State of New Jersey v. Raymond E. Troxell

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3730-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION

v. February 13, 2013

RAYMOND E. TROXELL, APPELLATE DIVISION

Defendant-Appellant.
_____________________________________________________

Submitted March 5, 2013 – Decided February 13, 2014

Before Judges Messano, Lihotz and Ostrer.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 09-02-0348.

Joseph E. Krakora, Public Defender, attorney
for appellant (Jacqueline E. Turner,
Assistant Deputy Public Defender, of counsel
and on the brief).

Bruce J. Kaplan, Middlesex County
Prosecutor, attorney for respondent (Joie
Piderit, Assistant Prosecutor, of counsel
and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Defendant Raymond E. Troxell was indicted by the Middlesex

County grand jury for the first-degree murder for hire of his
business partner, Vincent Russo, N.J.S.A. 2C:11-3(a)(1) or (2),

-3(b)(4) and -3(b)(4)(e). Co-defendant, Frank Marsh, was

charged in the same indictment with the first-degree purposeful

or knowing murder of Russo, N.J.S.A. 2C:11-3(a)(1) or (2),

-3(b)(4) and -3(b)(4)(d); second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Defendant

was tried separately from Marsh and found guilty by the jury.

The jury also answered two specific interrogatories in the

affirmative, compelling a mandatory sentence of life without

parole, pursuant to N.J.S.A. 2C:11-3(b)(4). Defendant raises

the following arguments on appeal:

POINT I

THE DEFENDANT'S VIDEOTAPED STATEMENT WAS THE
PRODUCT OF PSYCHOLOGICALLY COERCIVE
INTERROGATION. U.S. Const. Amends. V, XIV;
N.J.R.E. 503.

POINT II

THE JUDGE ERRED IN ADMITTING EVIDENCE OF THE
CO-DEFENDANT'S OWNERSHIP OF A NUMBER OF
LEGAL GUNS, AS PROOF OF THIS OWNERSHIP WAS
IRRELEVANT AND WAS AN IMPROPER COMMENT ON
THE EXERCISE OF A CONSTITUTIONAL RIGHT[.]
U.S. Const. Amends. II, VI, XIV; N.J. Const.
Art. I, para. 10. (Not Raised Below)

POINT III

THE TRIAL JUDGE ERRED IN FAILING TO TELL THE
JURY THAT A FINDING ON THE TRIGGERING
FACTOR, MURDER FOR HIRE, MUST BE UNANIMOUS

2 A-3730-10T2
 AND, IF NOT, A VALID VERDICT WOULD STAND.
(Not Raised Below)

In a pro se supplemental brief, defendant raises the following

points:

POINT I

DEFENDANT'S STATEMENT TO POLICE SHOULD HAVE
BEEN SUPPRESSED AS HE DID NOT KNOWINGLY OR
VOLUNTARILY WAIVE HIS RIGHT TO REMAIN SILENT
. . . .

POINT II

DEFENDANT'S STATEMENT MUST BE SUPPRESSED AS
THE POLICE FAILED TO SCRUPULOUSLY HONOR HIS
RIGHT TO REMAIN SILENT . . . .

POINT III

THE ADMISSION OF EVIDENCE OF FRANK MARSH'S
INVOLVEMENT IN THE INSTANT TRIAL
IMPERMISSIBLY LOWERED THE STATE'S BURDEN OF
PROOF ON THE MATERIAL ELEMENTS OF THE CRIME
CHARGED AND RESULTED IN A FLAWED JURY
INSTRUCTION[,] THEREBY DENYING DEFENDANT HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL
. . . .

POINT IV

THE ADMISSION OF EVIDENCE OF FRANK MARSH'S
INVOLVEMENT IN THE INSTANT TRIAL
IMPERMISSIBLY CREATED A CONFLICT OF INTEREST
BY FORCING DEFENDANT'S COUNSEL TO ALSO HAVE
TO DEFEND HIS CLIENT'S CO-DEFENDANT DESPITE
SEVERED TRIALS; THEREBY DENYING DEFENDANT
HIS DUE PROCESS RIGHTS TO A FAIR TRIAL, AND
EFFECTIVE ASSISTANCE OF COUNSEL . . . .

Having considered these arguments in light of the record and

applicable legal standards, we affirm.

3 A-3730-10T2
 I.

In summer 2008, defendant and Russo opened an Italian deli,

Mezzaluna, in North Brunswick. Paul Scala, who owned a bakery

next door, was instrumental in introducing the two men to each

other. Russo, who lived on Staten Island, was "like a brother

to [Scala]," and defendant was his "good friend[]." Soon after

the business opened, however, defendant began complaining to

Scala that, despite the fledgling business's financial problems,

Russo was compensating himself and not contributing to the

workload.

