertake its role.” Williams II, supra, 113 N.J. at 417, 550 A.2d 1172. Whether defendant exhausted his allotment of peremptory challenges is not dispositive. The refusal to inquire about the effect of other murder convictions denied defendant the information necessary to exercise those challenges intelligently and effectively. Furthermore, the inquiry might have identified jurors who were unable to consider relevant evidence in support of mitigating factors when faced with a recurrent murderer. Such jurors would have been excusable for cause under our capital-punishment system. Ibid.

In ruling that questioning concerning the impact of other murders is not required, the trial court concluded that such an inquiry would amount to “shopping with the jurors to find out when their tendencies will be overborne to a point where they go for death.” Although the court may have been correct in its characterization, it erred in its implicit conclusion that “shopping” is not permissible or appropriate. In fact, it is necessary. We return again to Williams II:

Once the trial court has elicited from each juror sufficient information concerning that person’s predilections * * * then counsel’s ability to formulate and argue for excusal for cause is enhanced. More importantly, the trial court will have a more complete record on which to apply the Adams- Witt standard in granting or denying excusáis for cause. This enhanced record is imperative to preserve society’s interest in a fair trial. Greater disclosure will also undoubtedly aid both the defense and prosecution in the exercise of their respective peremptory challenges. [113 N.J. at 413, 550 A.2d 1172.]

As we recently stated in State v. Moore, 122 N.J. 420, 446, 585 A.2d 864 (1991), “voir dire acts as a discovery tool.”

It is not enough just to ask jurors in a capital case whether the nature of the crimes would affect their ability to be fair in deliberating on a death sentence versus a term of years. The question is correct so far as it goes, but it really invites only one answer. [Id. at 449, 585 A.2d 864.]

In Moore we explained that State v. Manley, 54 N.J. 259, 255 A.2d 193 (1969), does not compel such a limited voir dire. In Manley the Court revised the procedures for conducting voir dire in response to abuse of such procedures by counsel:

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, 255 A.2d 193.]

The new procedures returned to the trial court the primary responsibility for conducting voir dire. We held in Biegenwald II, supra, 106 N.J. at 29, 524 A.2d 130, that those revised procedures applied to capital-murder cases. Regrettably, we perceive from the records in many of the cases coming before us that trial courts have read Manley, in conjunction with Adams and Witt, to limit voir dire to the bare minimum necessary to qualify a juror. See State v. Dixon, 125 N.J. 223, 593 A.2d 266 (1991); State v. Moore, supra, 122 N.J. at 445, 585 A.2d 864 (“One of the problems that we have in capital cases is that the constitutionally-limited Adams-Witt standard for disqualification of jurors in capital cases * * * gets confused with the more general inquiry into juror predispositions or preferences that should mark the general jury-selection process.”). The procedures set forth in Manley and those approved by Adams and Witt are minimum requirements. Blind adherence to those standards and procedures does not necessarily produce a thorough and searching voir dire. An adequate voir dire should incorporate the suggestions of Williams II and Moore with an eye toward providing counsel and the court with the tools necessary to perform their respective tasks comprehensively and intelligently.

We note in this case that the State, to its credit, acknowledged the need for inquiry about other murder convictions during voir dire. It brought the opinion in Williams II to the trial court’s attention and even went so far as to submit a proposed question for the court to use:

As I previously advised you, the decision as to what is the appropriate penalty in connection with this matter will depend upon the existence of aggravating factors and mitigating factors and you will then weigh these as I will instruct you at the end of this case.

The legislature has listed a number of aggravating factors and has also listed a number of mitigating factors. One of the aggravating factors the legislature has listed and the State contends exists is that the defendant * * * had been previously convicted of murder. Could you consider the mitigating evidence even if the State proved that the defendant had previously been convicted of murder?

Without endorsing the exact question proffered by the prosecution or suggesting that a single question can accomplish the task, we are impressed with the obvious merit of the State’s proposal. In light of Williams II — and particularly in light of the positions of the parties — the trial court’s refusal to inquire about the impact that knowledge of other murder convictions would have on the ability of prospective jurors to credit or consider the evidence in mitigation is mystifying.

The refusal to permit questioning on the impact of other murder convictions during voir dire constitutes serious error. Such error, however, is not irremediable. Defendant’s sentence may be upheld if the voir dire was otherwise so thorough and probing as to ensure that the jurors empaneled had the “capacity to credit the evidence in mitigation,” State v. Bey, 112 N.J. 123, 154, 548 A.2d 887 (1988) (Bey II), and the ability to perform their duties in accordance with the court’s instructions and their oaths, see Adams v. Texas, supra, 448 U.S. at 45, 100 S.Ct. at 2526, 65 L.Ed.2d at 589. On reviewing the jury-selection process as a whole, we conclude that it was constitutionally flawed.

Notwithstanding the broad discretionary powers vested in the trial court regarding the jury-selection process, Biegenwald II, supra, 106 N.J. at 37, 524 A.2d 130; State v. Jackson, 43 N.J. 148, 160, 203 A.2d 1 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965), we have suggested several ways of ensuring an efficacious voir dire, particularly in capital cases. The near-total absence here of use of methods recommended for conducting voir dire leaves us unable to conclude that defendant’s right to a fair and impartial jury was not abridged.

