PAYNE, J.A.D.
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) the United States Supreme Court held that the execution of mentally retarded defendants convicted of capital murder constituted excessive punishment that violated the Eighth Amendment to the United States Constitution. However, it left to the states the task of developing the procedures to be utilized in determining who should thus be exempted. Although most states have established these procedures by statute or judicial decision, New Jersey has not. Therefore, the issue was novel in this State when it was raised by motion on behalf of defendant Porfirio Jimenez prior to his trial for capital murder. In these interlocutory appeals, which we hear back-to-back by leave granted, both the State and Jimenez challenge the procedures established in the trial court for determining the applicability of Atkins to a capital defendant prior to trial and after the guilt phase. We affirm the latter, but reverse the former.
Bills to govern the procedures for assessing mental retardation and to amend the New Jersey Constitution to bar the death penalty for the mentally retarded have been introduced in the New Jersey Legislature, but have never been released from committee. We do not find it necessary to comment on their content.
In State v. Harris, 181 N.J. 391, 520-533, 859 A.2d 364 (2004), the Court had considered a post-Atkins claim for post-conviction relief on the ground of alleged mental retardation. However, the procedural context there was markedly different. Moreover, because the Court found that defendant was not mentally retarded, it did not address in detail the procedures applicable in that distinguishable setting.
I.
A. The Atkins Decision
In Atkins, a six-member majority of the Supreme Court, abrogating the Court's prior decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) in light of evolving standards of decency as reflected in legislative enactments and other sources, found the execution of mentally retarded defendants convicted of capital murder to be excessive punishment, because that punishment was not proportional to the defendant's personal responsibility and moral guilt, and thus was violative of the Eighth Amendment's prohibition of cruel and unusual punishments. The Court observed: "mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial." 536 U.S. at 318, 122 S.Ct. at 2250, 153 L.Ed.2d at 348. However, it recognized that because of their impairments, by definition the mentally retarded
At the time of the decision in Atkins, the federal government and eighteen states permitting capital punishment (twelve do not) had enacted statutes that precluded the imposition of such punishment on the mentally retarded. The Texas Legislature had passed such a bill, but it was conditionally vetoed. Additionally one legislative house had passed such legislation in Virginia and Nevada. Atkins, supra, 536 U.S. at 314-15 and n. 9-17, 122 S.Ct. at 2248-49 and n. 9-17, 153 L.Ed.2d at 345-47 and n. 9-17. Since then, eight additional states have enacted similar legislation. The statutes are cited in n. 20.
have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.
[
Id. at 318,
122 S.Ct. at 2250-51,
153 L.Ed.2d at 348 (footnotes omitted).]
As the result of these intellectual deficiencies, the Court found two bases for the categorical exclusion of the mentally retarded from capital punishment. First, the Court found that a serious question existed as to whether either deterrence or retribution, the commonly recognized justifications for capital punishment, applied to the mentally retarded. Id. at 318-19, 122 S.Ct. at 2251, 153 L.Ed.2d at 349. Retribution, the Court found, was a concept that required proportionality between the severity of the punishment and the culpability of the offender — a culpability that was recognized to be lessened in the retarded. "If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution." Id. at 319, 122 S.Ct. at 2251, 153 L.Ed.2d at 349. The Court similarly found that deterrence did not present a compelling rationale for the imposition of the death penalty upon the mentally retarded because "the same cognitive and behavioral impairments that make these defendants less morally culpable — for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses — . . . also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information." Id. at 320, 122 S.Ct. at 2251, 153 L.Ed.2d at 349.
Poignant examples of the responses of mentally retarded defendants to execution appear in Jonathan L. Bing, Protecting the Mentally Retarded from Capital Punishment: State Efforts Since Penry and Recommendations for the Future, 22 N.Y.U. Rev. L. Soc. Change, 59, 60-62 (1996).
Additionally, the Supreme Court observed that "some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards." Id. at 317, 122 S.Ct. at 2250, 153 L.Ed.2d at 348. As a consequence, a risk exists that the death penalty will be imposed despite factors that may call for a lesser penalty. Id. at 320, 122 S.Ct. at 2251, 153 L.Ed.2d at 350 (quoting Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978)). Not only is there a possibility of false confessions, but also mentally retarded defendants may possess a lesser ability "to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes." Id. at 320-21, 122 S.Ct. at 2251-52, 153 L.Ed.2d at 350. Further, the Court found, reliance on mental retardation as a mitigating factor, a device frequently employed in capital sentencing, may be counterproductive, since jurors may construe the existence of the condition, instead, as enhancing the likelihood of future dangerousness, a commonly-employed aggravating factor. Id. at 321, 122 S.Ct. at 2252, 153 L.Ed.2d at 350. Mentally retarded defendants in the aggregate face a special risk of wrongful execution. Ibid.
The Court's decision in Atkins forms a part of a trilogy, consisting also of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (holding that the Eighth Amendment prohibits states from inflicting the death penalty upon a defendant who is insane) and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding that execution of a defendant who commits a capital crime while under the age of eighteen is prohibited by the Eighth Amendment). In both Ford and Atkins, the Court left "to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." Ford, supra, 477 U.S. at 416-17, 106 S.Ct. at 2605, 91 L.Ed.2d at 351; Atkins, supra, 536 U.S. at 317, 122 S.Ct. at 2250, 153 L.Ed.2d at 348.
Although the Court's procedural invitation is seemingly broad, we recognize it to be limited not only by the strictures of the United States Constitution, but also those of the Constitution of New Jersey. See id., art. I, ¶ 9.
We are also very mindful of the fact that what we are concerned with here is the implementation of the death penalty, not some lesser, reversible punishment. Atkins has established that even in cases in which capital punishment would otherwise appear warranted, that sanction cannot constitutionally be applied to the retarded. As stated in non-categorical terms in Roper:
The death penalty may not be imposed on certain classes of offenders, such as juveniles under [18], the insane, and the mentally retarded, no matter how heinous the crime. These rules vindicate the underlying principle that the death penalty is reserved for a narrow category of crimes and offenders.
[
543 U.S. at ___,
125 S.Ct. at 1195,
161 L.Ed.2d at 21 (citations omitted).]
This is so, in the case of retardation, because we as a civilized society can no longer justify the infliction of so irrevocable a penalty upon one whose culpability is lessened by mental infirmity. Lingering concerns regarding the reliability and fairness of capital proceedings involving the mentally retarded reinforce that view. In Ford, the Court observed that in capital proceedings, it "has demanded that factfinding procedures aspire to a heightened standard of reliability." 477 U.S. at 411, 106 S.Ct. at 2602, 91 L.Ed.2d at 347. And the Court has held if, as here, the Constitution renders the fact of execution contingent upon the establishment of a further fact — the mental status of the defendant — "then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being." Id. at 411, 106 S.Ct. at 2602-03, 91 L.Ed.2d at 347-48. See also State v. Harris, 181 N.J. 391, 525, 859 A.2d 364 (2004) ( Harris III) (quoting Ford), cert. denied, ___ U.S. ___, 125 S.Ct. 2973, ___ L.Ed.2d ___ (2005). We thus view a maximal reduction of the risk of wrongful execution to constitute both a moral and a constitutional imperative. That view underlies our opinion in this case.