The complaints worsened as the months passed, and, on one

occasion, defendant told Scala that "if he (Russo) takes another

. . . dime[,] my friend . . . will go in there and shoot him in

the back of the store in the head." On another occasion,

defendant told Scala he had some "crazy friend . . . from

Edison" who would "do the job." On a third occasion, defendant

told Scala, "I'll kill that mother f------, I got a guy for

[$]3000 [who] is going to shoot him[.]" Scala told Russo, who

brushed off the threats, saying Scala was "paranoid" and

defendant "talk[ed] too much."

Other witnesses called by the State testified to the

animosity between defendant and Russo over the operation of the

business. Mezzaluna's cook, Anthony Agostino, identified notes

4 A-3730-10T2
left by defendant for Russo, threatening legal action and

complaining about Russo talking money from the business.

At approximately 6:30 a.m. on December 16, 2008, North

Brunswick Township police officer Robert Frangella was

dispatched to Mezzaluna. All the doors were locked, but

Frangella noted a Jeep with New York license plates parked in

the rear. Shortly thereafter, Agostino arrived and opened the

front door. Frangella found Russo's lifeless body near the back

office door, on its knees and slumped over a box. It was "ice

cold" and exhibited "lividity." No spent bullet casings were

found at the scene, and a bottle containing Oxycontin was found

on a table near the body.

It was estimated that Russo had been dead for approximately

twelve hours. Although not initially clear what caused Russo's

death, the medical examiner determined at autopsy that Russo

died from a single gunshot wound to the head fired from a

distance of four to six inches. The medical examiner opined it

was most likely that Russo was shot while sitting in the chair

in his office. Russo may have survived the shooting for a short

period of time, during which he would still have had limited

movement.

John Kissel testified that defendant was "one of [his] best

friends," the two having both grown up together in Edison. They

5 A-3730-10T2
both knew co-defendant Marsh, who was also from Edison. Kissel

owned Alpha Cab Company (Alpha Cab), and both defendant and

Marsh worked at Alpha Cab at the time of the murder. Defendant

complained about Russo and offered Kissel $3000 to kill Russo;

Kissel refused. Kissel testified that defendant talked about

killing Russo in Marsh's presence, but Kissel did not know

whether the two discussed the issue outside his presence.

Kissel testified that on December 15, 2008, at

approximately 7:00 p.m., Marsh came to his office at Alpha Cab.

Following a brief conversation, the substance of which was not

admitted before the jury, Kissel went to Mezzaluna and saw

Russo's Jeep parked in the back. Kissel called defendant and

met him in the parking lot of a Walmart in North Brunswick.

Kissel "told [defendant] that [Russo] was dead." Defendant was

"[s]tunned a little bit." Kissel and defendant then went to

defendant's house, and, at some point, Kissel saw defendant

"holding a wad" of cash. Marsh arrived at defendant's house and

stayed "[m]aybe [fifteen] minutes" before leaving. Kissel did

not see defendant give the money to Marsh.

Kissel and defendant went to a bar around 11:00 p.m., and

Marsh arrived a short time later. Angela Cusamano, a barmaid,

testified that the three men were there, and videotapes from

surveillance cameras at the bar corroborated the meeting. Cell

6 A-3730-10T2
phone records also revealed that defendant and Marsh spoke to

each other numerous times on December 15. Defendant also called

Marsh shortly after leaving the bar, at approximately 12:47 a.m.

on December 16. Marsh called defendant later that afternoon,

but, the call went directly to defendant's voice mail. At the

time, defendant was being interviewed by investigators. Within

thirty minutes of completing the interview, cell phone records

revealed that defendant called Marsh and spoke to him for

several minutes.

Bill Unger, a dispatcher and driver at Alpha Cab, saw

defendant and Marsh speaking together outside the cab company on

the afternoon of December 15. Unger, a gun enthusiast,

testified that Marsh previously had shown him a "two-shot

derringer" he owned.1 Marsh showed Unger the "very large" ".357"

bullets that the derringer used and left one in the cab

company's office "as a souvenir . . . ." Subsequent testimony

by the State's ballistics expert revealed that this caliber

bullet was consistent with the projectile fragments recovered

from Russo's body at autopsy. The bullet that produced the

fragments could have been fired from a derringer.

1
A derringer is a "short-barreled pistol having a large
bore." Webster's New College Dictionary 306 (2 ed. 1999).

7 A-3730-10T2
 Charles Chicarella, a friend of Marsh, testified that he

was trying to obtain some Oxycontin on December 15, 2008, but

Marsh claimed he had none. However, late in the evening, at

around 10:00 p.m., Marsh arrived at Chicarella's house and gave

him two pills. Chicarella testified the pills looked the same

as those in the bottle found by Russo's body.

