State v. Koedatich

572 A.2d 622, 118 N.J. 513, 1990 N.J. LEXIS 40

• Court: Supreme Court of New Jersey
• Decided: April 19, 1990
• Status: Published

Opinions

The opinion of the Court was delivered by

STEIN, J.

In State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988), cert. denied, — U.S.-, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989), we affirmed defendant’s conviction for the murder of Amie Hoffman but vacated his death sentence and remanded for a new penalty-phase hearing. The issue on this appeal is whether the State can offer evidence at the resentencing hearing of aggravating factors that were charged but that the jury in the first proceeding did not unanimously find to exist. The trial court concluded the State was barred from resubmitting those aggravating factors. We granted the State’s motion for leave to appeal that ruling and now reverse.

I.

On November 23, 1982, eighteen-year-old Amie Hoffman was abducted from the Morris County Mall where she worked part-time. Two days later, police discovered her body in a water-retention tank located in a secluded area of Randolph Township. Medical evidence revealed that she had been sexually assaulted and then stabbed to death. The resulting police investigation culminated in the arrest of James Jerold Koeda-tich. In October 1984, a Morris County jury convicted Koeda-tich of several offenses including murder and sentenced him to death.¹

At the penalty phase of the trial, the State charged four aggravating factors: (1) that defendant had previously been convicted of murder, N.J.S.A. 2C:ll-3c(4)(a) (defendant had been convicted of second-degree murder in Florida in 1971); (2) that the murder was committed while defendant was engaged in the commission of or flight from the commission of a sexual assault and kidnapping, N.J.S.A. 2C:ll-3c(4)(g); (3) that the murder was committed for the purpose of escaping detection, N.J.S.A. 2C:ll-3c(4)(f); and (4) that the murder was outrageously and wantonly vile, N.J.S.A. 2C:ll-3c(4)(c).

The jury unanimously found that defendant had a prior murder conviction and that he killed Amie Hoffman in the course of a sexual assault and kidnapping. The jury was unable to agree unanimously with respect to the other two aggravating factors. The Penalty Phase Special Verdict Form revealed that eleven of the twelve jurors determined that the murder was “outrageously and wantonly vile,” and eight determined that the murder was committed “to escape detection.”

Defendant subsequently appealed both the conviction and the death sentence. Although this Court affirmed the underlying conviction, we vacated defendant’s death sentence, finding reversible error in the penalty phase. 112 N.J. at 340, 548 A.2d 939. Specifically, we held that the trial court had erroneously charged the jury that the mitigating factors must outweigh the aggravating factors in order for the court to impose a sentence other than death. Id. at 325, 548 A.2d 939. Further, we held that the trial court had erred by requiring that the jury unanimously find the existence of mitigating factors. Id. at 326-27, 548 A.2d 939. Accordingly, we remanded the matter for a new penalty-phase hearing.

In September 1988, the State filed a Notice of Intention to Seek the Death Penalty at Eesentencing, in which it relied on the same four aggravating factors charged in the initial sentencing proceeding. Defendant argued at resentencing that this Court’s decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987) (Biegenwald II), and State v. Biegenwald, 110 N.J. 521, 542 A.2d 442 (1988) (Biegenwald III), preclude the State from resubmitting both the “outrageously wanton and vile” and the murder “to escape detection” factors.² The trial court agreed, holding that those death-penalty decisions barred the State from charging any aggravating factors at resentenc-ing that the jury in the first penalty phase did not unanimously find to exist.

II.

We note that the Capital Punishment Act, N.J.S.A. 2C:ll-3 (the Act), offers no specific guidance on the question whether aggravating factors not unanimously found to exist by the jury at the initial sentencing proceeding can be presented at resen-tencing following a remand. Nor have our prior decisions concerning the presentation of aggravating factors at resen-tencing dealt specifically with the issue raised by this appeal.

In Biegenwald II, supra, 106 N.J. 13, 524 A.2d 130, we affirmed defendant’s conviction for the murder of Anne Olesiewicz, but reversed his death sentence because the trial court had improperly instructed the jury in the penalty phase. Accordingly, we remanded the ease for a new sentencing proceeding, observing that “[rjesentencing cannot be considered double-jeopardy where the first sentence was a death sentence and the evidence was sufficient.” Id. at 68, 524 A.2d 130.

