dissenting.
During the sentencing phase of this 1983 capital prosecution, the State introduced as an aggravating factor pursuant to N.J.S.A. 2C:ll-3c(4)(a) a prior murder conviction dating from 1959. Errors unrelated to this evidence led to the reversal of the death penalty. State v. Biegenwald, 106 N.J. 13 (1987) (Biegenwald (II)). The State is proceeding with a resentencing trial, in which it again seeks the death penalty. In support of aggravating factor c(4)(a), it has attempted to introduce, in addition to the 1959 conviction, a 1984 conviction of defendant for the murder of William Ward. The Ward conviction did not *544become final until May 1987, after defendant was already sentenced to death and after his sentence had been vacated, but before the resentencing trial could be scheduled. The trial court rejected this evidence for resentencing purposes, prompting the State to take this interlocutory appeal. The appeal raises the issue of whether the State may introduce, as evidence supporting aggravating factor c(4)(a), a murder conviction that became final only after the death sentence now being retried was imposed. The Court reverses the trial court’s ruling, and holds that this subsequent murder conviction is permissible evidence of aggravating factor c(4)(a).
As originally enacted in 1982, section c(4)(a) allowed the State in a death sentencing trial to introduce as evidence of an aggravating factor that the defendant “has previously been convicted of murder.” This language was amended in 1985, however, to allow the State to introduce evidence that the defendant was convicted, “at any time,” of another murder. A. 1985, c. 178. The Court now reads the language of the original enactment to allow the use of the 1984 conviction at sentencing. I disagree. In my view, a fair reading of the language of the original enactment precludes the use of the 1984 conviction as evidence of a murder conviction “previous” to the 1983 murder conviction. Furthermore, the express intent of the Legislature that the amended version of c(4)(a) be applied prospectively should foreclose the use of the 1984 conviction at resentencing as a conviction obtained “at any time.” Most important, I believe that the Court’s ruling in this case runs contrary to principles of fundamental fairness that should preclude the use of the 1984 conviction in these circumstances. Accordingly, I dissent.
I.
The threshold question on this appeal is which version of c(4)(a) applies: the original enactment, which contemplated murders of which the defendant had been convicted “previous*545ly”; or the 1985 amendment, which contemplates murder convictions obtained “at any time.” The majority accepts the argument that given the prospective nature of the 1985 amendment, the statute applies as originally enacted; the majority proceeds, however, to read “previously” to mean “previously” to a sentencing hearing scheduled “at any time.”
In doing so, the majority relies on the decisions of this Court in State v. Bey, 96 N.J. 625 (1984), and in State v. Biegenwald, 96 N.J. 630 (1984) {Biegenwald (I)). In those companion cases, this Court rejected the argument advanced by defendants that “previously” as used in c(4)(a) before its amendment meant a conviction that occurred prior to the commission of the offense for which the defendant is then being tried. The Court held instead
that the status of the prior conviction at the time of its intended use—the penalty phase of the subsequent murder prosecution—is determinative. The relevance of such a conviction ... inheres in the fact that the conviction has occurred prior to the jury’s consideration of the appropriate penalty to be imposed. [Bey, supra, 96 N.J. at 629.]
The Court concludes, in this case, that this passage from Bey compels its conclusion that “previously” means “previous” to any resentencing.1
I reject the Court’s reasoning. Its result does not follow ineluctably from Bey and Biegenwald (I); those cases considered whether, as between the commission of the crime and *546the initial penalty phase following conviction for it, the “previously been convicted” language more likely referred to the former or the latter. The context of another, subsequent penalty proceeding simply was not before the Court or within its contemplation; viewed in context, it is equally logical to conclude that “previously been convicted,” as construed in Bey and Biegenwald (I), meant prior to the initial penalty phase, not, as the majority would have it, prior to any resentencing proceeding. Given the ambiguity of the language of the provision as enacted, and the differing context in which Bey and Biegenwald (I) were decided, I believe that “previously been convicted” should be construed to mean prior to the initial penalty phase.