In Williams II, supra, 113 N.J. 393, 550 A.2d 1172, and Williams I, supra, 93 N.J. 39, 459 A.2d 641, we suggested several approaches to conducting an adequate voir dire in capital cases. We identified the use of open-ended questions as “an important ingredient” in the death-qualification inquiry. Williams II, supra, 113 N.J. at 413, 550 A.2d 1172. We also endorsed the practice of providing prospective jurors with an outline of this state’s death penalty statute and questioning them regarding their opinions of the statute. Id. at 412-13 n. 5, 550 A.2d 1172. We indicated that posing “hypothetical examples to probe how various factors might affect a person’s decisionmaking process” is proper. Ibid. Particularly revealing in relation to defendant’s contentions about the failure to define murder is the following:

Knowledge about what constitutes capital murder * * * and the use of the “aggravating and mitigating factors” scheme during sentencing will enable all potential jurors to answer questions concerning the death penalty free of misconceptions and faulty assumptions concerning how the law is administered in this state. [Ibid.]

In Williams I, we were presented with the conflict between a defendant’s right to a fair trial and the media’s right of access to newsworthy occurrences. We suggested as an alternative to closure of the proceedings that the trial 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 [concerning] potential bias.” 93 N.J. at 68, 459 A.2d 641. Indeed, we have noted that “in capital cases trial courts should be especially sensitive to permitting attorneys to conduct some voir dire.” Biegenwald II, supra, 106 N.J. at 30, 524 A.2d 130. Finally, we have indicated that the court should “consider whether there should be a greater willingness to resolve doubts in favor of the defendant in excusing jurors for cause.” Williams I, supra, 93 N.J. at 68, 459 A.2d 641.

The voir dire in this case, as in many other cases, proceeded in a consistent, if not monotonous, pattern. After the prospective jurors had completed the questionnaire, the court conducted individual examinations beginning with review of the answers on the questionnaire. Most potential jurors were questioned concerning their prior knowledge of Biegenwald or cases involving him. Each person was asked for his or her views on the death penalty. The court then followed up with questions concerning the potential juror’s ability to follow the law as instructed. The court also questioned prospective jurors concerning their willingness to credit psychiatric testimony. Questioning by counsel was minimal and proceeded almost entirely through the court.

On at least eight occasions, the court rejected defense counsel’s request, based on the potential juror’s response to the individualized questioning, for additional inquiry about a venireperson’s views on the death penalty. That is in addition to rejecting defense counsel’s request for such questioning as a matter of course.

A review of the voir dire of juror Mitchell provides a sense of the court’s approach to death qualification:

Q All right. The obligation of the jurors here in this trial is a limited one as I explained, has to do with which penalty is appropriate to this situation based upon aggravating factors that are presented and mitigating factors that are presented unless those words throw you, I don’t think they should, but aggravating factors would be those things which would tend to lean you towards the death penalty, mitigating factors would tend to lean you away from the death penalty and toward life imprisonment with no parole for 30 years, those are the two options?

A Yes.

Q Since death is a possible option, what do you think generally about the death penalty?

A It applies in certain cases and sometimes it doesn’t, it’s not something that I have taken a position on definitely, that it goes or doesn’t go in cases.

Q There are some people conscientiously think the death penalty should never be imposed and they are entitled to that view. That’s not your view?

A No.

Q There are also some folks who are more, if you will, hard-nosed and they would say if there is a murder involved whoever is convicted of that murder should get the same penalties, death penalty. Are you of that persuasion?

A No, I think you have to weigh each case by its merits.

Q Okay, part of the evidence that will be presented to you is that of Dr. Eshkenazi, I mentioned his name yesterday, he’s a psychiatrist. Anything about psychiatric testimony which you think is less worthy of acceptance than maybe other kind of medical testimony?

A No, sometimes, in some cases it’s very valid.

Q At the end of the case after you have heard all the evidence on the aggravating and mitigating factors, I’ll be explaining to all the jurors who sit how they should handle those and what principals [sic] of law apply to the decision. I tell you that your obligation under your oath is to accept the law as I explain it and not to substitute for it your own views as to what you think the law is or what it ought to be, you think you can do that?

A Yes, sir, I do.

Q Sitting there now and knowing it’s important to all of us, you think that if you are selected as a juror on this case you would be able to sit, listen in that open minded way that I have described before, make your evaluation and then decide what is the appropriate penalty and do that fairly, objectively and conscientiously?

A I believe so.

THE COURT: Any additional questions of the prospective juror?

‡^‡‡*#**

MR. DIAMOND: Judge, before the next witness is called, I seem to have a problem, not with you, your Honor, but the answer, the nature of the answer that a lot of them are giving is always the same answer. It would depend upon the facts and it just seems to me there is a coachment in there like I believe it’s Mr. Sacchi who said before that, you know, he wouldn’t want somebody who has come out of jail and he heard [sic: hurt] somebody else again, I have the terrible feeling in my mind, it depends upon the facts, depends upon the facts that he murdered more than one person.

THE COURT: Depends upon the murder, depends upon the circumstances, but their answer is their answer, you know, you may not like that answer but it’s absolutely the correct answer.

MR. DIAMOND: I agree, I realize it’s the correct answer for the person and if it’s all of them who believe anybody who kills more than once, then there’s no question in my mind, it’s a tough thing, I know it’s a tough thing. I wonder if there’s something we could ask them what they mean by that. If they could elaborate on that aspect a little bit more.

THE COURT: You come up with a question, give it to me sometime.

MR. DIAMOND: The question is simply, Judge, depending on the circumstances, what are the circumstances?

THE COURT: No, because then I’m shopping with them. They will say gee, if he stabbed him in the back 16 times or—

MR. DIAMOND: It’s not a question of shopping, you are asking them already the simple question that “can you sit on a murder case and do you feel you would always vote for the death penalty or you would never vote for it?” Once you asked that question you are in the market place. This question of shopping only applies if we’re going to go up and down the scale. It’s not like it’s a mark-down today and it’s going to be four murders tomorrow. Always going to be three murders, no shopping involved at all.