B. The Capital Trial
In order to place the present issues in context, we briefly summarize the procedures employed in New Jersey in a capital prosecution. As described by the Court in State v. Fortin, 178 N.J. 540, 843 A.2d 974 (2004) ( Fortin II):
Under New Jersey's death penalty statute,
N.J.S.A. 2C:11-3c, the State must prove specific facts in each step of a three-tiered process before a defendant may be sentenced to death. First, the State must prove beyond a reasonable doubt that the defendant purposefully or knowingly caused death or serious bodily injury resulting in death.
N.J.S.A. 2C:11-3a(1), (2). Second, the State must prove beyond a reasonable doubt one of the capital "triggers" in order to advance the defendant to the penalty-phase trial.
[ Id. at 634, 843 A.2d 974.]
If the jury is unable to agree that one of the triggers has been proven beyond a reasonable doubt, the defendant is sentenced to a term of imprisonment of at least thirty years without parole eligibility pursuant to N.J.S.A. 2C:11-3b(1) or to life imprisonment with no possibility of parole pursuant to N.J.S.A. 2C:11-3b(2) or (3). If the jury unanimously finds a capital trigger to exist then,
[t]hird, in the penalty-phase trial, the State must prove beyond a reasonable doubt the existence of any alleged statutory aggravating factors.
N.J.S.A. 2C:11-3c(2)(a). If the jury finds one or more aggravating factors, it must then determine whether those outweigh all of the mitigating factors beyond a reasonable doubt.
N.J.S.A. 2C:11-3c(3)(a).
[
Fortin II, supra, 178 N.J. at 635, 843 A.2d 974.]
The defendant has the burden of producing evidence of the existence of any mitigating factors set forth in N.J.S.A. 2C:11-3c(5) "but shall not have a burden with regard to the establishment of a mitigating factor." N.J.S.A. 2C:11-3c(2)(a). Prior to Atkins, mental retardation could be considered solely as a mitigating factor. N.J.S.A. 2C:11-3c(5)(d) or (h).
Pursuant to N.J.S.A. 2C:11-3c(3):
(a) If the jury or the court finds that any aggravating factors exist and that all of the aggravating factors outweigh beyond a reasonable doubt all of the mitigating factors, the court shall sentence the defendant to death.
(b) If the jury or the court finds that no aggravating factors exist, or that all of the aggravating factors which exist do not outweigh all of the mitigating factors, the court shall sentence the defendant pursuant to subsection b.
(c) If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b.
Subsection b(3)(a) and (b) specify that a person convicted of murder of a child under the age of fourteen years while in the course of the commission of sexual assault in violation of N.J.S.A. 2C:14-2 or criminal sexual contact in violation of N.J.S.A. 2C:14-3 who is not sentenced to death shall be sentenced to a term of life imprisonment without eligibility for parole.
Thus, in summary, a finding by the jury of purposeful or knowing murder only exposes a defendant to a sentence between thirty years and life imprisonment. "Without any other finding by the jury, life imprisonment is the maximum allowable sentence under the capital-murder statute." N.J.S.A. 2C:11-3b. "The jury must find a capital trigger and an aggravating factor to elevate the punishment from a term of imprisonment to death." Fortin II, supra, 178 N.J. at 636, 843 A.2d 974 (emphasis supplied).
C. Facts of This Matter
On May 22, 2001, the body of W.C., a ten-year-old boy, was found near the Whippany River in Morristown after a two-day search. When discovered, the child's body showed evidence of multiple stab wounds. It is alleged that his head had been bludgeoned with a garden tool, that he had been sexually assaulted, and that evidence of semen was found in his underpants.
Investigation, described in fuller detail by the Supreme Court in State v. Jimenez, 175 N.J. 475, 815 A.2d 976 (2003), led the police to defendant, who gave a lengthy confession to the police following his arrest on May 28, 2001 that contained details of the murder. In September 2001, defendant was charged by a Morris County Grand Jury with murder in violation of N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-3a(2) (count one), two counts of felony murder in violation of N.J.S.A. 2C:11-3a(3) (counts two and four), kidnapping in violation of N.J.S.A. 2C:13-1b (count three), attempted aggravated sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(1) (count five), attempted aggravated sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(6) (count six), and third-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4d (count seven.) The State notified Jimenez of its intent to seek the death penalty by filing a notice of aggravating factors pursuant to N.J.S.A. 2C:11-3c(2) and R. 3:13-4(a). However, following the Supreme Court's decision in Fortin II, 178 N.J. at 632-650, 843 A.2d 974, finding that aggravating factors are the functional equivalent of elements of capital murder and thus must be submitted to a grand jury and returned in an indictment, Jimenez's case was re-presented to a grand jury together with allegedly applicable aggravating factors. A superseding indictment amending count one to include the aggravating factors found by the grand jury and otherwise containing the same counts was handed down.
The State claimed that the following factors, enumerated in N.J.S.A. 2C:11-3c(4)(a)-( l) were present: (c) the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated assault or torture; (f) the murder was committed to escape detection for another offense; (g) the murder was committed while defendant was engaged in kidnapping or an attempt to commit a sexual assault or both; and (k) the victim was less than fourteen years of age.
Prior to trial, counsel for Jimenez advised the court and the State that they intended to pursue an Atkins claim on Jimenez's behalf and, in that connection, they submitted the September 17, 2004 report of Frank J. Dyer, Ph.D., an expert in forensic psychology. The trial judge then requested that both parties propose procedures to permit an adjudication of the mental retardation issue. On September 23, 2004, the defense filed a motion seeking an order that would preclude the State from seeking the death penalty and would establish specific procedures to assess Jimenez's retardation claim. The State then successfully sought to compel a mental evaluation of Jimenez, which was conducted by forensic psychologist Frank Dattilio, Ph.D. Dr. Dattilio issued reports dated December 24, 2004 and January 25, 2005.