Defendant was interviewed by Investigator Paul Miller of

the Middlesex County Prosecutor's office on December 16, 2008.

A formal statement was videotaped and played for the jury.

Miller interviewed defendant again on December 18, 2008, after

having interviewed Kissel and other witnesses. Defendant

acknowledged saying months earlier that he "wish[ed] [Russo]

wasn't around." But, defendant claimed he did not know Marsh

would actually take him seriously and kill Russo. When Marsh

came to his house to be paid, defendant gave Kissel $3000 and

told him to give it to Marsh out of fear. The second statement

was videotaped and played for the jury.

Marsh lived in Macungie, Pennsylvania. On December 19,

Miller and other law enforcement officers executed a search

warrant at Marsh's home and seized various firearms and

ammunition. Also found was an empty American Derringer "gun

box."

8 A-3730-10T2
 While in the Middlesex County Correctional Center awaiting

trial, defendant approached David Stankovits, a fellow inmate,

and asked him "to testify on [defendant's] behalf." Stankovits

told the jury that defendant asked him to tell police that, on

December 15, while Stankovits was selling drugs near Scala's

bakery, he saw a large man exit a car and enter Mezzaluna

through the rear door. In exchange for this testimony,

defendant promised Stankovits $1000 and "goodies in jail."

[At the court's direction, Sections II
and III of its opinion have been
redacted from the published opinion
because they do not meet the criteria
set by R. 1:36-2(d) for publication.]

IV.

Finally, we consider defendant's contention that the judge

failed to properly instruct the jury that it must return a

unanimous verdict as to any "triggering" factor -- a finding

that would make defendant eligible for a mandatory sentence of

life imprisonment without parole. See N.J.S.A. 2C:11-3(b)(4).

Defendant also posits a more subtle argument.2 Analogizing to

prior death penalty jurisprudence, he argues that the judge

should have told the jurors they were free to return a non-

unanimous verdict on the triggering factor. He contends this

2
We asked defendant and the State to supplement their original
briefing on this point and now consider the arguments presented.

9 A-3730-10T2
failure amounts to plain error, because had the jury been

properly instructed and returned a non-unanimous verdict on the

triggering factor, he would not have faced a mandatory life

sentence without parole.

The State contends that prior jurisprudence is inapplicable

in light of the Legislature's repeal of the death penalty and

adoption of significant statutory amendments in 2007. The State

further argues that, even if it was error to omit a non-

unanimity instruction, we must conduct our review under the

plain error standard, since defendant did not object. See e.g.,

State v. Singleton, 211 N.J. 157, 182 (2012) ("Appellate review

applies the plain-error standard when a defendant fails to

object to a given jury charge."). Under the unique facts of the

case, the State contends any error was not "clearly capable of

producing an unjust result." R. 2:10-2. Lastly, the State

notes that if we conclude it was plain error to omit such an

instruction, only defendant's sentence is affected, and we

should remand for imposition of a sentence in accordance with

N.J.S.A. 2C:11-3(b)(1), and the No Early Release Act, N.J.S.A.

2C:43-7.2 (NERA).

A.

Pursuant to amendments enacted by the Legislature in 2007,

New Jersey's death penalty was repealed and "replace[d] . . .

10 A-3730-10T2
with life imprisonment without eligibility for parole in certain

circumstances." See Senate Comm. Statement to Senate Comm.

Substitute for S. Nos. 171 and 2741 (May 10, 2007), enacted as

L. 2007, c. 204 (Dec. 17, 2007) (the 2007 amendments). Under

the present statutory scheme, "a person convicted of murder

shall be sentenced . . . to a term of 30 years, during which the

person shall not be eligible for parole, or . . . to a specific

term of years which shall be between 30 years and life

imprisonment of which the person shall serve 30 years before

being eligible for parole." N.J.S.A. 2C:11-3(b)(1).

However, if the State proves one of several "triggering

factors," a defendant is eligible for a mandatory sentence of

life imprisonment without parole. N.J.S.A. 2C:11-3(b)(4) sets

forth one such triggering factor: a defendant convicted of

purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2),

becomes eligible for a mandatory sentence of "life imprisonment

without . . . parole" if he, "as an accomplice[,] procured the

commission of the offense by payment or promise of payment of

anything of pecuniary value." Ibid.