We know there are three murders, they should be allowed to know there are three. At least ask them if under certain circumstances, they may have some outlandish reason, if they all seem to say if a person killed somebody more than once and not put to death, then we’re going to do it this time. That's not shopping. We know the specific amount, we’re not haggling over the price, there’s three murders. If you are not going to do that, at least ask them what they mean when they say special circumstances on their mind already, it’s not a shopping expedition.

THE COURT: Okay, you speak in colorful language, I’m satisfied the questioning so far is in accordance with constitutional mandates and I’m not going to go beyond that as you suggest unless there’s something in the specific answer, not that general answer which is, you know, God knows the right answer, we assume most people are that way, that they are willing to weigh and it will depend upon the circumstances, that’s the right answer.

I’m not going to ask them what kind of circumstances would cause you to go one way or another. No, I’m not going to do that.

MR. DIAMOND: Well, would you ask—

THE COURT: No more, I have ruled.

MR. DIAMOND: Stop you from weighing—

THE COURT: Don’t keep coming back at me with another "if.” I have ruled.

The suggestion in the colloquy that there is a “correct” answer to the open-ended question “what are your views on the death penalty?” is most troubling. Although such an open-ended question is undeniably a proper jumping-off point for death qualification, the vapid response “it depends on the circumstances” in no way reduces the need for additional probing of a venireperson’s views on the appropriateness of the sentence of death. The purpose of voir dire is not to elicit from a potential juror the correct answer; it is to draw out the potential juror’s views, biases, and inclinations and to provide both counsel and the court the opportunity to assess the venireperson’s demeanor. We reiterate that voir dire should proceed with the conscious object of providing court and counsel alike with sufficient information with which to challenge potential jurors intelligently — whether for cause or peremptorily.

The court’s initial open-ended question and variations on the “it depends” response were too often followed by closed-ended, suggestive questions that, not surprisingly, elicited the obvious “correct” response. For example, venireperson Black responded to the question “what do you think about the death penalty?” in this way:

A Personally it’s really more up to how the state of the victim was, the person was with the defendant, at the time was he mentally out of control, but I have no views, really, I don’t go either way, never sat down and thought about killing somebody because of a crime.

Q Well, are you saying that your judgment will depend upon what proofs are presented to you?

A Yes.

Q Depending upon the proofs, you could go either towards the death penalty or towards life imprisonment one way or the other?

A Yes.

Q All right. As I said to the jurors, what will be presented will be evidence on what are called aggravating factors and mitigating factors, those are big words, really come down to pluses and minuses as to the individual, Mr. Biegenwald.

Do you think you could listen to all the pluses and minuses and then under the law as I’ll explain it decide what the right penalty should be?

A Yes. [Emphasis added.]

The court invited additional questions from counsel, but defense counsel declined. Ms. Black was later excused peremptorily by the State.

In one instance, when the response of the venireperson raised the issue of the impact of another murder conviction, the court did assure itself that the potential juror would remain open to the option of life imprisonment. Venireperson Russo answered the general query concerning his views on the death penalty this way:

A I think it’s good in some ways, if a person is — I mean has committed a murder, I mean if it’s so strict they have committed more than one murder, I do believe in the death penalty, I think that’s the right way.

Q If they have committed more than one murder?

A Yes.

Q So that you would be inclined towards the death penalty if that were presented to you?

A Yes.

Q If it were presented to you, would that mean that you wouldn’t pay any attention to what the mitigating evidence was?

A No, I mean, the factors are there that it was to a certain degree more brutal than another murder per se, I wouldn’t lean more towards the death penalty.

Q But even with another murder in your words, would you still be willing to listen and open to the possibility that the mitigating factors might still outweigh even that?

A Oh, yes, I’d listen, yes.

Q So even with another murder, it’s possible, I think from what you said, you still could vote for life imprisonment with no parole for at least 30 years?

A Yes.

Q Depending upon what you hear?

A Yes.

Q Understand I’m not trying to lead this perspective [sic] juror but that’s the way I hear him saying his responses to me.

At the end of the case I’ll be explaining what the law is, how the jury is to approach their decision, that’s really what the law comes down to. Do you believe you’d be willing to accept that law as I explain it without tinkering with it in your own mind to suit your own views?

A Yes.

Defense counsel excused Russo peremptorily. Were that method of questioning employed throughout the voir dire process, our result might well be different. Unfortunately, we find that the death-qualification questioning of Mr. Russo was the exception and the interrogation of Ms. Black is representative of the normal course.

The error of refusing to probe more thoroughly the death-penalty views of the jurors was compounded by the absence of indoctrination on the applicability of the death penalty and the crime of murder. The court identified the basis for Biegenwald’s murder conviction during the general voir dire:

To assist you in answering some of the questions it will be necessary that you have some understanding of the charge that was contained in the Indictment upon which Richard Biegenwald has been found guilty of murder. The Indictment in that regard reads that Richard Biegenwald, on or about the 28th or 29th day of August, 1982, in the City of Asbury Park, did commit the crime of murder of a girl by the name of Anna Olesiewicz. Her name will come up and that’s the charge and he’s been found guilty of that. He did that.

When the response of a venireperson indicated a possible misunderstanding of the law, the court attempted to clarify by disclosing that a death sentence could be imposed only on a defendant convicted of murder. Although we agree with the observation of the State that “murder is not such an uncommon occurrence in our society,” we do not accept the proposition that the average juror should be expected to be capable of drawing the legal distinction between capital murder and other killings. In fact, the responses of more gregarious venirepersons suggest that without instruction, they are not so capable. One prospective juror indicated that the death penalty would be appropriate in some cases but not for accidental killings. Another indicated that her decision would depend on whether the defendant was “mentally out of control.” The death-qualification questioning of venireperson Luzzati demonstrates the potential prejudice that could arise from the failure to educate potential jurors:

[Q] What are your own views of the death penalty if we might ask?

