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I. Defendant Steven Fortin was convicted by a jury of capital murder and sentenced to death for the murder of 25-year-old Melissa Padilla, who resided at the Gem Motel in Woodbridge with her four young children, ages 2 through 5, and her boyfriend, Hector Fernandez. Her body was discovered 500 feet from the motel inside one of four concrete 30-inch pipes. Blood spattering evidence indicated that the assault had taken place inside the construction pipe. An autopsy revealed that Padilla had suffered numerous injuries, including a broken nose and bruises to her face and chest; lacerations to her chin and left breast that were possibly bite marks; and lacerations to the anus inflicted shortly before death that were consistent with forceful penetration by an object, possibly a finger or penis. Padilla suffered no observable injuries to her vagina. The evidence and absence of evidence — the presence of “few and scattered spermatozoa” in the vagina and no semen found on the body — suggested that Padilla was not vaginally assaulted. A fracture in Padilla’s hyoid bone, hemorrhaging of her epiglottis (the upper portion of the windpipe), and abrasions to her neck revealed that she had been manually strangled. The medical examiner concluded that Padilla died from asphyxiation and that her anal injuries were the result of a sexual assault at or near the time of her death. On August 11, 1994, the day of the murder, Fortin lived with Dawn Archer, his former girlfriend, in the Douglas Motel located on Route 1, north of the Quick Chek, in Woodbridge. Fortin and Archer moved out of the Douglas Motel and became itinerant travelers, mostly staying with friends. Eventually, they went to Maine to stay with Fortin’s parents. During a trip to visit Archer’s father in Massachusetts, Fortin struck Archer and the two parted for good. At the time of the investigation of the Padilla murder, the police had not gathered those facts and they had few leads to go on. In April 1995, the Maine State Police communicated with the Woodbridge police department about Fortin, who had been arrested for sexually assaulting Maine State Trooper Vicki Gardner. Fortin’s savage assault on Trooper Gardner became the centerpiece of the state’s case. The state would argue that the unique similarities between the sexual assaults against Gardner and Padilla led to only one conclusion: that the same man committed both crimes. On the evening of April 3, 1995, Trooper Gardner was driving in a marked patrol car on Interstate Highway 95 in Maine, returning home from a visit to her parents. She was off-duty and not in uniform. Around 8:30 p.m., Gardner encountered Fortin in a car parked on the shoulder of Interstate 95, facing in the opposite direction of traffic. She stopped to investigate. After detecting the smell of alcohol, Trooper Gardner asked Fortin to step from his car and to take a seat in the front passenger side of her patrol car. Walking slightly off-balance, Fortin entered the patrol car, where the trooper administered field sobriety tests. As a result of the tests, the trooper concluded that Fortin was legally intoxicated and decided to issue him several summonses, including one for driving under the influence. While Trooper Gardner was waiting for back-up assistance, Fortin grabbed her around the neck and slammed her head against the doorpost, knocking her unconscious. When Gardner awoke, Fortin was strangling her. She struggled to fight him off, but again lost consciousness. When she regained consciousness, Gardner found herself lying across the front seat of the car with her head against the passenger door, naked from the waist down with her shirt pulled up and her breasts exposed. Her face was severely bloodied and bruised, and her nose was broken. An examination found significant vaginal and anal injuries. The anal injuries were consistent with penetrating trauma from fingers or a fist. One detail of Fortin’s assault on the trooper caught the attention of the Woodbridge police: Fortin had bitten Gardner on the breast during the assault. Two Woodbridge detectives traveled to Maine to interview Fortin. Fortin waived his Miranda rights and stated, “If the evidence shows that I did it, it would probably be the reason and I must have been involved.” He stated that he had no recollection. The physical evidence gathered did not rule in or out Fortin’s involvement in the murder. The spermatozoa recovered from Padilla’s vagina could not be interpreted reliably because of insufficient DNA for the necessary controls in the testing procedures; the uncertified results, too, were inconclusive. Dr. Lowell Levine, the state’s forensic expert in odontology, compared photographs of the marks on Padilla’s chin and breast to molds of Fortin’s teeth. Levine concluded to a “high degree of probability” that Fortin made the bite marks found on Padilla’s chest. Levine, however, conjectured that Fortin “could have” been responsible for the bite mark on Padilla’s chin. Dr. Norman Sperber, the defense’s forensic odontologist, stated that bite-mark comparison is an imprecise science, far less reliable than DNA analysis and identification through dental records. Sperber opined that the injuries to Padilla’s breast and chin probably were not bite marks and, if they were, they could not be attributed to Fortin. The state introduced Robert R. Hazelwood, a retired FBI agent and expert in violent sexual crimes, to catalogue the similarities between the crimes committed against