At the initial penalty-phase proceeding in Biegenwald II, the jury unanimously found the existence of two aggravating factors: (1) that defendant had previously been convicted of murder, N.J.S.A. 2C:ll-3c(4)(a); and (2) that “the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” N.J.S.A. 2C:ll-3c(4)(c) (“c(4)(c)”). We held that principles of double jeopardy barred the State from proving the existence of the “aggravated battery” or “torture” components of the c(4)(c) aggravating circumstance at resentencing because there was insufficient evidence in the record to support those components. 106 N.J. at 51, 524 A.2d 130. We noted, however, that the State would not be barred from offering evidence of “depravity of mind” to establish aggravating factor c(4)(c). Id. at 52, 524 A 2d 130.

In Biegenwald III, supra, 110 N.J. 521, 542 A.2d 442, the issue was whether the State could introduce as an aggravating factor at the resentencing hearing defendant’s conviction for the murder of William Ward, which was obtained after the Olesiewicz conviction. We held that admission of the Ward conviction at resentencing complied with the double-jeopardy clauses of both the federal and state constitutions and with principles of fundamental fairness. Id. at 540-41, 542 A.2d 442. As dictum in that opinion, we offered this guideline:

If the sentencing jury in the first trial specifically rejects an aggravating factor or an appellate court finds that the State failed to establish by sufficient evidence the existence of an aggravating factor at the original trial, the aggravating factorf,] or that part of the aggravating factor rejected by the jury, cannot be used at the resentencing proceeding. [Id. at 542, 542 A.2d 442.]

Neither Biegenwald II nor Biegenwald III, however, is dis-positive of the issue before us. Therefore, we begin our analysis by considering the question in the context of double-jeopardy jurisprudence. Because we have held the double-jeopardy clauses of the state and federal constitutions to be substantially coextensive, State v. DeLuca, 108 N.J. 98, 102, 527 A.2d 1355 (1987); State v. Dively, 92 N.J. 573, 578, 458 A.2d 502 (1983); State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980), we proceed with an overview of federal double-jeopardy law pertaining to sentencing issues.

The Supreme Court has recognized that the double-jeopardy clause of the fifth amendment embodies three distinct protections for criminal defendants:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. [North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1965) (footnotes omitted).]

Constitutional protections against double jeopardy clearly preclude the retrial of a defendant who has been acquitted of the offenses with which he was charged. As the Court observed in Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957):

[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Nevertheless, it is consistent with the guarantee against double jeopardy to retry a defendant who has succeeded in obtaining reversal of his conviction based on trial errors:

It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. [United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, 451 (1964).]

Where a defendant’s conviction has been overturned due to insufficient evidence, however, principles of double jeopardy prohibit retrial. Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L.Ed.2d 1 (1978).

Defendants have sought to extend the significance accorded acquittal of a criminal offense to the imposition of a particular sentence. In North Carolina v. Pearce, supra, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, the Court considered whether the imposition of a greater sentence, after conviction on retrial, was barred on double-jeopardy grounds. Reasoning that the “power to impose whatever sentence may be legally authorized” was a “corollary of the power” to- retry a defendant whose conviction was set aside on appeal, the Court held that the prohibition against double jeopardy did not preclude the imposition of a harsher sentence on reconviction. Id. at 720, 89 S. Ct. at 2078, 23 L.Ed.2d at 666. The Court explained that the rationale for its holding “rests ultimately upon the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” Id. at 721, 89 S.Ct. at 2078, 23 L.Ed.2d at 667.

The Court’s unwillingness to equate acquittals with the imposition of a particular sentence was reaffirmed in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). Rejecting arguments that for double-jeopardy purposes “the imposition of the sentence is an ‘implied acquittal’ of any greater sentence,” id. at 133, 101 S.Ct. at 435, 66 L.Ed.2d at 343, the Court upheld a provision of the Organized Crime Control Act that granted the government the right to appeal the sentences of “dangerous special offenders,” as defined by that Act. Id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 345. Thus, because of fundamental distinctions between the two, the Court has made clear that “the pronouncement of sentence has never carried the finality that attaches to an acquittal.” Id. at 133, 101 S.Ct. at 435, 66 L.Ed.2d at 343.