In Harris III, the Supreme Court held that a defendant who established a basis for the belief that he was mentally retarded as grounds for post-conviction relief sufficient to warrant further inquiry was entitled to present the opinions of his own psychological expert on the issue, and that he could not be limited to the opinions of a court-appointed expert. 181 N.J. at 520-528, 859 A.2d 364. The Court did not address the State's right to present the opinions of its own expert. However, the Court's recognition that, in capital proceedings, the "factfinding procedures [must] aspire to a heightened standard of reliability," compels the conclusion that each party must be given the same opportunity to present evidence. Id. at 525, 859 A.2d 364 (quoting Ford, supra, 477 U.S. at 411, 106 S.Ct. at 2602, 91 L.Ed.2d at 347). See also N.J.S.A. 2C:11-3c(2)(d) ("The State and the defendant shall be permitted to rebut any evidence presented by the other party at the sentencing proceeding").
Both the State and the defense have agreed that the appropriate definition for mental retardation is that promulgated by the American Psychiatric Association (APA) and contained in its Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 2000), which requires evidence of significantly subaverage general intellectual functioning (Criterion A), accompanied by significant limitations in adaptive functioning in at least two enumerated skill areas (Criterion B) and onset before the age of eighteen years (Criterion C). Significantly subaverage intellectual function is defined as an IQ of 70 or below, as measured by one or more of the standardized individually administered intelligence tests. Because a measurement error of five points in assessing IQ is recognized, a score of 70 in actuality may represent a range of 65 to 75. Mild mental retardation is generally associated with IQ levels in the range of 50-55 to 70; moderate retardation with IQ levels of 35-40 to 50-55; severe retardation with IQ levels of 20-25 to 35-40; and profound mental retardation with IQ levels below 20 or 25.
In addition to evidence of IQ levels within the specified range, a diagnosis of mental retardation depends on a determination that the person has significant limitations in adaptive function in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. In the context of a criminal prosecution, the fact that the condition must arise before the person is eighteen years of age provides important protections against specious claims premised on symptoms manifesting at or around the time of that prosecution.
Because a mentally retarded defendant must nonetheless possess the mental competency to stand trial, we assume that the vast majority of defendants to whom Atkins may apply will be found to suffer from mild mental retardation. The DSM-IV describes mild mental retardation in the following terms:
Mild Mental Retardation is roughly equivalent to what used to be referred to as the educational category of "educable." This group constitutes the largest segment (about 85%) of those with the disorder. As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision,
guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings.
The defendant in Atkins was alleged to be mildly mentally retarded, with an IQ of 59. Atkins, supra, 536 U.S. at 309, 122 S.Ct. at 2245, 153 L.Ed.2d at 342. His mental age was described by dissenting members of the Supreme Court of Virginia as between nine and 12. Id. at 310, 122 S.Ct. at 2246, 153 L.Ed.2d at 343 (citing Atkins v. Virginia, 260 Va. 375, 534 S.E.2d 312, 323-25 (2000) (dissenting opinion of Justices Hassell and Koontz)).
In the present case, both Dyer and Dattilio agreed, following administration in Spanish of the Wechsler Adult Intelligence Scale-Revised, that Jimenez's IQ fell into the Mildly Retarded range. Dr. Dyer obtained a score of 68, whereas Dr. Dattilio obtained a score of 69. However, the two experts differed as to Jimenez's adaptive functioning. Dr. Dyer found him to be deficient in a number of areas of adaptive behavior, whereas Dr. Dattilio did not.
The test is known as the Escala De Inteligencia De Weschler Para Adultos — III and is the Spanish version of the Weschler Adult Intelligence Scale — III (WAIS-III).
Evaluation by either the State or the defense of defendant's adaptive skills has been complicated by the fact that defendant spent his formative years in his native country of Honduras and by difficulties in communicating meaningfully with his friends and relatives there.
D. Trial Court Decision
Following briefing and argument, on March 7, 2005, the trial judge issued a written opinion establishing the procedures to be utilized in determining Jimenez's mental status.
He commenced by affirming that the utilization of the DSM-IV definition of mental retardation accorded with the New Jersey Supreme Court's decision in Harris III, supra, 181 N.J. at 528-530, 859 A.2d 364 and Atkins, supra, 536 U.S. at 308 n. 3, 317 n. 22, 122 S.Ct. at 2245 n. 3, 2250 n. 22, 153 L.Ed.2d at 342 n. 3, 348 n. 22 (both citing without reservation the substantially similar definitions of mental retardation adopted by the American Association on Mental Retardation and the American Psychiatric Association).
Mental Retardation: Definition, Classification, and Systems of Supports 1 (Ruth Luckasson ed., 10th ed. 2002).
The judge then considered whether both the Sixth and Eighth Amendments applied to the issue at hand. In this connection, he noted recent United States Supreme Court precedent applying the Sixth Amendment to sentences that were enhanced without a finding by a jury of the facts underlying the enhancement. See, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The judge also noted that a decision of ours construing Blakely remained under consideration by the Supreme Court. See State v. Natale, 373 N.J.Super. 226, 861 A.2d 148 (App.Div. 2004), certif. granted, 182 N.J. 425, 866 A.2d 981 (2005). He further noted that the Court in mandating a hearing to assess mental retardation in a post-conviction relief context in Harris III, but not finding one necessary after ruling that the defendant had not demonstrated that he was retarded, had not specifically addressed Blakely. However, the judge observed:
Our decision was affirmed in part and reversed in part on August 2, 2005. See State v. Natale, 184 N.J. 458, 878 A.2d 724 (2005) ( Natale II). See also the companion cases of State v. Abdullah, 184 N.J. 497, 878 A.2d 746 (2005) and State v. Franklin, 184 N.J. 516, 878 A.2d 757 (2005).
If, however,
Blakely has any impact on the mental retardation issue, then the required hearing, as I read
Harris III, may not be necessary. I presently do not have the benefit of the Supreme Court's view on this issue. If
Blakely does, in fact, affect
Harris III, that may mean once there is a "showing," the retardation issue would be an issue to be determined by a jury with the heavy burden upon the State.
Despite strong indications that he thought an assessment of Jimenez's mental condition raised Sixth Amendment concerns requiring jury resolution, the trial judge, influenced by Harris III, established pre-trial hearing procedures as well. He ruled that if a credible issue as to retardation were demonstrated (as here), a pre-trial hearing should take place pursuant to Harris III, at which the Rules of Evidence would apply and sworn expert testimony would be required. At that hearing, defendant would have the burden of proving his retardation. If proof of such condition were established by clear and convincing evidence, then trial would proceed as a non-capital matter. If proof were established by a preponderance of the evidence, the issue would be reserved for jury consideration at the commencement of the penalty phase, and the State would have the burden to prove, beyond a reasonable doubt, that the defendant was not retarded. If defendant's proofs fell below the preponderance standard, then the issue of mental retardation would not be presented to the jury for its consideration as a potential bar, in and of itself, to execution. However, such evidence could be adduced in the penalty phase as a mitigating factor.