Trooper Gardner and Padilla. The purpose of Hazelwood’s testimony was to show that the manner in which the two crimes were committed was so unique that only one person committed both crimes. That Fortin had sexually assaulted Trooper Gardner was not disputed. State v. Fortin, 162 N.J. 517, 523-24 (2000) ( Fortin I), concluded that Hazelwood’s analysis was not sufficiently reliable to be admitted as expert testimony. The Court concluded that Hazelwood could testify as “an expert in criminal investigative techniques,” but could not “testify on the ultimate issue of whether the person that assaulted Trooper Gardner [was] the same person that murdered Melissa Padilla.” Id. at 528-29. II. Defendant did not contest that he had committed the savage sexual assault on Trooper Gardner in Maine. With defendant clearly identified as the perpetrator of that brutal crime, the state’s central theory was that whoever attacked Trooper Gardner also attacked Padilla because the distinctive characteristics of the sexual assaults against Gardner and Padilla were so “bizarre” and “unique” as to constitute the signature of a single individual. Fortin I recognized that the N.J.R.E. 404(b) “other-crime” evidence (the depraved attack on Trooper Gardner) had the clear capacity to inflame the passions of the jury and cause irreparable prejudice if not used for the limited purpose of establishing identity. In that regard, the Court proposed a limiting instruction to be given to the guilt-phase jury to ensure the proper use of that evidence. The trial court considered evidence of the assault on Gardner so potentially prejudicial that it bifurcated the penalty phase (at which that evidence was not admissible) from the guilt phase. Even a limiting instruction was not considered an adequate safeguard to protect penalty-phase jurors from the taint of such powerful and irrelevant evidence. The trial court turned aside defendant’s repeated requests that the court advise the juror panelists that they would hear evidence of a sexual assault committed by defendant against a Maine State Trooper, and that it instruct them on the consideration to be given to that evidence. Defendant contends that the trial court’s failure to ask prospective jurors whether that evidence would impair their ability to remain fair and impartial and abide by the court’s instruction on the limited use to be given to that evidence denied him the opportunity to “intelligently exercise” his for-cause and peremptory challenges. A. The trial court stated that its interpretation of State v. Manley, 54 N.J. 259 (1969), led it to foreclose any disclosure of defendant’s sexual assault on Trooper Gardner. The court focused on Manley’s call for “an expedient selection of a fair and impartial jury,” and its disapproval of the improper use of voir dire to give a favorable spin to a party’s preferred view of legal principles and the facts. Id. at 280. In all, the trial court questioned 154 potential jurors. The court removed many jurors for cause, including 27 who had ties to law enforcement, and 22 who admitted that they could not be impartial after hearing the nature of the charges in the Padilla case. Of the 18 jurors with law enforcement connections not disqualified by the court for cause, the defense removed 10, and the state two, by peremptory challenges. Thus, six individuals with law enforcement ties became sworn jurors, and five of those six became deliberating jurors. After the jury was sworn and impaneled, the prosecutor gave his opening remarks, in which he predictably and properly discoursed on the Maine crime and its relationship to the state’s other proofs. The prosecutor described both Padilla’s murder and defendant’s attack on Trooper Gardner in Maine. After the state’s opening, the court gave a limiting instruction to the effect that the Maine evidence could only be considered in determining the identity of Padilla’s killer, and that it could not be considered as evidence that defendant was “a bad person, with a propensity for committing bad acts.” The late timing of the disclosure and the limiting instruction, however, already had denied the court and the parties the opportunity to learn whether the 16 sworn jurors would have answered any of the voir dire questions differently had they known that they were to receive evidence of defendant’s sexual assault on Trooper Gardner. B. The other-crime evidence was not only the most critical component of the state’s case, but the evidence most likely to inflame a jury and render it incapable of reasoned analysis. It may very well be that some jurors, given the shocking nature of the attack on Trooper Gardner, would have been incapable of honoring the court’s limiting instruction and would have presumed guilt based on that crime alone. That concern was more than a theoretical possibility. Two prospective jurors who read accounts of defendant’s crime in Maine confided to the trial court that they would be incapable of rendering a fair verdict. Manley does not support the trial court’s categorical rejection of inquiry into the jurors’ ability to remain fair and impartial and to follow the court’s limiting instructions in light of the evidence of defendant’s sexual assault of Trooper Gardner. Unlike Manley, in this case, the introduction at trial of that other crime was not a possibility, but a certainty. Indeed, the other-crime evidence was central to the state’s case. The success of the prosecution hinged on whether the similarities between the attack on Trooper Gardner and the