Due to the unique features of penalty-phase proceedings in capital cases, the Court has modified its view on the distinction between trials and sentences, resulting in an exception to the “clean slate rationale” generally applicable to sentencing at retrial. In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the Court considered whether a defendant who was convicted of murder and sentenced to life imprisonment in a bifurcated-capital proceeding could, after successfully appealing his conviction, be subjected to the death penalty on retrial. The Court observed that by enacting a capital-sentencing procedure that resembles a trial on the issue of guilt, Missouri explicitly requires the jury to determine whether the prosecution has “proved its case” for the death penalty:

The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes. [Id. at 438, 101 S.Ct. at 1858, 68 L.Ed.2d at 278-79 (footnote omitted).]

By sentencing defendant to life imprisonment at the first trial, the jury effectively “ ‘acquitted’ defendant of whatever was necessary to impose the death sentence.” Id. at 445, 101 S.Ct. at 1861, 68 L.Ed.2d at 283 (citation omitted); see also Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164, 171 (1984) (holding that double-jeopardy clause prohibited State from seeking death penalty at resentencing, where judge sentenced defendant to life imprisonment in the original penalty-phase proceeding).

In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the Court defined the contours of the “acquittal” analogy employed in Bullington and Rumsey as it applied to the resubmission at resentencing of an aggravating factor rejected at the original trial. In Poland, two brothers robbed a cash-delivery van and killed the two guards attending the van; the bodies were placed in weighted sacks and dumped into a lake. A jury convicted both defendants of capital murder. At the penalty-phase hearing, the State charged two statutory aggravating factors: (1) that defendants had “committed the offense as consideration for the receipt, or in expectation of the receipt, of [something] of pecuniary value”; and (2) that defendants had “committed the offense in an especially heinous, cruel, or depraved manner.” The trial judge, sitting as sentencer, failed to find the existence of the “pecuniary gain” aggravating circumstance, believing it applied only to contract killings, but did find the existence of the “especially heinous, cruel, or depraved” factor. After performing the appropriate balancing procedure, the court sentenced defendants to death. On appeal, the Arizona Supreme Court reversed the convictions due to error in the guilt phase of the proceeding and remanded for a new trial. With respect to the penalty phase, the court held that there was insufficient evidence to support the trial court’s finding of the “especially heinous, cruel, or depraved” aggravating factor. The court also held that the “pecuniary gain" aggravating circumstance was not limited to situations involving contract killings and expressly ruled that that factor could be considered at resentencing.

Defendants were subsequently reconvicted of capital murder and sentenced to death. The trial judge found that the “pecuniary gain” and “especially heinous, cruel or depraved” aggravating factors were present in each defendant’s case. On appeal, the Arizona Supreme Court again found insufficient evidence to support the existence of the “especially heinous, cruel, or depraved” aggravating factor. Concluding that there was sufficient evidence to support the “pecuniary gain” factor, however, the court upheld the respective death sentences.

The United States Supreme Court affirmed, observing that

[a]t no point during petitioners’ first capital sentencing hearing and appeal did either the sentencer or the reviewing court hold that the prosecution had "failed to prove its case” that petitioners deserved the death penalty. Plainly, the sentencing judge did not acquit, for he imposed the death penalty. While the Arizona Supreme Court held that the sentencing judge erred in relying on the “especially heinous, cruel, or depraved” aggravating circumstance, it did not hold that the prosecution had failed to prove its case for the death penalty. [Id. at 154, 106 S.Ct. at 1754, 90 L.Ed.2d at 131-32.]

In so holding, the Court rejected defendants’ argument that the sentencing judge “acquitted” them of the “pecuniary gain” circumstance by not finding its existence in the initial sentencing proceeding, concluding that principles of double jeopardy did not bar consideration at resentencing of evidence relating to that circumstance:

We reject the fundamental premise of petitioners’ argument, namely, that a capital sentencer’s failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an “acquittal” of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has "decided that the prosecution has not proved its case” that the death penalty is appropriate. We are not prepared to extend Bullington further and view the capital sentencing hearing as a set of mini-trials on tlie existence of each aggravating circumstance. Such an approach would push the analogy on which Bullington is based past the breaking point.

We hold, therefore, that the trial judge’s rejection of the “pecuniary gain” aggravating circumstance in this case was not an “acquittal” of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Furthermore, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty “acquittal” by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the “clean slate” rule applied. [Id. at 155-57, 106 S.Ct. at 1755-56, 90 L.Ed.2d at 132-33 (footnote omitted) (emphasis added).]