As we have previously noted, both the State and the defense moved for leave to appeal from the trial court's ruling. We granted both motions by orders dated March 23, 2005. The State's motion for direct certification by the Supreme Court was denied on April 13, 2005.
Before us are the following issues: (1) the standard of proof (preponderance, clear and convincing evidence, or beyond a reasonable doubt); (2) the burden of proof (State or defense); (3) the factfinder (judge or jury); and (4) the timing of the decision (pre-trial, post-guilt phase or both).
We do not address what procedural modifications may be made if defendant, with the prosecutor's consent, waives a jury trial in the penalty phase pursuant to N.J.S.A. 2C:11-3c(1). See State v. Di Frisco, 118 N.J. 253, 275, 571 A.2d 914 (1990); State v. Bey, 112 N.J. 123, 161, 548 A.2d 887 (1988).
E. The Parties' Positions
On appeal, the State argues that the trial judge improperly applied Sixth Amendment trial-by-jury requirements to defendant's Eighth Amendment claim, and that a jury's determination of the non-existence of mental retardation is not required. Moreover, the State contends, because the lack of retardation is not an "element" of capital murder, the burden of proof that retardation exists properly can be placed upon the defendant, who must demonstrate the condition by a preponderance of the credible evidence. The State argues that the determination should be made pre-trial, by the court, sitting without a jury. However, it contends that if a jury is employed, the burden of proof should still remain with the defendant. If the defendant fails to meet his burden of proof at the pre-trial or other hearing, then his mental status could be used only as a mitigating factor in the penalty phase. A penalty phase would be required, it contends, even if the defendant were found to be retarded, for the limited purpose of determining a defendant's eligibility for a sentence of life imprisonment without parole pursuant to N.J.S.A. 2C:11-3b(4).
In contrast, the defense argues that the fact of a defendant's mental retardation presents a jury issue under the Sixth Amendment that must be determined in a separate proceeding between the guilt and penalty phases. There, the defense contends, the State must prove, beyond a reasonable doubt, that the defendant is not mentally retarded before the case can proceed to a traditional penalty phase.
The defense agrees with the State that, initially, a pre-trial determination of the retardation issue by a judge is appropriate because a finding of retardation will result in a substantial savings of resources and time. However, it contends that a judicial determination that a defendant is not mentally retarded cannot substitute for an ultimate determination by a jury.
Both the State and the defense agree that the issue of retardation must be considered if a defendant presents a "colorable" claim of retardation pre-trial. As we have previously recognized, they agree as well as to the psychiatric standard applicable to a determination of retardation. We will therefore not discuss either of these issues further, being in substantial agreement with the parties' positions.
II.
A. Retroactivity
The parties have not addressed the issue of the retroactivity of Atkins, and that subject was not addressed by the Supreme Court in its decision. However, in Penry, supra, the Supreme Court found unanimously that any decision exempting a defendant from execution on Eighth Amendment grounds as the result of mental retardation would be applied retroactively to include all cases on collateral review. 492 U.S. at 313-319, 109 S.Ct. at 2944-47, 106 L.Ed.2d at 274-78. The Supreme Court permitted consideration of Atkins issues raised on post conviction review in Harris III, supra, 181 N.J. at 520-21, 859 A.2d 364. We thus find no impediment to our consideration of the issue in connection with a pre-trial interlocutory appeal.
B. The Effect of Apprendi, Ring, Blakely, and Booker
As we have stated, the State takes a position different from the defense when it argues that the Sixth Amendment's guarantees of trial by jury are inapplicable in this Atkins context. As we will later explain, our resolution of this issue is substantially influenced not only by the United States Supreme Court's recent Sixth Amendment jurisprudence but also by the New Jersey Supreme Court's utilization of that precedent in Fortin II when determining the related issue of the necessity of presentation to the grand jury of those aggravating factors necessary to elevate murder to a capital crime.
The Sixth Amendment issue arises as the result of the United States Supreme Court's decisions in Apprendi v. New Jersey, supra, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v. Washington, supra, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403; and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We find throughout these decisions a consistent adherence to the principle that the existence of those facts, whether denominated statutory "elements" of a crime or not, that serve to permit an increase in the penalty imposed upon a criminal defendant must, under the Sixth Amendment, be decided by the jury upon proof beyond a reasonable doubt.
In Apprendi, defendant was convicted, following a plea of guilty, to two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and one count of third-degree unlawful possession of an anti-personnel bomb, N.J.S.A. 2C:39-3a. Prior to sentencing, the State moved for imposition of an extended term of imprisonment on one of the second-degree weapons convictions pursuant to the State's hate crime statute, N.J.S.A. 2C:44-3(e), which permitted enhanced sentencing by a judge in any case in which "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity."
At a pre-sentencing evidentiary hearing held to consider Apprendi's purpose in the conduct at issue, the judge determined by a preponderance of the evidence that his crime was motivated by racial bias and that his actions, consisting of firing shots at the home of a black family, were taken with a purpose to intimidate. The judge found the hate crime statute applicable to Apprendi on this basis and imposed an extended term on him.
On appeal, Apprendi argued that the racial bias that permitted sentencing above the maximum that was otherwise applicable to his second-degree weapons offense was transformed through the State's sentencing laws into the functional equivalent of an element of his weapons crime, and that the court's procedures thus violated his right under the Fourteenth Amendment to due process prior to any deprivation of liberty and his right under the Sixth Amendment to have his guilt determined by a jury verdict upon proof beyond a reasonable doubt. That argument was accepted by the United States Supreme Court, which held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455.
In Apprendi's case, the Court found, the hate crimes sentencing enhancement imposed a second mens rea requirement of a finding of a "purpose to intimidate" on account of, in his case, race. Id. at 492-93, 120 S.Ct. at 2364, 147 L.Ed.2d at 456-57. The Court held that "[t]he defendant's intent in committing a crime is perhaps as close as one might hope to come to a core criminal offense `element'." Id. at 493, 120 S.Ct. at 2364, 147 L.Ed.2d at 457. Moreover, the Court noted that the finding of intent required by the hate crime statute exposed Apprendi to a greater punishment than that authorized by the jury's guilty verdict, turning a second-degree crime into a first-degree one for sentencing purposes. Id. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457. It thus concluded, "the relevant inquiry is not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Ibid. The Court answered that question affirmatively, thereby requiring a jury's determination beyond a reasonable doubt.
Both in terms of absolute years behind bars, and because of the more severe stigma attached, the differential here [between potential sentences of 10 and 20 years] is unquestionably of constitutional significance. When a judge's finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as "a tail which wags the dog of the substantive offense."