A It’s how serious the crime was, if it was cold blooded murder, I feel that his life should be taken, too. If it was an accident, that’s something totally different.

Q If it’s an accident it’s not murder.

A I don’t know what the circumstances were.

Q There’s no such thing as accidental murder.

A That’s the way I feel about it.

Q All right. Are you saying then that if it’s a real murder, the death penalty ought to be imposed?

A From what I can understand, just from what you had told us.

Q No, what I told you was there were two options, that’s what I told you.

A I feel if it was intentional, then his life should be taken, too.

Q You can’t have a murder without it being intentional?

A Then his life should be taken.

Mr. Luzzati was excused; however, the exchange evinces the danger inherent in a procedure wherein equivocal answers to the initial open-ended question were followed by lengthy questions that suggested the “correct” response. To admonish a potential juror that “we’re talking only about murder here” is ineffective in the absence of an explanation of the meaning of murder under New Jersey law. In common parlance, murder and killing are interchangeable. Murder as used in the criminal-law system has a precise meaning, and capital murder is even more narrowly circumscribed.

With the notable exception of the court’s initial question concerning a venireperson’s views on the death penalty, the routine examination consisted of a series of leading, closed-ended questions. Although the court invited follow up from counsel, it refused to allow such inquiry at critical points. The court failed to educate the potential jurors concerning the laws of New Jersey relating to murder and capital punishment except in the most general terms. It rejected hypothetical questions designed to draw out bias and predisposition.

We acknowledge the paucity of objection by defense counsel. However, whatever lack of zealousness and vigor one might ascribe to defense counsel in no way diminishes our duty to ensure that defendant is sentenced by a fair and impartial jury, each member of which is capable of considering evidence in support of aggravating and mitigating factors before reaching a conclusion on the appropriate punishment. The lapses in the voir dire employed here foreclose a conclusion that jury members were properly death-qualified. “The right to a fair trial must be diligently protected to insure that all defendants, regardless of the crime charged or the weight of the evidence produced, are tried by a fair and impartial jury.” Williams II, supra, 113 N.J. at 409, 550 A.2d 1172; accord Williams I, supra, 93 N.J. at 61, 459 A.2d 641 (“The death penalty is a categorical imperative for trial fairness.”).

No matter how convinced we may be of defendant’s guilt, unless we are similarly convinced of the jury’s impartiality, we cannot allow the death penalty to be imposed. When the basic procedure designed to assure that impartiality — challenges for cause, peremptory challenges, and a searching voir dire— are improperly applied so as to seriously weaken their combined effectiveness, a new trial is necessary. [Williams II, supra, 113 N.J. at 445, 550 A.2d 1172.]

We are unable to conclude that the inadequacy of the death-qualification process was harmless error. Nor can we attribute that inadequacy to a strategic decision by defense counsel. See State v. Marshall, supra, 123 N.J. at 93, 586 A.2d 85. Because the jury may have included members who were “substantially impaired,” the sentence must be set aside.

Mu’Min v. Virginia, — U.S. -, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), confirms that “the subject of possible bias from pretrial publicity must be covered — which it was — but that questions specifically dealing with the content of what each juror has read [need not] be asked.” Id. at-, 111 S.Ct. at 1908. Here, not only was the specific question about the prior murder convictions rejected, but the subject was not covered sufficiently or almost at all. Justice Stein ignores the deficiencies that compound the error of not asking about the impact of the prior-murder-eonviction factor — i.e., the lack of open-ended questions, hypothetical questions, prior-murder-conviction questions based on individual responses, and instruction on what constitutes “capital murder” in New Jersey. See post at 105, 594 A.2d at 229 (Stein J., dissenting). The subject of possible blinding bias from that known factor — bias that would render a potential juror excludable for cause — simply was not covered. Hence, we do not read Mu’Min to compel a result different from ours.

Finally, we recognize that our finding that defendant is entitled to voir dire potential jurors on the possible blinding impact of the c(4)(a) factor most likely will require a two-jury system for all capital cases in which the State seeks to prove that factor. That is because aggravating factor c(4)(a), unlike all other aggravating factors, is proved by evidence not generally admissible during the determination of guilt or non-guilt. See Evid.R. 55.

One of the purposes of the bifurcated-trial system established by the New Jersey Death Penalty Act is to prevent the jury’s determination of death-eligibility from being influenced by evidence relevant only to adjudgement of the appropriate sentence. See State v. Pinnell, 311 Or. 98, 121, 806 P.2d 110, 116 (1991) (“One of the purposes of the bifurcated trial is * * * to prevent the jury’s verdict on [non-guilt] or guilt from becoming tainted by evidence of defendant’s bad character that is admissible only in the penalty phase.”). Although a single jury is preferable, the Legislature has explicitly provided for empaneling a separate jury for the sentencing proceeding on a showing of “good cause.” N.J.S.A. 2C:11-3c(1); cf. State v. Long, 119 N.J. 439, 475, 575 A.2d 435 (1990) (recognizing that other-crimes evidence admissible during guilt phase may be too prejudicial during penalty phase and be irremediable by a limiting instruction); State v. Moore, supra, 113 N.J. at 277, 550 A.2d 117 (recognizing that when limiting instructions are insufficient to protect a defendant from prejudice from other-crimes evidence, court may have to impanel a new jury for the penalty phase).