attack on Padilla established the identity of Padilla’s killer. Although the Court does not approve of all of the language in defendant’s proposed voir dire instruction (e.g., “I’m going to ask all of you individually what your reaction was to the evidence and the instructions”), the purpose of the requested inquiry was to ferret out juror bias. Defendant’s proposed voir dire was the antithesis of the “hypothetical question” the Court intended to foreclose in Manley. There was nothing contingent about the admissibility of the other-crime evidence, and nothing conjectural about its power to evoke a visceral and emotional response from jurors. The trial court’s refusal to make any inquiry, much less a searching one, of the other-crime evidence is similar to the constitutionally flawed process condemned in State v. Biegenwald, 126 N.J. 1, 33 (1991) ( Biegenwald IV). In that case, the trial court precluded questioning of prospective penalty jurors concerning the defendant’s prior murder convictions that the state introduced as an aggravating factor in support of a sentence of death. Prospective jurors have varying thresholds for processing and reacting to evidence. Most prospective jurors, even when confronted with shocking evidence related to a brutal crime, presumably will be able to follow the court’s instructions and render a fair and impartial verdict. Some jurors, however, will be so disturbed or repulsed by the gruesome details of a crime that they will lose their ability to be objective and will be incapable of dispassionate consideration of the evidence. For the most part, those jurors will be honest and forthcoming in response to direct questions by the court. Courts must not be fearful of asking those questions out of concern that jury selection will be protracted. The disclosures by the two jurors who read accounts of defendant’s crime in Maine and who freely admitted their inability to remain impartial based on that information should have suggested to the trial court that, given the explosive nature of the 404(b) evidence, not all jurors would be capable of following the limiting instructions on the use of that evidence. The court and the parties needed to know whether the jurors could resist the temptation to consider the heinous assault on Trooper Gardner as proof of propensity to commit a crime, rather than solely as proof of the identity of Padilla’s killer. That was reason enough to permit the voir dire on the subject, given the number of jurors who were excused for cause because they could not remain impartial based on the nature of the crimes committed against Padilla. But here, the potential prejudice was compounded incalculably by the fact that the other-crime evidence was that defendant savagely, sexually assaulted a law enforcement officer. Six jurors who sat on the case, five of whom became deliberating jurors, had ties to law enforcement personnel, but were never asked whether, in light of those relationships, they could remain fair and impartial and follow the limiting instructions for the use of the other-crime evidence. The absence of any voir dire on that subject deprived the trial court of the opportunity to strike for cause, and defendant of the opportunity to challenge peremptorily those jurors with law enforcement connections who may have revealed latent biases had they known the nature of the other-crime evidence to be introduced at trial. C. Held: The trial court improperly limited the scope of voir dire. The court denied defendant his right to a fair trial by depriving him of the opportunity to discover which jurors would be unwilling or unable to remain impartial and follow the court’s limiting instructions after hearing the highly inflammatory evidence about defendant’s crime against Trooper Gardner. Defendant’s convictions are vacated and the matter remanded for a new trial. III. Relying on Fortin I, defendant contends that Hazelwood never produced a database of cases from which he made his comparisons and derived his conclusions, as ordered by the Court as a precondition to his testimony. Accordingly, defendant argues that the trial court should not have permitted Hazelwood to testify in light of his failure to comply with this Court’s discovery order. Without the database, defendant concludes that he was denied, in essence, his constitutional right to confront Hazelwood on the terms required by this Court and, therefore, his right to a fair trial. The Court clearly set the production of a reliable database as an essential qualifier to Hazelwood’s testimony. The approach outlined by the Fortin I Court would ensure that his crime-scene comparison techniques would be subject to verification, allowing the defense a fair opportunity to test his methods and credibility in the crucible of cross-examination. The issue now to be resolved is whether Hazelwood provided to the defense the database that was contemplated in Fortin I. After the decision in Fortin I, the defense requested a “comprehensive listing” of the 4,000 cases referred to in Hazelwood’s motion testimony, including the names of the cases, their locations, copies of police reports, the evidence reviewed by Hazelwood, and copies of his interviews. The defense also requested a listing of the crime scenes Hazelwood had visited and any database he had relied on in formulating his opinion on the unique characteristics between the Gardner and Padilla crimes. Hazelwood responded, through the prosecutor, that he neither had a list of the files of those cases that he had