[
Id. at 495,
120 S.Ct. at 2365,
147 L.Ed.2d at 458 (quoting
McMillan v. Pennsylvania, 477 U.S. 79, 88,
106 S.Ct. 2411, 2417,
91 L.Ed.2d 67, 77 (1986)).]
Apprendi was followed by
Ring, a more factually analogous decision that, employing
Apprendi's functional analysis, held unconstitutional under the Sixth Amendment an Arizona statute that permitted a judge, sitting without a jury, to determine the presence or absence of the aggravating factors that established whether a defendant, convicted of murder, was subject to the death
penalty. The Court's reasoning closely followed that of the majority in
Apprendi, in that it viewed sentencing factors functionally when determining whether the Sixth Amendment's guarantees applied.
536 U.S. at 609,
122 S.Ct. at 2443, 153 L.Ed.2d at 577 (quoting
Apprendi, supra, 530 U.S. at 494 n. 19,
120 S.Ct. at 2365 n. 19,
147 L.Ed.2d at 457 n. 19). It held:
We find it to be irrelevant that, in Schriro v. Summerlin, 542 U.S. 348, 354, 124 S.Ct. 2519, 2524, 159 L.Ed.2d 442, 449-50 (2004) the Court declined to apply Ring retroactively to matters on collateral review because Ring did not recognize new elements within the crime of murder, but merely declared aggravating factors to function effectively like elements, thereby rendering Ring's change in the law procedural rather than substantive. The fact remains that Ring recognized the applicability of the Sixth Amendment to sentencing factors akin to the trigger we consider here.
In
Walton v. Arizona, 497 U.S. 639,
110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), this Court held that Arizona's sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as "element[s] of the offense of capital murder."
Id. at 649, 110
S.Ct. [at 3055,
111 L.Ed.2d at 525]. Ten years later, however, we decided
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
147 L.Ed.2d 435 (2000), which held that the Sixth Amendment does not permit a defendant to be "expose[d] . . . to a penalty
exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone."
Id. at 483, 120
S.Ct. [at 2359,
147 L.Ed.2d at 450]. This prescription governs,
Apprendi determined, even if the State characterizes the additional findings made by the judge as "sentencing factor[s]."
Id., at 492,
120 S.Ct. at 2363-64, 147 L.Ed.2d at 456].
Apprendi's reasoning is irreconcilable with
Walton's holding in this regard, and today we overrule
Walton in relevant part. Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.
[
536 U.S. at 588-89, 122 S.Ct. at 2432,
153 L.Ed.2d at 563-64.]
As the Court also noted:
The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years [in
Apprendi], but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.
[
Id. at 609,
122 S.Ct. at 2443,
153 L.Ed.2d at 577.]
The United States Supreme Court's decisions in Apprendi and Ring and the functional approach to the characterization of sentence enhancements for Sixth Amendment purposes that those decisions embody constituted the foundation for the New Jersey Supreme Court's decision in Fortin II, in which the Court determined as a matter of state constitutional law that the aggravating factors set forth in N.J.S.A. 2C:11-3c(4) essentially were elements of capital murder that must be presented to a grand jury, just as evidence of their presence must be determined by a petit jury to exist, beyond a reasonable doubt, during the penalty phase of a capital proceeding.
The Fortin II Court's focus was on the necessity of the presentment to a grand jury of aggravating factors — a Fifth Amendment concern under the United States Constitution and federal law, but one determined by the Fortin Court as a matter of State constitutional law under Article 1, paragraph 8. However, because its analysis turned on Apprendi and Ring, both of which essentially were Sixth Amendment petit jury cases, we find the Court's rationale of significance in the present instance.
See Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 1226-27, 31 L.Ed.2d 536, 543 (1972) (Although Due Process Clause of the Fifth Amendment guarantees a defendant a fair trial, "it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury.")
In particular, we note the Supreme Court's construction of New Jersey's capital murder statute as accretive in nature. Although the potential for the imposition of a death penalty inheres within the statute — a point upon which the State's arguments to a large extent depend — and to that extent death constitutes the statutory "maximum" provided by N.J.S.A. 2C:11-3c, the Court did not view the statute in that fashion. Rather, it viewed the implementation of the statute as a three-step process — requiring a sequential finding of (1) knowing or purposeful murder, (2) the existence of a capital trigger and (3) one or more aggravating factors that outweighed beyond a reasonable doubt any mitigating factors — before death could be imposed. 178 N.J. at 634-35, 843 A.2d 974.
Because each step serves to increase the potential penalty, the Fortin II Court held that under Apprendi and Ring "[t]he jury" and not the court, "must find a capital trigger and an aggravating factor to elevate the punishment from a term of imprisonment to death." Id. at 636, 843 A.2d 974 (emphasis supplied). Abrogating its prior holding in Martini I, the Court held that the aggravating factors — and presumably the capital triggers — do not merely enlarge the available sentencing options for certain defendants, as the State has argued here. Id. at 637, 843 A.2d 974 (quoting State v. Martini, 131 N.J. 176, 224, 619 A.2d 1208 (1993) ( Martini I)). The Fortin II Court acknowledged Apprendi's holding that the "relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 641, 843 A.2d 974 (quoting Apprendi, supra, 530 U.S. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457).
Fortin II does not, as the State suggests, mandate that a grand jury find that a defendant is not mentally retarded. Although akin to a trigger, the issue of retardation is unlikely to arise in a pre-indictment context. Further, the possibility of retardation need not be presented to a grand jury as exculpatory evidence unless it clearly serves to negate defendant's knowing or purposeful state of mind. An intent to commit a crime is different conceptually from the concepts of personal culpability upon which Atkins depends.
Since Fortin, the United States Supreme Court has also decided Blakely, holding there that a Washington judge violated defendant's Sixth Amendment rights when he sentenced him to a term greater than the maximum he could have otherwise imposed as the result of his determination that in defendant's manner of kidnapping his wife, defendant had acted with "deliberate cruelty" — a fact neither admitted by the defendant nor found by a jury. 542 U.S. at 303, 124 S.Ct. at 2537, 159 L.Ed.2d at 413.
Our precedents make clear . . . that the "statutory maximum" for
Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose
without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," and the judge exceeds his proper authority.
[
Id. at 303-04,
124 S.Ct. at 2537,
159 L.Ed.2d at 413-14 (quoting 1
J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872)).]