In order for defendant to have been eligible for a

mandatory life sentence without parole in this case, the jury

was specifically required to unanimously decide that defendant

knowingly or purposely caused the death of Russo as Marsh's

11 A-3730-10T2
accomplice, and that the State had proven the triggering factor,

i.e., as an accomplice, defendant procured the commission of

Russo's murder with payment, or promise of payment, to Marsh.

Once eligible, a mandatory sentence of life imprisonment

without parole must be imposed "if a jury finds beyond a

reasonable doubt that any of" certain "aggravating factors

exist." Ibid. One aggravating factor is that "[t]he defendant

procured the commission of the murder by payment or promise of

payment of anything of pecuniary value." N.J.S.A. 2C:11-

3(b)(4)(e).3 As one noted commentator has explained:

Like the death penalty it replaced, the
sentence of life imprisonment without parole
requires two separate findings: first, that
the murderer is eligible for the sentence
based on the particular circumstances of the

3
A similar redundancy between the "murder for hire" triggering
factor and aggravating sentencing factor existed in N.J.S.A.
2C:11-3 prior to the 2007 amendments. See former N.J.S.A.
2C:11-3(c) and -3(c)(4)(e). In State v. Ramseur, 106 N.J. 123,
188 (1987), the Court explained:

There is one class of murder in which a
factor defines both death eligibility as
well as selection for the penalty itself.
The defendant who pays another to commit
knowing or purposeful murder and is
therefore death eligible (Sec. c) will,
without proof of any further aggravating
factor (since such payment itself is an
aggravating factor, Sec. c(4)(e)), be
subject to the death penalty if that
aggravating factor outweighs any mitigating
factors.

12 A-3730-10T2
 crime; and, second, that the murder involved
one or more aggravating factors.

[Cannel, New Jersey Criminal Code Annotated,
comment 7 on N.J.S.A. 2C:11-3 (2013).]

The record reflects that in this case the judge reviewed

his charge with the attorneys at length. Defense counsel agreed

not only to the charge, but also to the proposed interrogatories

on the verdict sheet. At the beginning of the instructions, and

before explaining the verdict sheet, the judge explicitly told

the jury that its verdict must be unanimous. The first question

on the verdict sheet asked whether defendant was guilty as an

accomplice to Russo's murder; the second question asked whether

defendant was guilty of "procur[ing] the murder by payment of

money to Frank Marsh." The court again reminded the jury that

its verdict had to be unanimous at the conclusion of the charge.

After the jury announced its unanimous verdict regarding

the first two questions, the judge told the jury to

return . . . to the jury room and consider
again whether the State has proven the
aggravating factor that Raymond Troxell
procured the murder of Vincent Russo by
payment or promise of payment of money to
Frank Marsh.

The court again instructed the jury that its "verdict in this

regard must be unanimous." A special interrogatory was

submitted to the jury, asking whether defendant "procured the

murder of . . . Russo by payment or promise of payment of money

13 A-3730-10T2
to Frank Marsh[.]" The jury returned a unanimous verdict as to

the aggravating sentencing factor.4

4
Because the issue is not squarely before us, we do not decide
whether this second "penalty" phase was required under the
particular facts of this case, i.e., where the triggering factor
and the aggravating sentencing factor were the same. As noted,
the Court in Ramseur, supra, 106 N.J. at 188, implied that in
such circumstances, a guilty verdict as to the "death eligible,"
i.e., triggering, factor would "without proof of any further
aggravating factor (since such payment itself is an aggravating
factor . . .) . . . subject [a defendant to] the death penalty
if that aggravating factor outweighs any mitigating factors."
But later, again considering the same aggravating factor, the
Court held:

[T]rial courts in future capital cases in
which this issue arises should explicitly
inform the penalty-phase jury that . . . the
guilt and sentencing phases are considered
as separate proceedings. Hence, the jury in
the penalty phase should be informed of its
duty to deliberate anew concerning any facts
established by the verdict in the guilt-
phase determination that the State relies on
to prove an aggravating factor, and of its
right to reach a different conclusion
concerning such facts in the penalty phase.

[State v. Marshall, 123 N.J. 1, 139 (1991).]

In State v. Josephs, 174 N.J. 44, 114 (2002), the Court accepted
the argument that the penalty-phase jury "should . . . be[]
given an opportunity to consider anew the evidence" supporting
the aggravating sentencing factor "and to view it from a
different perspective than that of the guilt-phase jury." The
Court explained that, if "[p]roperly instructed[, the] penalty-
phase jury could have concluded that the . . . aggravating
factor should have been accorded less weight in the balancing
process" required to determine whether the defendant was to be
sentenced to death. Ibid.
However, after the 2007 amendments, "the presence or
absence of mitigating factors is not considered at all."
(continued)

14 A-3730-10T2
 Any claim that the jury was not provided adequate

instructions regarding the need for unanimity of its verdicts

regarding defendant's guilt as Marsh's accomplice, the

triggering factor of procuring Russo's murder and the

aggravating sentencing factor is clearly without merit. R.