Although three Justices dissented in Poland, no member of the Court adopted the defendant’s argument that principles of double jeopardy preclude the State from charging at resentenc-ing aggravating factors not found to exist at the initial penalty-phase proceeding.³ Therefore, under federal double-jeopardy doctrine, where a defendant who has been sentenced to death succeeds in having the sentence overturned on appeal, the “clean slate” rule of Pearce applies to the new sentencing proceeding. The State is permitted to resubmit aggravating factors at the new proceeding even if those factors were not found at the initial-sentencing proceeding, provided there is sufficient evidence in the record to sustain the original death sentence. Poland v. Arizona, supra, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123. Where a defendant was originally sentenced to life imprisonment, however, the State may not, consistent with principles of double jeopardy, seek the death penalty on remand because the State failed “to prove its case” for that sentence in the first proceeding. Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270.

III.

We have on several occasions demonstrated a willingness to read our state constitutional provisions more expansively than the federal counterpart where necessary to provide our citizens with enhanced protections. See State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987); State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983); Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982). Because no distinct tradition of state-constitutional doctrine requires departure from federal decisions on this issue, we decline to view “the capital sentencing hearing as a set of mini-trials on the existence of each aggravating circumstance.” Poland v. Arizona, supra, 476 U.S. 147, 155, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123, 132. We conclude, therefore, that a jury’s failure to determine unanimously the existence of a statutory aggravating factor does not constitute an “acquittal” of that factor, barring its presentation at resentencing on double-jeopardy grounds.

The Capital Punishment Act, N.J.S.A. 2C:ll-3, which governs the administration of the death penalty in this state, “calls for a bifurcated trial in which punishment is determined in a separate proceeding following the establishment of guilt.” State v. Ramseur, 106 N.J. 123, 156, 524 A.2d 188 (1987). The capital-sentencing scheme delegates to jurors the sensitive task of determining whether a defendant convicted of capital murder will live or die. Indeed, the fact-finder’s determination in the penalty phase of a capital proceeding focuses on whether death is the appropriate punishment for the defendant. As we explained in State v. Bey, 112 N.J. 123, 158, 548 A.2d 887 (1988) (Bey II),

[t]he vehicle through which the jury discharges its responsibility is the determination of the existence of aggravating and mitigating factors and the balancing of the former against the latter. In the sentencing phase, the jury is obliged to determine, first, the existence of any aggravating factor or factors. The jury must find that at least one aggravating factor exists before the death penalty may be imposed. If the jury “finds that no aggravating factors exist * * * the court shall sentence the defendant pursuant to subsection b,” which requires a term of imprisonment. If, however, the jury finds an aggravating factor exists, then it must determine whether any mitigating factors also exist. After making fact findings about the “existence or non-existence” of aggravating and mitigating factors, the jury must then make the normative judgment whether the aggravating outweigh the mitigating factors beyond a reasonable doubt. That decision, in effect, determines the appropriateness of the death penalty for the defendant.

In recognition of the fact that a finding with respect to the existence or non-existence of an aggravating factor will tip the delicate balance between life and death, the Act requires that the State prove the existence of aggravating factors beyond a reasonable doubt. N.J.S.A. 2C:ll-3c(2)(a). Although the Act does not expressly mandate it, we have interpreted the Act to require that in order for an aggravating factor to be considered in the balancing process, the jurors must agree unanimously with respect to its existence. See, e.g., Bey II, supra, 112 N.J. at 159, 548 A.2d 887. Thus, the role of statutory aggravating factors in our capital-sentencing scheme is of critical importance to the jury’s ultimate determination concerning the appropriate punishment to be imposed. We observed in State v. Ramseur, supra, 106 N.J. at 185-86, 524 A.2d 188, that the jury’s consideration of statutory aggravating factors serves to narrow the class of death-eligible murderers as well as to guide the jury’s discretion in determining the appropriateness of a death sentence.