Prior-murder convictions are relevant to the determination of the appropriate sentence because the sentencing phase focuses in part on the character of the defendant. The guilt phase, however, is limited to a determination of what the defendant did. See United States v. Myers, 550 F.2d 1036, 1044 (5th Cir.1977) (“A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not who he is.”), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed. 2d 149 (1978). Because of the prejudice that could be engendered by voir dire prior to the guilt phase about a defendant’s other murder convictions that are not otherwise admissible as evidence during that portion of the case, see Evid.R. 55, that questioning should almost invariably come only after a jury has found a defendant death eligible. See Pinnell, supra, 311 Or. at 121, 806 P.2d at 116 (finding that “objective of a bifurcated trial was thwarted” by voir dire before guilt phase that “implied that defendant had previously been convicted of other crimes”).

—D—

OTHER ISSUES

Because the ease must be remanded for a new sentencing proceeding, we address only those remaining issues that may arise on remand.

1. Mitigating Factor c(5)(h)

Before the sentencing proceeding, defense counsel requested that several factors relating to sympathy and to Biegenwald’s personal history and prior sentences be charged separately to the jury. At the pre-sentencing hearing counsel expanded the request to include listing the factors individually on the special verdict form. Defense counsel argued that in adopting N.J.S.A. 2C:11-3c(5)(h) (c(5)(h)) (mitigating factors include “[a]ny other factor which is relevant to the defendant’s character or record or to the circumstances of the offense”), the Legislature intended that if the evidence established multiple non-specific-statutory factors, they should be presented to the jury individually rather than merely as evidence of one catch-all factor. Counsel asserted that in order to ensure fair consideration of non-specific-statutory mitigating factors, the factors should be listed on the jury-verdict sheet. According to defense counsel, to require jurors to remember the other factors would be to trivialize those factors, particularly in light of the listing of statutory aggravating and mitigating factors. On appeal defendant presses further, arguing that relegating to secondary consideration the other factors submitted pursuant to c(5)(h) contravenes the United States Supreme Court’s mandate that

the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering os a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. [Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 990 (1978); accord Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); id. at-, 110 S.Ct. at 1201, 108 L.Ed.2d at 333 (Marshall, J., dissenting) (indicating unanimity on the ruling in Lockett); State v. Ramseur, supra, 106 N.J. at 294-95, 524 A.2d 188.]

The State did not oppose generally charging or listing the requested factors individually, although it objected to one proposed factor on the basis of relevance. The State did voice concern, however, that if the court were to list the factors requested by defense counsel, the jury might conclude that those were the only factors to be considered and would “totally disregard something that neither defense counsel nor the court had considered as a mitigating factor.” Expressio unus est exclusio alterius. The court, citing the concern raised by the State, denied the request to list the proffered factors separately but indicated that it would allow defense counsel to point out the factors in his summation. The court also indicated that in charging the jury on c(5)(h), it would mention the evidence tending to support the defense’s argument.

We have long recognized, as has the Supreme Court, that “above all, capital sentencing must be reliable, accurate, and nonarbitrary.” Saffle v. Parks, 494 U.S. 484,-, 110 S.Ct. 1257, 1262, 108 L.Ed.2d 415, 427 (1990); accord Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

[Decisions to impose the death sentence [must] be consistent (in the sense of consistency with other decisions to impose or not to impose death) and * * * reliable (in the sense that the individual defendant is deserving of the punishment). Sometimes conflicting, the two principles of consistency and reliability reflect the increased demands of accuracy and fairness, rising to constitutional dimension, in the implementation of this unique criminal sanction. [Ramseur, supra, 106 N.J. at 185, 524 A.2d 188.]

Consistent procedural treatment of mitigating factors in capital-sentencing proceedings advances those interests of fairness, reliability, and justice. We are aware that in at least one other capital-murder prosecution, non-specific-statutory mitigating factors proffered by the defendant were listed on the jury-verdict form. (The jury sentenced that defendant to life imprisonment with a thirty-year period of parole ineligibility.) Any other factor “relevant to the defendant’s character or record or to the circumstances of the offense,” N.J.S.A. 2C:11-3c(5)(h), that a defendant submits for consideration and that could be established by some reliable evidence, see N.J.S.A. 2C:11-3c(2), should be listed on the jury-verdict form. That does not mean that every factor proffered by a defendant must be listed. See State v. Gerald, supra, 113 N.J. at 103, 549 A.2d 792 (sentence of co-defendant inadmissible); Bey II, supra, 112 N.J. at 146, 548 A.2d 887 (evidence of general non-deterrent effect of death penalty inadmissible). The trial court must evaluate the factors offered by a defendant in accordance with the language of c(5)(h).

The State argues that were a court to list non-specific-statutory mitigating factors on a defendant’s request, jurors might conclude that they would be precluded from finding and giving effect to mitigating factors not listed, possibly thereby violating Lockett. That contention is without merit for at least two reasons. First, we are not persuaded that a procedure that permits a defendant to itemize for the jury those mitigating factors on which he or she relies possibly violates Lockett. Furthermore, and perhaps more importantly, listing non-specific-statutory mitigating factors does not diminish the trial court’s responsibility to inform the jury how mitigating evidence may affect its decision. The jurors must be told that the list of mitigating factors is non-exclusive and that mitigating factors other than those listed may be found and considered whether or not non-specific-statutory mitigating factors are listed on the jury verdict form. California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934, 942 (1987) (O’Connor, J., concurring) (“the jury instructions — taken'as a whole— must clearly inform the jur[ors] that they are to consider any relevant mitigating evidence about a defendant’s background and character”); Bey II, supra, 112 N.J. at 169, 548 A.2d 887 (“The requirement that capital sentencing must not preclude consideration of relevant mitigating circumstances would be hollow without an explanation of how the evidence can mitigate the imposition of the death penalty.”). See generally Judges Bench Manual for Capital Cases XXXI.C., at 141-42 (1990) (same).