2:11-3(e)(2).

B.

The more difficult issue is whether the judge was required

to tell the jury it could return a non-unanimous verdict on the

triggering factor. Defendant argues a non-unanimous verdict as

to the triggering factor would have been a valid verdict which

eliminated the possibility of a mandatory life sentence without

parole. Under those circumstances, the judge would have

necessarily been required to sentence defendant in accordance

with N.J.S.A. 2C:11-3(b)(1) and NERA. See Cannel, supra,

comment 7(a) on N.J.S.A. 2C:11-3 ("Where the jury is unable to

agree unanimously as to any one of the four triggers, subsection

b(4) does not apply, and sentencing of the defendant will be

under b(1)."). We now consider the argument.

(continued)
Cannel, supra, comment 7 on N.J.S.A. 2C:11-3. It would appear
that since the jury already found the triggering factor was
proven beyond a reasonable doubt, and without the need any
longer to weigh the very same aggravating sentencing factor
against mitigating factors, a second "penalty" phase was
unnecessary in this case.

15 A-3730-10T2
 Prior Death Penalty Jurisprudence

Prior to the 2007 amendments, a defendant was eligible for

the death penalty if, having been convicted of knowing or

purposeful murder, N.J.S.A. 2C:11-3(a)(1) or (2), the jury

unanimously concluded beyond a reasonable doubt that the State

proved one of certain triggering factors. These included, among

others, that the defendant "committed the homicidal act by his

own conduct; or . . . as an accomplice procured the commission

of the offense by payment or promise of payment of anything of

pecuniary value[.]" Former N.J.S.A. 2C:11-3(c).

If the jury returned a unanimous verdict as to the

triggering factor, "a separate sentencing proceeding" was held

"to determine whether the defendant should be sentenced to

death[.]" Former N.J.S.A. 2C:11-3(c)(1). The State had the

burden of proving at least one statutory aggravating factor

beyond a reasonable doubt. Former N.J.S.A. 2C:11-3(c)(2)(a), -

3(c)(4). The defendant's burden was only to "produc[e]

evidence" as to any statutory mitigating factor. Former

N.J.S.A. 2C:11-3(c)(2)(a), -3(c)(5).

The statute explicitly provided for three possible verdicts

following the sentencing hearing. If the jury were to find that

"any aggravating factors exist and that all the aggravating

factors outweigh[ed] beyond a reasonable doubt all of the

16 A-3730-10T2
mitigating factors," the defendant would be sentenced to death.

Former N.J.S.A. 2C:11-3(c)(3)(a). If the jury found no

aggravating factors existed, or those that existed did "not

outweigh all of the mitigating factors," the defendant's life

would be spared, and he would be sentenced in accordance with

subsection (b) of the statute. Former N.J.S.A. 2C:11-

3(c)(3)(b). Finally, defendant would be sentenced pursuant to

subsection (b) "[i]f the jury [were] unable to reach a unanimous

verdict[.]" Former N.J.S.A. 2C:11-3(c)(3)(c) (emphasis added).

Subsection (b) in turn provided that if the defendant were

found to be death-eligible, "and the jury . . . found the

existence of one or more aggravating factors, but that such

factors did not outweigh the mitigating factors . . . or the

jury was unable to reach a unanimous verdict as to the weight of

the factors, the defendant [was to] be sentenced . . . to a term

of life imprisonment" without parole. Former N.J.S.A. 2C:11-

3(b)(4) (emphasis added). In 1985, the Legislature amended the

statute to provide that, "[p]rior to . . . sentencing

deliberations," the jury would be informed that "a failure to

reach a unanimous verdict [would] result in sentencing by the

court," and also be informed "of the sentences which may be

imposed." L. 1985, c. 178, § 2; former N.J.S.A. 2C:11-3(f).

17 A-3730-10T2
 The jurisprudence regarding proper jury instructions that

arose initially relied exclusively upon the express language of

the statute. Providing a non-unanimity instruction in the

sentencing phase of a death penalty case was first required in

Ramseur. There, citing extensively the language of former

N.J.S.A. 2C:11-3(c)(3)(c), and the then-recently enacted former

N.J.S.A. 2C:11-3(f), the Court held that "juries in capital

cases [must] be informed of, and free to exercise, their

statutory option to return a final, non-unanimous verdict

resulting in imprisonment if, after a reasonable period of

deliberations, they are unable to agree." Ramseur, supra, 106

N.J. at 300-01, 312. Accord State v. Bey (II), 112 N.J. 123,

180 (1988) ("To prevent unacceptable speculation about the

consequences of a non-unanimous verdict, the court must inform

the jury of its option of returning a final, non-unanimous,

verdict that would result in a minimum of thirty years of

imprisonment without parole."); see also State v. Hunt, 115 N.J.