Under our capital-sentencing scheme, a unanimous finding of the existence of any one of the statutory aggravating factors charged by the State could result in a death sentence, provided that the jury determines that that aggravating factor outweighs the mitigating factors beyond a reasonable doubt. Unlike the situation in guilt-phase deliberations, a jury charged with deciding the existence of several aggravating factors might not necessarily exhaust its deliberative capacity in an effort to achieve unanimity on all such factors if it should determine that one aggravating factor, on which it does unanimously agree, outweighs the mitigating factors beyond a reasonable doubt. Thus, although we acknowledge the critical role of aggravating factors in deciding whether the death penalty is an appropriate punishment, we are unwilling to imbue a jury’s non-unanimous decision with respect to an aggravating factor with the same reliability as attends a verdict of acquittal on a criminal charge. Instead, in the penalty-phase proceeding, a jury vote that is less than unanimous on an aggravating factor is a finding that that factor does not exist for purposes of its use in that proceeding.

Our dissenting colleagues disagree, emphasizing that “a non-unanimous verdict in a capital case is a verdict in every sense of the word,” post at 545, 572 A.2d at 639 (O’Hern, J., dissenting); “The Court itself has recognized that a non-unanimous verdict constitutes a jury verdict.” Post at 538, 572 A.2d at 635 (Handler, J., dissenting.) In addition, Justice Handler reasons that because at least one aggravating factor must be found to exist to expose a defendant convicted of murder to capital punishment, the aggravating factors submitted to a jury are elements of the crime of capital murder. Id. at 533, 572 A.2d at 632. Applying traditional double-jeopardy principles, he asserts that “a retrial seeking the death penalty based on identical aggravating factors [not unanimously found at the first proceeding] is tantamount to a retrial for the same crime.” Post at 534, 572 A.2d at 633. The issue cannot, however, be simplified and resolved so categorically. Because the jury must find one aggravating factor before the death penalty can be imposed, it is appropriate to consider aggravating factors as analogous to elements of other crimes. But in a capital-sentencing proceeding in which multiple aggravating factors are submitted to the jury, a finding that all such factors exist is not a prerequisite to a death sentence. In that context, the analogy to “elements of a crime” breaks down; the jury’s non-unanimous finding on “extra” aggravating factors cannot be analogized, for double-jeopardy purposes, to a determination that the State has failed to prove an essential element of a crime.

Similarly, although the Act authorizes a non-unanimous verdict in the sentencing proceeding, the statutory authorization refers to the jury’s determination “whether the defendant should be sentenced to death * * *.” See N.J.S.A. 2C:ll-3c(l). On that question, both the statute and our cases clearly recognize that a non-unanimous verdict is permissible under the Act. See State v. Ramseur, supra, 106 N.J. at 312, 524 A.2d 188. Nevertheless, we have held that when a trial court in a capital-sentencing proceeding is first advised that a jury could not reach a unanimous verdict, the court should inquire whether the jury’s report “indicated its final verdict or whether the jury wanted more time to deliberate.” State v. Hunt, 115 N.J. 330, 380, 558 A.2d 1259 (1989); State v. Ramseur, supra, 106 N.J. at 302, 524 A.2d 188. That procedure, intended to assure that a jury had exhausted its deliberative capacity on the issue of life or death, would be completely unnecessary and inappropriate under circumstances where, as in the initial sentencing proceeding in this case, the jury was unanimous on the death sentence but non-unanimous only on two of four aggravating factors. Thus, although the Act authorizes non-unanimous verdicts in the sentencing phase, that authorization is far from decisive on the question whether a non-unanimous vote on two of four aggravating factors, under principles of double jeopardy, bars resubmission of those factors in a second sentencing proceeding.

We note that an overwhelming majority of jurisdictions that have considered the issue have also rejected double-jeopardy challenges to the introduction, at resentencing, of aggravating factors not unanimously found to exist in the initial sentencing proceeding. See Rose v. State, 461 So.2d 84 (Fla.1984) (trial court’s reliance on aggravating factor at resentencing that was not found at initial proceeding did not violate double jeopardy), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985); Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982) (where defendant’s death sentence was overturned on appeal, State could resubmit at resentencing aggravating factors charged but not found to exist at original trial), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); State v. David, 468 L.Ed.2d 1133 (La.1985) (jury finding that single aggravating factor exists does not amount to an acquittal of other aggravating factors presented to jury), cert. denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678, reh’g denied, 478 U.S. 1014, 106 S.Ct. 3321, 92 L.Ed.2d 728 (1986); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981) (no double-jeopardy violation in submitting aggravating factor to jury not found at initial trial), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982); Hopkinson v. State, 664 P.2d 43, 70 (Wyo.) (holding that aggravating factors not found to exist at first trial could be submitted at resentencing without violating principles of double jeopardy because “there is no such thing as an acquittal from an aggravating circumstance in the penalty phase.”), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Contra State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981) (holding that considerations of double jeopardy preclude State from relying at resentencing on aggravating factors not found at original proceeding).