The State’s less-paternalistic arguments that listing of nonspecific-statutory mitigating factors is not required are equally unpersuasive. The contention that listing separate factors under c(5)(h) will lead to impermissible double counting of mitigating factors has been addressed previously. See State v. Pennington, supra, 119 N.J. at 599, 575 A.2d 816 (“The court should instruct the jury that the same evidence may be used to prove multiple mitigating factors.”). Furthermore, the treatment of aggravating factors — e.g., limiting possible aggravating factors to those enumerated in N.J.S.A. 2C:11-3c(4), considering multiple murder convictions as evidence of only one aggravating factor — is not relevant to the treatment of mitigating factors, nor can it be. Jurors must be permitted to consider and give effect to any mitigating evidence. Conversely, sentencers are strictly limited in their deliberations to consideration of only those aggravating factors set forth in N.J.S.A. 2C:11-3c(4).

Common sense compels the determination that when evidence of wholly-unrelated circumstances is offered pursuant to c(5)(h), it is not intended to be considered as a single factor by the sentencer. The language of the provision is too broad to permit a contrary conclusion. For example, a defendant could offer evidence of a violent and abusive childhood, of his or her potential for rehabilitation, and of specific past acts of discrimination against the defendant. To consider that evidence as probative of only one factor is not only illogical but also runs afoul of the requirement that mitigating circumstances receive individualized consideration. See Bey II, supra, 112 N.J. at 161, 548 A.2d 887. Each circumstance must be presented to the jury, with the determination of the weight to be accorded it left for the jury after proper instruction from the court.

Turning to the specific factors requested by defendant prior to the resentencing proceeding, all but one meet the relevance requirements of c(5)(h). The request relating to sentences imposed on defendant after other murder convictions raises the specter that a jury in this case may be unduly influenced by the determination of another jury made on a substantially different record. Because the sentencing determination is fact specific and remains subject to significant sentencer discretion, the sentence imposed in another case under different circumstances has little probative value to the present jury’s sentencing decision. A properly-impanelled jury in a capital case is aware of the limited options available in sentencing a defendant convicted of murder. Furthermore, the argument that defendant will never be eligible for parole in his lifetime can be made based on the current proceeding. Evidence of sentences imposed on defendant for his other murder convictions should not be admitted.

2. Failure to define murder

Defendant contends that the trial court’s failure to define murder for the jury at any time constituted plain error and violated his constitutional right to due process of law and to a reliable sentencing determination. Defendant argues that because “the jury here sentenced defendant for the crime of murder, and based its decision on two prior murder convictions, without knowing the legal definition of murder,” its determination is suspect. Beyond the impact that absence of a definition of murder may have had on the voir dire, see supra at 41-42, 594 A.2d at 193-194, the failure to define murder, if error, was harmless. The determination to be made here was the appropriate sentence, not whether Biegenwald was guilty of murder. The jury was aware of the circumstances of the underlying killing and knew that those circumstances had caused another jury to find defendant guilty of murder. Because the jury was neither required nor permitted to reconsider whether defendant was guilty but rather was charged only with determining the appropriate sentence, a definition of murder should not have changed its deliberative process.

Although educating potential jurors on what constitutes murder was necessary for the court and counsel to conduct an effective voir dire (because the common “it depends on the circumstances” answer to the question about a venireperson’s views on the appropriateness of the death penalty is unintelligible in the absence of a clear understanding by that venireperson of the limited circumstances under which the death penalty may be imposed), see supra at 41-42, 594 A.2d at 193-194, a definition of murder is not essential to the sentencing deliberation. We agree with the conclusion of the Trial Judges Committee on Capital Causes that the prior-murder-conviction aggravating factor, N.J.S.A. 2C:11-3c(4)(a), “does not appear to require further definition.” Judges Bench Manual for Capital Cases, supra, Appendix J, at J(2)-13; cf. State v. Clausell, 121 N.J. 298, 344, 580 A.2d 221 (1990) (court on remand should define aspects of aggravating factors that are not substantially self-explanatory). The jury is not permitted to second-guess the judgment of a prior jury that has convicted a defendant of murder; it need know only that defendant has committed another murder. The murder statute specifies the evidence admissible to prove that factor:

Evidence offered by the State with regard to the establishment of a prior homicide conviction [in fact, only a prior murder conviction is admissible as an aggravating factor under c(4)(a) ] pursuant to paragraph (4)(a) of * * * subsection [c] may include the identity and age of the victim, the manner of death and the relationship, if any, of the victim to the defendant. [N.J.S.A. 2C:11-3c(2)(f).]

A detailed understanding of the murder statute is not necessary either to a jury’s determination of the existence of the c(4)(a) factor or to its weighing of that factor in the ultimate decision on the appropriate sentence. The understanding of “murder” as used in our statute will be adequately conveyed by the trial court during voir dire, the underlying trial, or both. Because we reverse on other grounds, we need not decide whether this jury’s understanding of “murder” was adequate for it to deliberate effectively.

3. Removal of Intoxication from Mitigating Factor c(5)(d) Instructions

Defendant’s Notice of Mitigating Factors included notice that should a capital-sentencing proceeding be necessary, he would seek to prove 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. [N.J.S.A. 2C:11-3c(5)(d).]