330, 382-83 (1989) ("In a capital case, unlike the ordinary

criminal prosecution, jurors need not reach a unanimous verdict.

Thus, a decision not to agree is a legally acceptable outcome,

which results not in a mistrial, but in a final verdict.")

(emphasis added).

In Bey II, the Court also considered the need for unanimity

18 A-3730-10T2
regarding the finding of aggravating and mitigating sentencing

factors. Firmly tethering its conclusions to the language of

the statute, the Court said:

Although the Act does not expressly require
the jury to be unanimous in finding the
existence of an aggravating factor or
factors, the lack of unanimity suggests that
the factor has not been established beyond a
reasonable doubt as required by [former]
N.J.S.A. 2C:11-3(c)(2)(a). Requiring a
unanimous finding on the existence of an
aggravating factor is consistent with the
general requirement of unanimity in criminal
cases . . . . The unanimity requirement
extends only to verdicts adverse to the
defendant, and the Legislature may provide
for the return of a verdict favorable to the
defendant on less than unanimity. For
example, under the Act, the unanimity
requirement redounds to the benefit of the
defendant by mandating that he or she must
be sentenced to imprisonment rather than
death unless the jury is unanimous on the
imposition of the death penalty.5

[Bey II, supra, 112 N.J. at 159 (citations
to out-of-state authority omitted) (emphasis
added).]

Because the statute only required a defendant to "produc[e]

evidence of the existence of a mitigating factor," former

5
Of course, the statutory provision requiring imposition of a
sentence other than death if the jury could not reach unanimity
was also "favorable" to the defendant because it eliminated "the
customary practice in criminal trials that a hung jury results
in a mistrial, after which the State has the option of
instituting new proceedings against the defendant" and again
seeking the maximum penalty. State v. Brown, 138 N.J. 481, 512-
13 (1994).

19 A-3730-10T2
N.J.S.A. 2C:11-3(c)(2)(a), "jurors need not unanimously find the

existence of a mitigating factor." Id. at 159. As a result,

"[a]ny juror who believes in the existence of a mitigating

factor must be allowed to determine whether he harbors such a

[reasonable] doubt by conducting his or her own weighing

process." Id. at 160. Jury instructions advising jurors they

must unanimously agree as to any mitigating factor were,

therefore, improper and required reversal. Id. at 160-61.

The Court first extended the requirement of a non-unanimity

instruction to the guilt phase of a capital case in Brown.

There, the defendant argued "that the court should have

instructed the jury . . . to decide only whether it unanimously

found beyond a reasonable doubt that [he] had committed the

murders by his own conduct," the death penalty triggering

factor, thereby "informing the jury that a non-unanimous verdict

on that issue was acceptable and would not affect the murder

conviction." Brown, supra, 138 N.J. at 509. The Court decided

that

[a]lthough a jury verdict that a defendant
committed a murder by his own conduct must
be unanimous, unanimity is not required to
support a verdict that a defendant guilty of
murder did not commit the murder by his own
conduct. Rather, the inability of the jury
to reach a unanimous decision on the own-
conduct determination constitutes a final
verdict. . . .

20 A-3730-10T2
 [Id. at 511.]

The Court further explained:

We acknowledge that the death-penalty
statute does not expressly provide for a
non-unanimous option in regard to the own-
conduct determination, although it
specifically authorizes a non-unanimous
verdict with respect to the weighing of
aggravating and mitigating factors.
[Former] N.J.S.A. 2C:11-3(c)(3)(c).
Nevertheless, the considerations underlying
the legislature's express recognition of
non-unanimous verdicts in the penalty phase
to determine whether a defendant receives a
life or death sentence apply with equal
force when a jury that has convicted a
defendant of murder decides whether that
defendant committed the murder by his own
conduct. . . . [W]hen a jury in a capital
case decides whether a defendant committed
the homicide "by his own conduct," its
determination establishes whether that
defendant will be eligible for the death
penalty. Although the consequences of the
own-conduct determination and the penalty-
phase verdict are not identical, the analogy
is compelling. In the context of
determining whether a jury should be
informed of its non-unanimous option, any
distinction is inconsequential.

[Id. at 516-17.]

"[T]he significance of the own-conduct determination in

triggering the penalty phase supports the conclusion that jurors

must be instructed on the nonunanimity option." Id. at 518.