investigated during his years in law enforcement, nor access to them, and that “[n]o database, evidence or scientific studies were reviewed in forming [his] opinion.” He professed to have “relied upon [his] experience, education and training in arriving at [his] opinion.” Defendant responded by moving for either the production of the database or the preclusion of Hazelwood’s testimony. At a hearing addressing the defense’s discovery request, the trial court expressed the view that it was “entirely reasonable” that Hazelwood did not have a list of cases, just as any lawyer “would be hard pressed to go back” and provide a list of cases in which he had been counsel from the beginning of his career. The trial court emphasized that defense counsel could cross-examine Hazelwood about the number of cases he had reviewed that involved strangulation and bite marks. In his trial testimony, Hazelwood identified 17 similarities in the modus operandi and five ritualistic behaviors similar between the Gardner and Padilla crimes. The state’s argument that Hazelwood provided a “reliable database” to support his opinion by reference to his expert report, his curriculum vitae, his publications, and his pretrial testimony, all of which were known to the Court at the time of Fortin I, cannot be accepted. Had any of those items qualified as the “reliable database,” this Court undoubtedly would have said so. Surely, Hazelwood, an author of five books and scores of articles, a university adjunct faculty member, a frequent lecturer, a former FBI agent, and former member of the FBI Behavioral Science Unit, could have compiled some manner of database of cases on which he had based his conclusions. Hazelwood’s reference to his experience, training and education was not a substitute for a “database of cases,” and the failure to provide such case information did not only go to the weight to be given to his opinion, rather than its admissibility. Although Hazelwood’s uniqueness analysis may not sound strictly in scientific method, there are enough common elements to invoke the principles and, therefore, the protections of State v. Kelly, 97 N.J. 178 (1984). The Rules of Evidence, contrary to the state’s assertions, do provide the basis for the production of a database before an expert testifies. N.J.R.E. 705 states, “The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” Hazelwood’s database should have consisted of violent sexual assault cases that he had investigated, studied or analyzed during his professional career, and the peculiar modus operandi and ritualistic characteristics of those crimes. Such a database would have provided some basis for verifying the frequency of sexual assaults in which perpetrators bite the faces or breasts of their victims, or manually strangle them, or engage in high-risk attacks, to name but a few of the characteristics Hazelwood found distinctive in this case. If Hazelwood was correct about the unique combination of characteristics that the Gardner and Padilla assaults had in common, the database would have strengthened and validated his conclusions. The jury also was entitled to know if there were any flaws in his analysis. The database, at a minimum, must permit an acceptable basis for comparison. It is left to the trial court to determine what number of cases would constitute a sufficient database. IV. Defendant contends that the trial court improperly barred him from introducing evidence that would have supported an argument that someone else — a third party — killed Padilla. Defendant sought to introduce evidence that Padilla had sold crack cocaine earlier on the day of her murder for the purpose of drawing the inference that her death was drug-related. He also sought to show that unidentified sperm found in a vaginal swab from Padilla’s body could not have come from defendant and, therefore, must have come from her killer. In both instances, the trial court found that there was no rational basis to support a theory of third-party guilt. A. Evidence in support of third-party guilt, or any theory offered by the prosecution or defense, must satisfy the standards of the New Jersey Rules of Evidence. Scientific evidence offered through expert testimony must not only be relevant but also must meet the threshold of reliability. There is no burden on the defendant to prove his innocence through the introduction of evidence of third-party guilt. The defendant does not have to show that the evidence supports a probability that another person committed the crime. Third-party guilt evidence need only be capable of raising a reasonable doubt of defendant’s guilt to warrant its admissibility. B. Defendant claims that the trial court erred in not permitting him to introduce undisputed evidence that Fernandez had purchased $100 worth of crack cocaine for himself and Padilla on the day of the murder, and that Padilla had sold the drugs later that day. Defendant’s objective was to argue that Padilla was killed in a drug deal gone awry, or in the course of a robbery for drugs or drug money. Investigators learned of Padilla’s drug dealing from witnesses who were interviewed during the homicide investigation. However, no evidence was ever presented that Padilla had drugs in her possession when she left the Gem Motel to purchase food for her family and encountered her killer. No one testified that she was selling drugs at or about the time of her murder. Moreover, the scene of the crime failed to reveal any evidence of drugs or evidence suggestive of a drug sale. The