IV.

Having concluded that principles of double jeopardy present no bar, we next consider whether the State’s reliance at resentencing on aggravating factors charged but not unanimously found in the initial proceeding offends notions of fundamental fairness. We frequently invoke the doctrine of fundamental fairness in criminal matters “when the scope of a particular constitutional protection has not been extended to protect a defendant.” State v. Yoskowitz, 116 N.J. 679, 705, 563 A.2d 1 (1989). Accordingly, precepts of fundamental fairness have been used to prohibit various types of governmental action even though a defendant’s constitutional rights were not directly implicated. See, e.g., State v. Tropea, 78 N.J. 309, 394 (1978) (fundamental fairness precludes any retrial where on appeal for failure to produce an essential element of proof court vacated defendant’s earlier conviction on same charge); Rodriguez v. Rosenblatt, 58 N.J. 281, 277 A.2d 216 (1971) (considerations of fairness dictate that municipal court appoint counsel where necessary to protect indigents against injustices that may result from their inability to cope fairly with the charges against them); State v. Calvacca, 199 N.J.Super. 434, 440, 489 A.2d 1199 (App.Div.1985) (custodial sentence imposed for drunk-driving conviction “infringe[d] on [defendant’s] right to fundamental fairness in sentencing” where court relied on defendant’s drunkenness in imposing custodial sentence for conviction of death by auto).

State v. Currie, 41 N.J. 531, 197 A.2d 678 (1964), focuses on the “fundamental fairness” doctrine in the context of double jeopardy. In Currie, police officers stopped defendant’s car. As one of the officers approached, defendant drove away, striking the officer and the police car. Another officer was injured as he tried to avoid the speeding car. Defendant was ultimately apprehended, charged, and convicted in municipal court for reckless driving and leaving the scene of an accident. More than one year later, defendant was charged with and convicted by a jury of atrocious assault and battery. Both the Appellate Division and this Court rejected defendant’s claim that the second prosecution was barred on double-jeopardy grounds.

Justice Jacobs, writing for the Court, also considered whether the second prosecution was unfair, stating that “[i]n applying the prohibition against double jeopardy * * * [t]he primary considerations should be fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals.” Id. at 539, 197 A.2d 678. The Court concluded the second prosecution did not involve “elements of oppression or harassment” or violate the reasonable expectations of the defendant. Id. at 543, 197 A.2d 678. Rather, barring the second prosecution would have been grossly unfair to the State. Ibid. The Currie analysis suggests that the doctrine of fundamental fairness may fairly be considered “a penumbral right reasonably extrapolated from other specific constitutional guarantees * * *.” State v. Abbati, 99 N.J. 418, 430, 493 A.2d 513 (1985) (citations omitted).

We have also applied principles of fundamental fairness in death-penalty proceedings. In State v. Ramseur, supra, we held that precepts of fundamental fairness require that “juries in capital cases be informed of, and free to exercise, the statutory option to return a final, non-unanimous verdict * * 106 N.J. at 308-09, 311-12, 524 A.2d 188. In Biegenwald II, supra, we held that the dictates of fundamental fairness require that the jury, in order to impose a death sentence, must find that the statutory aggravating factors adduced by the State outweigh mitigating factors beyond a reasonable doubt. 106 N.J. at 62, 524 A.2d 130. We concluded that the adoption of the reasonable doubt standard in other contexts indicated the Legislature’s “probable intention to impose the same burden” on the capital sentencing balancing process. Id. at 60, 524 A.2d 130. Finally, in Biegenwald III, we held that consideration of a murder conviction at the second penalty-phase proceeding, which occurred before resentencing but after the original trial, was not fundamentally unfair, because there was “no element of unfairness or surprise to the defendant.” 110 N.J. at 540, 542 A.2d 442.