In language upon which the trial court relied in the present matter in suggesting that a Sixth Amendment right exists, the Blakely Court justified its decision by noting that Apprendi had held: "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment." Blakely, supra, 542 U.S. at 313, 124 S.Ct. at 2543, 159 L.Ed.2d at 420 (citing Apprendi, supra, 530 U.S. at 466, 120 S.Ct. at 2348, 147 L.Ed.2d at 435). See also Natale, supra, 373 N.J.Super. at 234, 861 A.2d 148 (quoting this statement from Blakely and holding that a court's imposition of a sentence above the presumptive violates the requirements of that case), aff'd in part and rev'd in part, 184 N.J. 458, 878 A.2d 724 (2005) ( Natale II) (avoiding Sixth Amendment prohibitions, in part, by construing the New Jersey Criminal Code so as to eliminate presumptive terms). See also State v. Abdullah, 184 N.J. 497, 878 A.2d 746 (2005) (remanding for resentencing on burglary conviction in light of Natale II but affirming life sentence for murder and accompanying parole disqualifier as not implicating Sixth Amendment concerns); State v. Franklin, 184 N.J. 516, 878 A.2d 757 (2005) (vacating extended sentence imposed pursuant to the Graves Act when based upon judicial factfinding utilizing preponderance of evidence standard).
The trial court continued:
Absent
Blakely, the argument that mental retardation is not an element of the crime of capital murder, or that it is not the functional equivalent of an element of the offense, and thus the State should not be required to prove its absence to a jury beyond a reasonable doubt, is somewhat more forceful. However,
Blakely does exist and I have referenced the
Blakely quote contained in
Natale, which has greatly influenced me.
The trial court's determination that, once Jimenez had demonstrated by a preponderance of the credible evidence that he was retarded, the burden of proof lay with the State to demonstrate to a jury by proof beyond a reasonable doubt that he was not retarded was the result.
The Blakely Court continued, in discussing the enhanced punishment imposed for the lesser crime of kidnapping before it:
The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to "the unanimous suffrage of twelve of his equals and neighbours," rather than a lone employee of the State.
[
Blakely, supra, 542 U.S. at 313-14,
124 S.Ct. at 2543, 159 L.Ed.2d at 420 (quoting 4 W. Blackstone,
Commentaries on the Laws of England, at 343 (1769)).]
See also Booker, supra, 543 U.S. at ___,
125 S.Ct. at 756,
160 L.Ed.2d at 650 (applying the principles of
Apprendi and
Blakely to the Federal Sentencing Guidelines and holding that: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.");
Natale, supra, 373 N.J.Super. at 235-36, 861 A.2d 148.
III.
We agree with the trial court that as a matter of federal constitutional law as it may be construed by the United States Supreme Court, a determination of what procedures are required under Atkins is not as clear as we would prefer. In particular, we note the fact that Atkins left the formulation of procedures to the states, and expressed no opinion as to the constitutionality of existing legislation on the subject. It thus may be, as commentators and courts have suggested, that the issue is as wide open as it appears to be. The fact that Ring was decided four days after Atkins, yet Ring's proscriptions are no where foreshadowed in Atkins has likewise been cited as evidence that the United States Supreme Court does not view the absence of retardation, once the issue of its existence is raised, as an issue subject to the Sixth Amendment. However, it is equally possible that the Court simply adopted in this context the more measured approach to constitutional adjudication advocated by Justice O'Connor in her dissent in Apprendi, supra, 530 U.S. at 525, 120 S.Ct. at 2381, 147 L.Ed.2d at 476 and, since not faced with the constitutional issue, did not decide it.
A particularly comprehensive analysis of Atkins can be found in Peggy M. Toblowsky, Atkins Aftermath: Identifying Mentally Retarded Offenders and Excluding Them from Execution, 30 J. Legis. 77 (2003). See also, e.g., Note, Implementing Atkins, 116 Harv. L.Rev. 2565 (2003).
Whether the federal constitution as interpreted in the future by the United States Supreme Court would compel a determination by the jury that Jimenez is not mentally retarded prior to imposition of the death penalty is, however, a subject that we believe can be left for another day, since we regard the reach of New Jersey's constitution as sufficient to embrace the essential principles of Apprendi, Ring, Blakely, and Booker and to require their application in this Atkins context. This extension, we find, is not precluded by prior decisions, none of which construed art. I, ¶ 9 in the present context. See State v. Stanton, 176 N.J. 75, 88, 820 A.2d 637 (2003); State v. Whalen, 235 N.J.Super. 506, 517, 563 A.2d 457 (App.Div. 1989) (Baime, J. concurring). We read Atkins, as implemented under this State's statutory scheme, as transforming mental retardation from solely a mitigating factor to the functional equivalent of a capital trigger, since death can be imposed only upon those who are not retarded.
Because we decide this matter of state constitutional grounds, we need not address whether Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), upon which the State relies for the proposition that death penalty triggers need not be found by a jury, retains any precedential value in light of the Apprendi line of cases. But see Ring, supra, 536 U.S. at 598-604, 122 S.Ct. at 2437-41, 153 L.Ed.2d at 569-74.
For that reason, we do not regard footnote 16 in Apprendi, a footnote frequently cited by courts and commentators rejecting the applicability of the Sixth Amendment to Atkins hearings, as persuasive evidence here. That footnote distinguishes between aggravating and mitigating factors for Sixth Amendment purposes and asserts that the Sixth Amendment applies only to the former. However, in light of Atkins, we view the lack of mental retardation as a trigger, and the presence of retardation to constitute more than merely a mitigating factor.
We are also persuaded that if, as the Apprendi line of cases dictates, Jimenez has the right to insist that the State prove to a jury all facts legally essential to his punishment, once the issue is raised, the fact that he is not retarded must be proven in like fashion. This is so because the existence of a capital trigger constitutes a threshold determination of fact forming a condition precedent to the imposition of a death sentence, similar to the aggravating factors that were the subject of Ring and, in a noncapital context, the sentencing factors considered in Apprendi, Blakely, and Booker. See State v. Loftin, 146 N.J. 295, 349, 680 A.2d 677 (1996) ( N.J.S.A. 2C:11-3c imposes a triggering device for the death penalty — an additional requirement that renders the defendant death-eligible). Thus its effect is to act as a sentencing enhancer under the interpretation of our capital sentencing scheme adopted in Fortin II. Although a lack of retardation would not constitute a threshold consideration in every case (or indeed, in most cases), when a defendant's mental status has been placed in issue, as here, we find a clear right on the part of a defendant to insist that a jury determine whether he is mentally retarded and thus whether that threshold to the imposition of a death sentence can be met, or whether he is barred from execution.
We find some validity in the State's argument that it will have less access than a defendant to the underlying evidence necessary to establish that defendant's mental status. However, that balance can in large measure be procedurally righted by the trial court as it is in other instances in which the State bears a reverse burden of proof. We do not regard any remaining imbalance of sufficient concern to overcome constitutional mandates.