In addition to adhering more closely to the context of the cases, such a reading of this Court’s Bey and Biegenwald (I) precedents would be consistent with this Court’s decision, from the inception of the capital punishment statute, to opt for the most punctilious construction of ambiguous statutory provisions where those provisions relate to the State’s decision to take life. Thus, we have ruled that the ambiguous language of aggravating factor of c(4)(c) must be narrowly construed to encompass only particular kinds of conduct. State v. Ramseur, 106 N.J. 123, 197-211 (1987). We have held that the prior conviction aggravating factor of c(4)(a), as originally enacted, became final only on the completion of the appellate process. See State v. Bey, supra, 96 N.J. 625; Biegenwald (I), supra, 96 N.J. 630. Ambiguity was resolved in favor of heightened protection when we interpreted the statute as prescribing a non-unanimous determination as a possible verdict. State v. Ramseur, supra, 106 N.J. at 300-01. Indeed, we have gone so far as to determine, in the face of seemingly contrary language, that a defendant cannot be sentenced to death unless aggravating factors outweigh mitigating factors beyond a reasonable doubt. State v. Biegenwald (II), supra, 106 N.J. at 65-67. See also State v. Koedatich, 98 N.J. 553 (1984) (construing the direct appeal that is provided by the statute as a mandatory *547appeal); State v. McCrary, 97 N.J. 132 (1984) (implying a statutory duty on the State to notify a defendant of its reliance on particular aggravating factors with the opportunity for the defendant to challenge that showing); State v. Davis, 96 N.J. 611 (1984) (establishing a liberal standard for admissibility of evidence of mitigating factors while conventional rules of evidence remained applicable to aggravating factors).
I am not dissuaded from this interpretation by the Legislature’s policy statement accompanying S.950, which became the amendment of e(4)(a). The preamble to both the Senate and the Assembly versions of S.950 stated: “In enacting the amendments contained in this bill, the intent of the Legislature is to effect only prospective changes. The amendments are not intended to apply retrospectively or to affect cases now on appeal.” Because the amendment was enacted subsequent to the 1984 Ward conviction, and this case was “on appeal,” it is hard to escape the conclusion that its terms were not intended to be applicable to this case.
Furthermore, with respect to the use of new language, “at any time,” in lieu of “previously,” to define “convictions,” the 1985 amendment reflects, if anything, not a clarification, as the majority insists, but a change in the policy of the original enactment and this Court’s decisions in Bey and Biegenwald (I). It strains credulity to insist that the change from “previously been convicted” to “convicted at any time” represents a mere clarification, and not a substantive change; the plain meaning of the words belies any such suggestion. Indeed, the legislative statements are silent with respect to the proper construction of “at any time.” It is thus plausible to conclude that this language was intended to be a simple ratification of this Court’s holding in Bey, that the prior conviction need not have been entered prior to the commission of the death-eligible murder. The conclusion, therefore, that the policy change reflected in the amendment to c(4)(a) applies in construing the meaning of the original enactment, and means that under the *548provisions as first enacted the prior conviction need not have been entered prior to the original sentence for the death-eligible murder, simply has no foundation in the language or history of the enactment. Principles interpretation of the capital murder-death penalty statute reasonably requires that the Legislature’s provisions be narrowly construed when such provisions are ambiguous. In the absence of a clear statutory prescription, this Court is obliged, in my opinion, to resolve reasonable doubt in favor of the accused.2
In sum, I believe that fundamental fairness should preclude the State from using the Ward conviction as a “prior conviction” at the resentencing for the Olesiewicz murder. While such a construction is within the literal comprehension of this Court’s decision in Bey, it was almost certainly not considered in Bey and would have the effect proscribed by this Court’s *549fundamental fairness decisions.3
II.
A further issue warrants discussion. I agree that the prohibition of seeking on resentencing an aggravating factor not found at the first sentencing is not compelled by the federal constitution where the defendant was sentenced to death, Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986); Knapp v. Cardwell, 667 F.2d 1253, 1264-65 (9th Cir.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982); cf. Singleton v. Lockhart, 653 F.Supp. 1114, 1143 (E.D.Ark.1986) (where jury’s reliance on sole aggravating circumstance was invalidated, state could not seek the death penalty despite possibility that evidence would support an aggravating factor not found or sought, at first sentencing). Nevertheless, principles of fundamental fairness, if not state constitutional doctrine, call for this result. In my opinion, even though the jury’s failure to find an aggravating factor does not constitute an “acquittal” for double jeopardy purposes, it would be fundamentally unfair to allow the state a potentially new theory on which to gain a death sentence each time an appeal is successful.
*550I agree with the majority’s analysis that the aggravating factors other than c(4)(a) relate primarily to the circumstances of the offense; I disagree, however, with the majority’s assessment of the consequences of that fact. In my opinion, because the factors other than c(4)(a) relate to the circumstances of the offense, all of which should have been known to the State at the initial penalty hearing, the logic of such cases as State v. Gregory, 66 N.J. 510 (1975), and State v. Godfrey, supra, 139 N.J.Super. at 140, should preclude the State from introducing new aggravating factors relating to the circumstances of the case. The issue should not, in my opinion, be left to the discretion of trial courts.