In the context of double jeopardy, determination of whether government action offends concepts of state fundamental fairness depends largely on the policy interests underlying that constitutional guarantee. State v. Currie, supra, 41 N.J. at 539, 197 A.2d 678. We conclude that resubmission of aggravating factors that the jury in the first sentencing proceeding did not unanimously find to exist does not implicate the policies underlying the double-jeopardy clause, which primarily seek to prevent the State from using its vast resources to harass and oppress defendants through multiple prosecutions or punishments for the same offense. Id. at 536, 197 A.2d 678.

Proper administration of our capital-sentencing scheme requires that the jury’s decision in the penalty phase be based on consideration of the “individual characteristics of the offender and his crime.” Biegenwald III, supra, 110 N.J. at 538, 542 A.2d 442. Accordingly, we have recognized that in capital sentencing, “the jury must have before it all the possible relevant information ‘regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant’s character, background, history, mental condition and physical condition.’ ” Id. at 539, 542 A.2d 442 (citing California v. Ramos, 463 U.S. 992, 1006, 103 S.Ct. 3446, 3455, 77 L.Ed.2d 1171, 1184 (1983) (citation omitted)). To that end, we have construed the death-penalty statute to impose on defendants only the burden of presenting evidence of mitigating factors in order for such factors to be considered by a jury in its penalty-phase deliberations. Bey II, supra, 112 N.J. at 159, 548 A.2d 887. Moreover, any juror is permitted, in the balancing process, to weigh a mitigating factor found to exist by that juror, even if no other juror agrees. Id. at 160, 548 A.2d 887. Nor has the State ever suggested that we should preclude a defendant from resubmitting, at a second sentencing proceeding, a mitigating factor rejected by all jurors at the first proceeding.

We note that the Capital Punishment Act as interpreted by this Court provides extensive safeguards against unfair and arbitrary imposition of the death penalty. As we observed in State v. Bey (Bey I), 112 N.J. 45, 92, 548 A.2d 846 (1988):

We acknowledge that the death sentence and capital proceedings differ in several respects from incarceration and noncapital prosecutions. We believe that in death penalty cases an appellate court must subject the record to intense scrutiny. The stark fact that a litigant’s life is at stake intensifies the obligation of judicial review. * * * [W]e have engaged in that very meticulous and searching review of the record in every capital case that has come before us. (Citations omitted.)

Nevertheless, we are satisfied that to allow the State to charge at resentencing aggravating factors that were supported by sufficient evidence but not unanimously found at the initial sentencing hearing poses no fundamental unfairness to defendants. We conclude that resubmission of such aggravating factors at a second penalty proceeding is consistent with the basic premise that all relevant evidence “regarding the individual characteristics of the defendant and his offense” be considered by the jury. Biegenwald III, supra, 110 N.J. at 539, 542 A.2d 442 (citations omitted). Exclusion of this relevant information regarding the nature and circumstances of a defendant’s crime would unnecessarily impede the jury’s crucial function in determining whether death is the appropriate punishment.

Judgment reversed.

1 In addition to the conviction for capital murder, N.J.S.A. 2C:ll-3(a)(l) and (2), Koedatich was convicted of felony murder, N.J.S.A. 2C:ll-3a(3); kidnapping, N.J.S.A. 2C:13-1; aggravated sexual assault, NJ.S.A. 2C:14-2a; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and possession of a weapon, N.J.S.A. 2C:39-5d.

2 Several months after being convicted of the Hoffman murder, defendant was convicted of the murder of Diedre O’Brien and sentenced to life imprisonment. In the O'Brien case, the jury did not unanimously find that defendant had previously been convicted of murder in Florida in 1971. Based on that finding, defendant also contended that the State was collaterally estopped from introducing the Florida conviction as an aggravating factor at resentencing. The trial court ruled that collateral estoppel was not a bar, a ruling not challenged on this appeal.

3 Justice Marshall filed a dissenting opinion in which Justices Brennan and Blackmun joined. The dissenters contended that the defendants in Poland could not be subjected to a second penalty proceeding because their death sentences in the first proceeding were based on an aggravating factor improperly relied on by the trial judge. Id. at 158-59, 106 S.Ct. at 1756-57, 90 L.Ed. at 134-35. Thus, the dissenters never addressed whether aggravating factors properly submitted to but rejected by the fact-finder at one penalty proceeding could be resubmitted at a second penalty hearing.