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), together with Ring, requires as a matter of due process, that the absence of retardation be established by the State beyond a reasonable doubt. See also, e.g., State v. Stanton, 176 N.J. 75, 87-88, 820 A.2d 637 (2003).
Such a determination, we find, should be made in the second phase of a capital murder trial, immediately following a determination of defendant's guilt. The same jury should be utilized. State v. Chenique-Puey, 145 N.J. 334, 343, 678 A.2d 694 (1996); State v. Ragland, 105 N.J. 189, 195, 519 A.2d 1361 (1986). The jury must be informed of the consequences of its decision including the likely term of imprisonment if defendant is found to be mentally retarded and, if the matter is to proceed as a capital prosecution, the jury must determine unanimously and beyond a reasonable doubt that the defendant is not mentally retarded.
The Court has previously held in a double jeopardy context that the requirement of the death penalty statute that the murder be by defendant's "own conduct" does not constitute an "element" of the crime of murder, but rather a "triggering device." State v. Cruz, 171 N.J. 419, 426-27, 794 A.2d 165 (2002). See also State v. Gerald, 113 N.J. 40, 100, 549 A.2d 792 (1988). We do not regard those decisions as precluding our present interpretation, since in neither case was the issue that we address specifically raised.
IV.
We find as well as a matter of public policy that the risk of error — of putting to death one who should rightfully be constitutionally exempt — is too great for any burden of proof to be placed upon the defendant and for the determination of death qualification to be made by the trial judge, as it is in some states. For if Jimenez or any other capital defendant is in fact retarded, the whole purpose for the imposition of the death penalty is lost, since as Atkins recognizes, it provides neither effective deterrence nor retribution and has been determined to be inhumane. As the Court noted in Ring, Arizona had suggested in that case that a judicial determination of aggravating factors might be a better guarantee against the arbitrary imposition of the death penalty. However, the Court stated:
Mental retardation is directed to be determined by the court in the following state statutes: Ariz.Rev.Stat. § 13-703.02(g); Colo.Rev.Stat. § 18-1.2-1102(3); Del. Code Ann. tit. 11 § 4209(d)(3)(c); Fla. Stat. Ann. § 921.137(4); Idaho Code § 19-2515A(2), (3); Ill. Comp. Stat. ch. 725 § 5/114-15(b); Ind.Code § 35-36-9-5; Kan. Stat. Ann. § 21-4623(b); Ky.Rev.Stat. 532.135; Neb.Rev.Stat. § 28-105.01(4); Nev. Rev. St. 174.098(6); N.M. Stat. Ann. § 31-20A-2.1(C); N.Y.Crim. Proc. Law § 400.27(12)(a); S.D. Codified Laws § 23A-27A-26.3; Tenn. Code Ann. § 39-13-203(c); Utah Code Ann. § 77-15a-104(11)(a); Wash. Rev.Code § 10.95.030(2). See also Hall v. State, 160 S.W.3d 24 (Tex.Crim.App. 2004). Cf. Morrow v. State, ___ So.2d ___, 2004 WL 1909275 (Ala.Crim.App. 2004).
Mental retardation is directed to be determined at least in part by the jury in the following state statutes:
Ark. Code Ann. § 5-4-618(d)(2)(A);
Cal.Penal Code § 1376(b)(2);
Conn. Gen. St. § 53a-46a(h);
Ga. Code Ann. § 17-7-131(c)(3);
La. Code Crim. Proc. Art. 905.5.1(c)(1);
Mo. Rev. St. § 565.030.4(1), (4);
N.C. Gen. St. Ann. § 15A-2005(e);
Va. Code Ann. § 19.2-264.3:1.1(C).
See also Murphy v. State, 54 P.3d 556, 558 (Okla.Crim.App. 2002),
modified in part, State ex rel Lane v. Bass, 87 P.3d 629 (Okla.Crim.App. 2004);
Richardson v. State, 89 Md.App. 259, 598 A.2d 1, 3-4 (1991),
aff'd, 332 Md. 94, 630 A.2d 238 (1993) (construing
Md. Code Ann., Crim. Law § 20292(b), which does not designate the factfinder);
Franklin v. Maynard, 356 S.C. 276,
588 S.E.2d 604, 606 (2003).
Entrusting to a judge the finding of facts necessary to support a death sentence might be
"an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. . . . The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free."
[
Ring, supra, 536 U.S. at 607,
122 S.Ct. at 2442, 153 L.Ed.2d at 514[576] (quoting
Apprendi, supra, 530 U.S. at 498, 120 S.Ct. at 2367,
147 L.Ed.2d at 459-60 (Scalia, J. concurring)).]
Moreover, the Ring court observed, the superiority of judicial factfinding in capital cases is far from evident. Id. at 607-08, 122 S.Ct. at 2442, 153 L.Ed.2d at 576. That twenty-nine out of thirty-eight states that permit capital punishment generally entrust sentencing decisions to juries was cited by the Court as circumstantial evidence of that fact. Id. at 608 n. 6, 122 S.Ct. at 2442 n. 6, 153 L.Ed.2d at 576 n. 6.
The Blakely Court held in invalidating the Washington court's sentence in light of Apprendi:
Our commitment to
Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. . . .
Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict. Without that restriction, the jury would not exercise the control that the Framers intended.
[
Blakely, supra, 542 U.S. at 305-06,
124 S.Ct. at 2538-39, 159 L.Ed.2d at 415.]
A review of New Jersey's capital sentencing scheme discloses the Legislature's determination to entrust all factual findings required for imposition of the death sentence to a jury, and not to the court. See also, e.g. Witherspoon v. Illinois, 391 U.S. 510, 519-20, 88 S.Ct. 1770, 1775-76, 20 L.Ed.2d 776, 783 (1968) (entrusting jurors in death penalty cases to express the conscience of the community on the ultimate question of life or death). It would thus be anomalous to increase the court's power in this one instance, while diminishing that of the jury.
In New Jersey, a result similar to that in Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (a case in which the Court upheld a death sentence imposed by a trial judge after the jury had recommended life imprisonment) could not occur. The issue of its continued viability thus does not presently arise. Similarly, see Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995) (upholding statutory scheme that permitted a judge to impose a death sentence after "considering" advisory jury verdict without specification of weight to be accorded to the jury's recommendation).
It has been argued that such a shift is justified in this circumstance because, as recognized in Atkins, mentally retarded individuals may be poor witnesses, may not be perceived as exhibiting remorse, and may be regarded by a jury as posing a greater risk of future dangerousness. Atkins, supra, 536 U.S. at 321, 122 S.Ct. at 2252, 153 L.Ed.2d at 350. However, nothing in Atkins indicates that a single judge is better equipped than a jury to recognize and consider the deficiencies of a retarded person or to assess his future dangerousness. We thus view the jury not as an impediment but as an important bulwark standing between the individual defendant and the power of the government to execute him. See Booker, supra, 543 U.S. at ___, 125 S.Ct. at 752, 160 L.Ed.2d at 645. Moreover, we regard the existence of the due process and perceptual problems recognized in Atkins as providing a practical ground for raising the level of proof from a preponderance of the evidence to one of beyond a reasonable doubt, thereby providing added assurance to the jury's verdict.