I emphasize, however, that my disagreement with the majority is a narrow one. Thus, I endorse the majority’s conclusion that the State should be generally precluded from introducing new aggravating factors at resentencing, disagreeing only with the majority’s unwillingness to follow the logic of this decision and preclude the use of any such new aggravating factors. Further, I acknowledge that the future application of aggravating factor c(4)(a), as amended, can allow the introduction of murder convictions entered “at any time”—even those entered after an original death sentence and before a resentence. As recognized by the majority, ante at 538, unlike the other aggravating factors, which relate to the circumstances of the crime and the facts of which are available to the State, factor c(4)(a) relates to the character of the accused and is, as a result, less analogous to the Court’s fundamental fairness cases. In the absence of constitutional compulsion, I agree that the legislature’s expressed intent to allow the use of such convictions prospectively against serial murderers has a basis in reason.
III.
In sum, I believe that the language of factor e(4)(a) applicable on resentencing is the language as originally enacted, which must be construed in these circumstances to preclude the use *551under c(4)(a) of a conviction obtained a year after the initial penalty phase and not made final until four years after the initial penalty phase. To hold otherwise is to stray from this Court’s well-established principle that it will interpret ambiguous provisions within the capital murder statute narrowly as a reflection of its commitment to fundamental fairness.
Justice O’HERN concurring in the result.
For reversal—Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN—6.
For affirmance—Justice HANDLER—1.
The Court finds additional support for its interpretation from cases of other states that have allowed the use, on remand, of a conviction gained after the death sentence that is being retried was imposed. Ante at 530-531. See, e.g., Richmond v. Ricketts, 640 F.Supp. 767 (D.Ariz.1986); State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (Ariz.), cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983); State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (Ariz.), cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); Oats v. State, 446 So.2d 90, 94-95 (Fla.1984); State v. Teague, 680 S.W.2d 785, 789-90 (Tenn. 1984). As in most contexts involving capital statutes, however, the extent to which the holdings of other states are transferable is problematic. Different standards and degrees of protection—both statutory and judicial—exist from state to state, dispelling the authoritative value of one state’s rule for another state.
I disagree with the majority’s result for a second reason. This Court held, in Bey and in Biegenwald (I), supra, 96 N.J. at 637, , that a murder conviction was not considered "final" until no direct appeals were pending, and thus that a conviction whose appeals were pending could not be used to satisfy c(4)(a). Under this interpretation of c(4)(a), which the majority is using, the State could not have used this conviction to satisfy c(4)(a) for the 1983 conviction at any time prior to May 28, 1987, when it became final. Only because this Court did not resolve defendant’s appeal of his death sentence until shortly before the Ward conviction became final, and only because resentencing could not be scheduled before the Ward conviction became final, is this conviction available now to the State.
The Court's allowance of the use of the Ward conviction in these circumstances runs directly counter to this Court’s fundamental fairness jurisprudence, which has consistently foreclosed the State from benefiting—to the defendant’s detriment—from accidents of procedure that might otherwise operate to expose defendants to further or more harsh prosecution. See State v. Biegenwald (II), supra, 106 N.J. at 62 (defendants sentenced to death before the capital punishment act was amended to require proof beyond a reasonable doubt at sentencing must be resentenced, as a matter of fundamental fairness, under this more difficult standard of proof); State v. Godfrey, 139 N.J.Super. 135, 140 (App.Div.) (fact that State, with knowledge of facts, prosecuted under one statute and not another for which defendant could be prosecuted, bars re-prosecution under second statute as a matter of fundamental fairness), certif. denied, 73 N.J. 40 (1976).
I appreciate that the majority does not rest its holding on the applicability of the current amendment of c(4)(a), or on the inapplicability of constitutional ex post facto principles. This is entirely reasonable, because the 1985 amendment was made entirely prospective. See discussion supra at 528. Nevertheless, in light of the majority's use of the statute as amended to elucidate the statute as enacted, it is appropriate to emphasize that the spirit that animates ex post facto principles should strongly predispose the Court against the application of the current amended statute to the anticipated resentencing in this case. See State v. Correll, 148 Ariz. 468, 715 P.2d 721, 734 (1986) (application of amendment to capital statute providing that "defendant has been convicted of one or more homicides ... which were committed during the commission of the offense" held to violate ex post facto clause where amendment passed after commission of crime); State v. Jordan, 440 So2d 716, 719 (La.1983) (forbidding use of prior convictions as an aggravating circumstance because amendment sanctioning use of such evidence constituted substantive change in law and was enacted subsequent to commission of murder). The majority’s reading of the original provision expands the reach of the provision and achieves a result identical to the result that would obtain if thestatute were applied as amended, a result that, in my opinion, would violate ex nost tarto nrinrinles.