In State v. Mejia, 141 N.J. 475, 486 (1995), the Court

extended this rationale to the then-death-penalty-triggering

factor that the defendant acted with "intent to kill," as

21 A-3730-10T2
opposed to with an intent to cause serious bodily injury that

resulted in death. The Court reasoned, "[l]ike the 'by your own

conduct' requirement, the 'intent to kill' requirement is not an

element of the offense of murder [but is] merely a triggering

device for the death-penalty phase of the trial." Ibid.

(citations and internal quotation marks omitted) (alteration in

original). Therefore, it was reversible error for the judge to

have failed to "inform the jurors they ha[d] an option to return

a non-unanimous, or reasonably-doubtful, finding on the

distinction between the intent to kill and to cause serious

bodily injury." Id. at 487.6

As a result, the model jury charges used in death penalty

prosecutions included a non-unanimity instruction regarding the

finding of a triggering event. For example, in a murder-for-

hire death penalty prosecution, judges were required to give the

following instruction:

Before you may conclude that defendant
procured the murder as an accomplice by
payment or promise of payment to another,
you must be unanimously convinced of that

6
In State v. Gerald, 113 N.J. 40, 89 (1988), the Court concluded
that under the New Jersey Constitution it was cruel and unusual
punishment to impose the death penalty when the actor's intent
was only to cause serious bodily injury. The constitutional
amendment that overturned Gerald had not taken effect when the
events in Mejia occurred. State v. Cooper, 151 N.J. 326, 362
(1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 154 L. Ed.
2d 681 (2000).

22 A-3730-10T2
 beyond a reasonable doubt. If you have a
reasonable doubt on this issue or if you are
unable to reach a unanimous decision beyond
a reasonable doubt as to whether defendant
was an accomplice who brought the murder
about by payment or promise of payment to
another as distinguished from a mere
accomplice, that is a permissible final
verdict on this issue that would result in
the imposition of a non-capital sentence for
murder. . . .

[Judges Bench Manual for Capital Causes,
"Supplemental Charge on Accomplice Who Hired
Another (To Resolve the 'Trigger' Issue
Where Own Conduct Not in the Case," (Jan. 1,
2005) (emphasis added).]

The 2007 Amendments

In January 2006, the Legislature established the New Jersey

Death Penalty Study Commission (the Commission). See L. 2005,

c. 321 (effective January 12, 2006). The Commission was charged

with "study[ing] all aspects of the death penalty as currently

administered in the State of New Jersey[,] . . . propose new

legislation, if appropriate[, and] report its findings and

recommendations to the Governor and the Legislature, along with

any legislation it desires to recommend for adoption by the

Legislature[.]" Id. at §§ 2(b), 2(c), and 2(k).

In its final report, the Commission "recommend[ed] that the

death penalty in New Jersey be abolished and replaced with life

imprisonment without the possibility of parole[.]" New Jersey

Death Penalty Study Commission Report (Jan. 2, 2007) at 2. One

23 A-3730-10T2
of the Commission's specific findings was that "[t]he

alternative of life imprisonment . . . without the possibility

of parole would sufficiently ensure public safety and address

other legitimate social and penological interests . . . ." Id.

at 56. In support of this finding, the Commission noted:

"[r]eplacing the death penalty with life without parole would be

a certain punishment, not subject to the lengthy delays of

capital cases; it would incapacitate the offenders; and it would

provide finality for victims' families." Id. at 61.

The Commission's report included recommended legislation.

Id. at 68-77. On December 17, 2007, the Legislature approved L.

2007, c. 204, a bill that was "substantially similar to the bill

proposed by the . . . Commission . . . ." Senate Judiciary

Comm. Statement, supra.

Changes made by the 2007 amendments were sweeping and

exceeded mere elimination of the death penalty as a possible

sentence. Now, once a triggering factor is found, "a defendant

will receive a sentence of life without parole if the State

demonstrates beyond a reasonable doubt that one or more of the

statutory aggravating factors is present. The amended statute

does not permit the defendant to present mitigating factors."

State v. Fortin, 198 N.J. 619, 624 (2008) (citation omitted).

The Legislature also eliminated the requirement that the jury be

24 A-3730-10T2
told of the possible sentences that may be imposed. Compare

N.J.S.A. 2C:11-3 with former N.J.S.A. 2C:11-3(f). Most

important to the issue we face, the 2007 amendments completely

eliminated any statutory reference to the option of a non-

unanimous verdict at any stage of the prosecution.

C.

We conclude that in this case the judge was not required to

provide a non-unanimity instruction regarding the triggering

factor that made defendant eligible for a mandatory life

sentence without parole. We reach this decision for several

reasons.