During the sentencing proceeding defense counsel elicited testimony on cross-examination of Smith tending to establish that defendant had been smoking marijuana on the night of the murder:

Q You recall having a conversation, don’t you, at some time when Mr. Biegenwald told you he was in the car that night and smoking pot with the girl?

A Yes.

To emphasize that testimony, defense counsel returned to the subject as the final question:

Q You do recall him saying he had smoked pot in the particular car where you found the blood stains with the girl?

A Yes.

In his summation, defense counsel reminded the jury that Smith had testified to defendant’s smoking marijuana on the night of the murder. The summation, however, made no explicit attempt to develop that fact as a mitigating factor. Rather, defense counsel’s reference to defendant’s drug use appeared to focus on a motive for the killing — namely, to prevent the victim from reporting defendant’s drug use (a violation„of his parole) to the police — and thereby to refute aggravating factor c(4)(c).

In the general, introductory jury charge, the court had listed all eight possible mitigating factors. At that point, in reading c(5)(d) to the jury, the court mentioned that that factor included intoxication as possibly impairing defendant’s mental capacity. However, when the court narrowed its discussion to the mitigating factors actually advanced by defendant in the resentencing proceeding, it deliberately omitted reference to intoxication, both when reading e(5)(d) again to the jury and when explaining that factor.

Defendant took timely exception to the court’s omission of intoxication in its explanation of c(5)(d). The court refused to amend the instruction:

MR. DIAMOND: Your Honor, please the Court, with the addition that the legislature put in as to intoxication at the time of the offense was committed, could you instruct the jury intoxication also includes the use of drugs such as marihuana?

THE COURT: No, I won’t.

MR. DIAMOND: That’s what the legislature intended.

THE COURT: I won’t instruct them.

MR. DIAMOND: There is testimony at the time the offense was committed.

THE COURT: Your position is clear, I’m not going to instruct them on intoxication.

No further explanation for the court’s decision is evidenced in the record. The verdict sheet also omitted “intoxication” from the c(5)(d) factor.

Defendant claims that the trial court’s refusal to include reference to intoxication in its instruction on mitigating factor c(5)(d) precluded the jury from considering and giving effect to mitigating evidence and therefore requires vacating of the death sentence. The State contends that the trial court did not err because there was no evidence of intoxication. The State further contends that the jury was not precluded from considering defendant’s marijuana usage on the night of the murder under mitigating factor c(5)(h), the catch-all factor.

Defendant correctly points out that the eighth amendment “requires that juries be given instructions which allow them to ‘consider and give effect to [the] mitigating evidence,’ ” quoting Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256, 275 (1989). This Court has indicated previously that juries must be allowed to consider all mitigating circumstances advanced by defendant at trial. Bey II, supra, 112 N.J. at 169, 548 A.2d 887. Defendant emphasizes that he is not suggesting that the evidence of intoxication would have constituted a defense to prosecution, but rather that the evidence supported a charge on intoxication as a mitigating factor under c(5)(d).

That the trial court omitted intoxication from its charge on c(5)(d) and left intoxication out of the recitation of that factor on the verdict sheet is troubling, particularly because the trial court read the language of the provision — including the reference to intoxication — to the jury in its initial overview of the statute but thereafter gave no explanation for its failure to have included intoxication in its specific charge and on the verdict sheet. The statute plainly includes intoxication in its c(5)(d) language. That intoxication can derive from drug or alcohol usage is recognized generally. E.g., State v. Zola, 112 N.J. 384, 424, 548 A.2d 1022 (1988); N.J.S.A. 2C:2-8e(1) (defining intoxication as “a disturbance of mental or physical capacities resulting from the introduction of substances into the body”).

In Zola, we held that the trial court had not erred in denying a request that the jury be instructed on the defense of intoxication. 112 N.J. at 425, 548 A.2d 1022. We reasoned that “intoxication may be attributed to drugs * * * but must cause ‘prostration of faculties’ to be considered relevant to negating an element of the offense.” Id. at 424, 548 A.2d 1022 (citation omitted) (quoting State v. Cameron, 104 N.J. 42, 54, 514 A.2d 1302 (1986)). Because the trial court had “found no reliable evidence of ingestion of drugs or alcohol, much less any incapacitation of judgment due to use [of] such substances,” ibid., we concurred with the decision not to charge intoxication as a defense to capital murder.

Whether the refusal of the court below to instruct the jury on intoxication constituted significant error we need not decide, because we vacate defendant’s sentence on other grounds. However, we do note that the standards for admissibility and consideration of intoxication during a capital-sentencing proceeding are not the same as the comparable standards applicable during the determination of guilt. See N.J.S.A. 2C:11-3c(2)(a) (“defendant shall have the burden of producing evidence of the existence of any mitigating factors * * * but shall not have a burden with regard to the establishment of a mitigating factor”); -3c(2)(b) (“defendant may offer, without regard to the rules governing the admission of evidence at criminal trials, reliable evidence relevant to any of the mitigating factors”); -3c(5)(d) (defendant’s capacity impaired as the result of “intoxication, but not to a degree sufficient to constitute a defense to prosecution”); cf. Smith v. State, 492 So.2d 1063, 1067 (Fla.1986) (“some evidence, however slight, that Smith had smoked marijuana the night of the murder” held “sufficient to justify giving instructions for reduced capacity and extreme emotional disturbance” in capital-sentencing proceeding); State v. Goodman, 298 N.C. 1, 32, 257 S.E.2d 569, 589 (1979) (“[w]hen the defendant contends that his faculties were impaired by intoxication, such intoxication must be to a degree that it affects defendant’s ability to understand and control his actions”); State v. Bellamy, 293 S.C. 103, 105, 359 S.E.2d 63, 65 (1987) (“if there is evidence that the defendant could be under the influence of alcohol or drugs,” court should charge on mitigating circumstances relating to reduced capacity).