In a concurring opinion in In re Winship, supra, Justice Harlan discussed the State's burden of proof in a different context, but nonetheless in terms of relevance here. He stated:
As Mr. Justice Brennan wrote for the Court in
Speiser v. Randall, 357 U.S. 513, 525-526,
78 S.Ct. 1332, 1341-1342,
2 L.Ed.2d 1460 (1958):
`There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden * * * of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.'
In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.
[
397 U.S. at 372, 90 S.Ct. at 1076-77,
25 L.Ed.2d at 380.]
Here, where the consequences of error are so immeasurably more severe, we accord the Justice's comments added weight.
V.
As the defense recognizes, placing the burden upon the State to demonstrate to a jury beyond a reasonable doubt that Jimenez is not mentally retarded is consistent with the State's treatment of diminished capacity. See State v. Delibero, 149 N.J. 90, 692 A.2d 981 (1997). See also State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987). Although as the State notes, insanity is an affirmative defense that must be proven by a defendant by a preponderance of the credible evidence, a claim of diminished capacity operates differently. "A jury considers evidence of diminished capacity in relation to the State's burden to prove the essential elements of the crime." Delibero, supra, 149 N.J. at 98, 692 A.2d 981 (citing State v. Harris, 141 N.J. 525, 555, 662 A.2d 333 (1995)).
Although the State argues otherwise, we find a claim of mental retardation to more closely resemble that of diminished capacity than insanity. "Diminished capacity describes a disease or defect of mind that may negate the mental state that is an element of the offense charged" whereas "[t]he insanity defense exculpates an actor from guilt for conduct that would otherwise be criminal." Delibero, supra, 149 N.J. at 92-93, 692 A.2d 981. Although mental retardation, at least as asserted by one competent to stand trial, does not negate a defendant's state of mind, and he may still be found guilty of knowing or purposeful murder, it does negate a trigger essential to the imposition of the penalty of death and to that extent is similar. Rather than negating a mental condition to the crime, it negates a mental condition necessary to the implementation of the extreme penalty of death — the ability to appreciate the deterrent and retributive purposes of capital punishment. Mental retardation differs markedly from insanity in this regard, since insanity absolves a defendant from guilt, whereas mental retardation merely absolves a defendant from a form of punishment. Mental retardation, as we have previously demonstrated, can no longer be viewed as exculpatory, as insanity is viewed, or solely as a factor in mitigation of sentence.
The defense notes other instances when, if the issue is raised, the State is required to negate the existence of a claimed mental condition. See, e.g., duress, N.J.S.A. 2C:2-9; consent, N.J.S.A. 2C:2-10; the defense of self, property and others, N.J.S.A. 2C:3-4 to -8; and passion/provocation, N.J.S.A. 2C:11-4.
We recognize as well that the procedures that we have adopted are consistent with those recommended, following considered study, by the Trial Judges Committee on Capital Causes. See Judges Bench Manual for Capital Causes at 65-74 (January 1, 2005).
VI.
As a final matter, we turn to the trial court's pre-trial procedures for the implementation of Atkins. The court proposed that when a colorable claim of mental retardation had been made, the issue of its existence would be considered by the court prior to trial in a hearing to which the Rules of Evidence would apply. Unlike the post-guilt phase proceedings that the court also proposed, here, the defendant would have the burden of proof, which if met by clear and convincing evidence, would eliminate the necessity of a penalty phase. If met only by a preponderance of the evidence, the issue would then be reserved for the jury's consideration under Sixth Amendment standards after the guilt phase. If lesser proof were found by the court to exist, the defendant could only utilize his mental status as a traditional mitigating factor in the penalty phase of his trial.
It is here that we disagree with that court's thoughtful analysis, finding that the hearing procedures of Harris III upon which the trial court's decision appears to have depended were proposed in a different, post-conviction relief context, and that a hearing and factfinding of the sort envisioned by the judge have no place in a case in which a claim of mental retardation is raised prior to trial. We regard the court's concern that the specter of execution not hang over a defendant unnecessarily and that the cost of a capital prosecution be minimized when possible to have been both rationally and humanely founded. Thus, we find that if reasonable minds could not differ as to the existence of a defendant's mental retardation, that determination should be made as early in the proceeding as practicable. However, we doubt that such a circumstance will arise among those defendants (who we assume will at most be mildly retarded) that a prosecutor will seek to prosecute capitally, because the difficulty of applying the DSM-IV's adaptive skill factors will in all likelihood lead to divergent views of a defendant's mental capacity.
Because we have determined that when the contrary is asserted, the fact that a capital defendant is not mentally retarded constitutes a triggering event with constitutional implications, we cannot in any other circumstance, consistent with constitutional principles, permit a shift in the burden of proof, a change in the degree of proof, or the substitution of a judge as factfinder for a jury. The constitution does not permit a judge to function as a gatekeeper in this context.
We are particularly concerned by the imposition of a clear and convincing burden of proof on a defendant in a capital cause. See Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (holding that Oklahoma's requirement that a defendant prove his incompetency by clear and convincing evidence violated due process).
As a practical matter, we note as well the State's argument that regardless of the result of a pre-trial hearing, a weighing of aggravating and mitigating factors in a penalty phase proceeding may be required in order to determine whether a life sentence without parole should be employed. Further, we have concerns that a pretrial determination of mental condition will inevitably lead to motions for leave to appeal by the disappointed party and a likelihood of fractionated appellate review that would be eliminated if all guilt and sentencing issues were considered together following the jury's verdict.
VII.
In summary, we reverse the order of the trial court as it relates to pre-trial procedures designed to resolve the issue of whether Jimenez is mentally retarded, finding that a judge can make that decision pre-trial only in those rare occasions in which reasonable minds cannot differ as to the existence of retardation. We affirm his order as it relates to proceedings after the guilt phase, finding on state constitutional and policy grounds that when the issue of retardation has been properly raised, the lack of retardation functions in a manner similar to a triggering factor to be determined by a jury in the second, post-guilt, phase of a capital prosecution, with the State bearing the burden of proof beyond a reasonable doubt. Even if the defendant is found by a jury not to be mentally retarded, evidence of his mental status can be introduced as a mitigating factor.
The court's order is thus affirmed in part and reversed in part, and the matter is remanded to the trial court for further proceedings in accordance with this opinion.