We presume that prior to passage of the 2007 amendments,

the Legislature was fully aware of not only its prior enactments

but also precedent that evolved under the death penalty statute.

See e.g., State v. Greeley, 178 N.J. 38, 46 (2003) ("When

ascertaining legislative intent, we can infer that the

Legislature was 'familiar with its own enactments, with judicial

declarations relating to them, and . . . passed or preserved

cognate laws with the intention that they be construed to serve

a useful and consistent purpose.'") (quoting State v. Federanko,

26 N.J. 119, 129 (1958)). See also Josephs, supra, 174 N.J. at

139-40 (discussing the Legislature's familiarity with and

response to the Court's death penalty jurisprudence).

25 A-3730-10T2
 Our recognition of the Legislature's familiarity with the

topic is only strengthened by its initial decision to form the

Commission to study the issue and make recommendations. The

Commission's recommendations eliminated any statutory references

to the validity of non-unanimous verdicts, and the Legislature

ultimately adopted, in essence, the Commission's

recommendations.

In addition, the entire line of cases that first adopted

the requirement of a non-unanimity instruction in the sentencing

phase of death penalty cases, and extended that to the guilt

phase determination as to a triggering factor, had its genesis

in statutory language that has since been repealed. The Brown

Court, which first extended the requirement for the charge to

the guilt phase, did so only because it found a "compelling"

"analogy" between "the consequences" of a jury's decision on a

triggering factor "and the penalty-phase verdict[.]" Brown,

supra, 138 N.J. at 517-518. Of course, when Brown was decided,

the "consequences" of the penalty phase reflected a choice

between life and death; the Legislature has now eliminated one

of those possible consequences.

Furthermore, it is clear that the Court never grounded its

requirement for a non-unanimity instruction in the guilt phase

of a capital prosecution upon the State Constitution. Nor could

26 A-3730-10T2
it have relied upon the federal constitution, because the United

States Supreme Court has expressly rejected the claim that a

non-unanimity instruction is required in capital sentencing

proceedings. Jones v. United States, 527 U.S. 373, 379-84, 119

S. Ct. 2090, 2097-2100, 144 L. Ed. 2d 370, 381-84 (1999).

Indeed, the Jones Court specifically disapproved of New Jersey's

requirement "that the jury be informed of the sentencing

consequences of nonunanimity." Id. at 383, 119 S. Ct. at 2099,

144 L. Ed. 2d at 383 (citing Ramseur, supra, 106 N.J. at 304-

315).

Our decision is further supported by the Court's frequent

recognition that death was a sentence qualitatively different

from all others. See, e.g., Bey II, supra, 112 N.J. at 101

(referring to the death penalty as "'a punishment different from

all other sanctions in kind rather than degree'") (quoting

Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S.Ct. 2978,

2991, 49 L. Ed. 2d 944, 961 (1976)). As a result, the Court has

described its "capital jurisprudence [as] stressing the

importance of providing a jury with every opportunity to spare a

defendant's life." Cooper, supra, 151 N.J. at 362.

In Cooper, the defendant argued that Brown and Meija

compelled a non-unanimity instruction permitting the jury to

return a non-unanimous verdict as between felony murder, to

27 A-3730-10T2
which the death-penalty did not apply, and knowing and

purposeful murder, to which it did. Id. at 357. The Court

rejected the argument, noting that "[t]hose cases have been

restricted to capital murder," and "decline[d] to extend that

jurisprudence to noncapital murder." Id. at 362. "The

fundamental difference in nature between a sentence of death and

a sentence of life without parole suggests that, where the

jurisprudence differs between death penalty cases and subsection

b(4) cases, it will be to remove protections put in place by the

courts in favor of defendants that were applicable in death

penalty cases only." Cannel, supra, comment 7 on N.J.S.A.

2C:11-3 (2013).

Lastly, defendant has not cited us to and our independent

research fails to reveal that any state has taken the path

defendant urges. Within the past 100 years, thirteen other

states and the District of Columbia have repealed their

respective death penalty provisions. Some of them previously

had rejected the non-unanimity instruction in capital cases, and

none of them has yet required such an instruction in non-capital

cases.

For all these reasons, we are firmly convinced that a jury

need not be instructed that it may return a non-unanimous

28 A-3730-10T2
verdict on any triggering factor under the current statutory

scheme for murder in New Jersey.7

Affirmed.

7
Defendant has not argued that a non-unanimity instruction was
required when the jury was considering the aggravating
sentencing factor. We do not, therefore, address that issue
except to note that much of the rationale for our decision would
apply equally if such an argument had been raised.

29 A-3730-10T2