4. Use of the Videotape of Dr. Eshkenazi

Defendant contends that he was denied due process of law when he was forced to use at the resentencing proceeding a five-year-old videotape of testimony of a psychiatric expert witness made during the original sentencing proceeding. According to defendant, the denial of public funds for a psychiatric expert witness before the trial in 1983 denied him the essentials of a minimally-adequate defense at the resentencing proceeding in 1989. The mere statement of that contention manifests its dubious credibility.

The court’s refusal to provide public funds for an expert witness at the time of Biegenwald’s trial was not clearly erroneous. There was no showing that defendant was indigent, a prerequisite to any entitlement to public funds for legal services. Moreover, the denial of public funds is irrelevant on the issue of due process because defendant had the benefit of psychiatric testimony from an expert witness. We are unmoved by defendant’s contention that the denial of public funds before his trial in 1983 “forced defense counsel into a position where he either had to rely on a videotape or pay for an expert out of his own pocket” during the new sentencing proceeding in 1989.

5. Ineffective Assistance of Counsel

Biegenwald argues that counsel’s decision to use the five-year-old videotape constitutes ineffective assistance of counsel because by its use counsel (1) waived the only defense to aggravating factor c(4)(c) (“depravity of mind”); (2) waived the opportunity to present testimony without regard to the rules of evidence as permitted by a 1985 amendment to N.J.S.A. 2C:11-3c(2)(b), see L.1985, c. 178; and (3) introduced an improper reference by the prosecutor to defendant’s exercise of fifth- and sixth-amendment rights. Those contentions have some theoretical appeal. We note, however, that in the prosecution for the murder of William Ward, the only evidence introduced by defense counsel during that capital-sentencing proceeding was the same videotaped testimony of Dr. Eshkenazi at issue here, and there the jury spared defendant’s life.

The standard for considering an ineffective-assistance-of-counsel claim is that “if counsel’s performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant’s conviction, the constitution will have been violated.” State v. Fritz, supra, 105 N.J. at 58, 519 A.2d 336; see State v. Davis, supra, 116 N.J. at 356, 561 A.2d 1082 (holding same standard applies in capital cases). That standard was adopted substantially unchanged from the standard announced by the Supreme Court in Strickland v. Washington, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

Counsel’s conduct does not clearly rise to that level. In matters of trial strategy, we accord great deference to the decisions of counsel:

With hindsight, it is not difficult to suggest different trial strategies that counsel might have pursued, but the law is settled that “[i]n assessing the adequacy of counsel’s performance, ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’” Burger v. Kemp, 483 U.S. 776, 819 [107 S.Ct. 3114, 3139], 97 L.Ed.2d 638, 673 (1987) (Powell, J., dissenting) (quoting Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). [State v. Marshall, supra, 123 N.J. at 165, 586 A.2d 85.]

Defendant does not contend that the decision to use the videotape was not a product of a thorough investigation of the circumstances and consideration of options in preparation for the resentencing proceeding, notwithstanding the conclusory statement that counsel was “forced” by financial considerations to use the tape. The record, moreover, does not indicate the extent of counsel’s investigation and planning, if any, in preparation for that proceeding. Under the circumstances, defendant’s ineffective-assistance-of-counsel claim based on the decision to use the videotape must be denied because defendant has not identified the deficiencies that materially contributed to his sentence. See State v. Fritz, supra, 105 N.J. at 58, 519 A.2d 336.

6. Aggravating Factor c(4)(c) (“depravity of mind”)

Defendant contends that application of that portion of c(4)(c) relating to depravity of mind, as construed by this Court in State v. Ramseur, supra, 106 N.J. at 197-211, 524 A.2d 188, violates the due-process clause of the fourteenth amendment of the United States Constitution. Cf. Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894, 900 (1964) (“If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.”). Defendant argues that based on the decision in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (Georgia provision on which c(4)(c) is modeled held unconstitutionally vague in absence of limiting construction), “Biegenwald could have reasonably believed that this factor did not apply to his case because the victim’s death was instantaneous; there was no serious physical abuse prior to death as required by the Georgia limiting construction.” According to defendant, application of c(4)(c) as construed in Ramseur, supra, 106 N.J. at 208-11, 524 A.2d 188, violates the principle underlying the ex post facto clause that “persons have a right to fair warning of that conduct which will give rise to criminal penalties.” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260, 265 (1977).

Were the “depravity of mind” portion of c(4)(c) the only aggravating factor on which the State relied in seeking imposition of the death penalty at the resentencing proceeding, defendant’s claim might present a more difficult question. However, any requirement of notice to this defendant that his conduct could produce a capital verdict was clearly fulfilled by other provisions of the murder statute, specifically the other-murder-conviction aggravating factor. See N.J.S.A. 2C:11-3c(4)(a). Consequently, even though we acknowledge that the construction of c(4)(c) adopted by this Court in Ramseur, supra, 106 N.J. at 208-11, 524 A.2d 188, is a “broader interpretation,” id. at 205, 524 A.2d 188, than that approved in Godfrey, its application to defendant did not violate the due-process clause because it neither punishes as a crime an act lawful when committed, “makes more burdensome punishment for a crime after its commission, [nor] deprives one charged with crime of any defense available according to law at the time when the act was committed.” Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 69, 70 L.Ed. 216, 217 (1925); see also Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344, 356 (1977) (quoting Beazell).

Ill

CONCLUSION

Defendant’s death sentence is vacated, and the case is remanded to the Law Division for a resentencing proceeding consistent with this opinion.