evidence did not suggest, even inferentially, that Padilla’s drug dealing was connected in any way to her murder. Even if it were assumed that there was evidential support for that theory, defendant would have fit the profile of the prototypical suspect, and the door would have been opened to his own extensive drug history. If Padilla’s drug dealing had any probative value, it was substantially outweighed by the risk of undue prejudice and confusion of the issues. See N.J.R.E. 403. The drug-dealing evidence bore no relevance to any material issue in the case and, accordingly, did not have the capacity to raise a reasonable doubt of defendant’s guilt. C. Defendant contends that the trial court improperly precluded him from introducing evidence concerning sperm found in the victim’s vagina that would have suggested a third party as the killer. The trial court did not abuse its discretion. On remand, defendant may request a new N.J.R.E. 104 hearing if he can produce evidence that will satisfy the standards for admissibility of evidence. Dr. Marvin Shuster, the Middlesex County chief medical examiner at the time of the murder, testified to the presence of sperm in the victim’s vagina. Dr. Shuster was unable to give an opinion as to the age of the sperm and, therefore, could not determine whether or not the recovered sperm were ejaculated into the victim’s vagina at or near the time of her death. On the other hand, Dr. Geetha Natarajan, who succeeded Dr. Shuster as Middlesex County medical examiner, had no reservation reaching a firm conclusion with respect of the age of the sperm. She concluded that “there was no ejaculation into [the victim's] vagina at the time or immediately prior to her death” and, therefore, the recovered ejaculate “had nothing to do with her murder.” Although the defense was not bound by that conclusion, Dr. Shuster’s testimony left the age of the sperm, at best, as a matter of conjecture. Dr. Shuster could not discount the possibility that the recovered sperm entered into the victim’s vagina at or near the time of her death and, therefore did not render an opinion within a reasonable degree of scientific certainty. Had defendant been able to pinpoint the entry of the sperm to the time of Padilla’s death, then, even in the absence of identifying the donor, that evidence would have been admissible to challenge the state’s theory that the Padilla murder and the Trooper Gardner assault both involved digital penetration only. But the defense could not mount such an attack on pure speculation. The second issue is whether the vaginal swab submitted to Cellmark Laboratories for DNA (deoxyribonucleic acid) typing provided some reasonable basis to argue third-party guilt. At a N.J.R.E. 104 hearing, Paula Yates, a specialist in forensic science at Cellmark, testified that she performed a DNA analysis of the vaginal swab. She stated that she was unable to determine within a reasonable degree of scientific certainty or probability whether the sample she examined excluded the DNA of defendant, Fernandez, or even Padilla. She was unable to render such an opinion because of the absence of “control dots” that are visible when there is a sufficient amount of DNA to be tested and typed reliably for the presence of particular alleles. According to Yates, the absence of the control dots meant that she had no way of knowing if she was observing all of the DNA in the vaginal swab. Yates testified that, without the control dots, the analysis could not exclude Padilla, Fernandez or Fortin as the source of the DNA. Despite those limitations, the prosecutor and defense counsel prodded Yates to analyze the available data and to assume it to be “interpretable.” Working under that assumption, Yates testified that the data indicated that there were sperm from at least two different donors, a primary donor who contributed a number 1.2 allele and a secondary donor who contributed a number 2 allele. The analysis could not exclude defendant as the primary donor because his DNA typing had similarities to that of the primary profile, in particular the number 1.2 allele. Based on the N.J.R.E. 104 hearing testimony, the court entered an order barring any evidence or argument regarding “penile penetration resulting in an ejaculation by an unknown third-party at the approximate time of [Padilla's] murder.” The court reasoned that Cellmark, the laboratory that analyzed the vaginal swab for DNA, “could not within a reasonable degree of scientific certainty or probability exclude any of the three known persons [defendant, Fernandez or Padilla] from being the source of the sperm fraction analyzed.” On that basis, the court found that “defendant could not rationally argue that an unknown third-party [engaged in penile penetration of] the victim at the time of her death.” During the guilt phase of the trial, Dr. Charlotte Word of Cellmark testified about the DNA analysis of the dollar bill and the cigarette butt found at the murder scene. On cross-examination, defense counsel questioned Dr. Word concerning the vaginal swab. As when Paula Yates testified, Dr. Word qualified her answers by assuming that there were “appropriate controls” and that the test had produced an “interpretable result.” In this case, both Yates and Dr. Word testified that Cellmark could not reach conclusions within a reasonable degree of scientific certainty or probability because of the absence of appropriate controls. Defendant presented no expert testimony to refute that assertion. Thus, the test results of the vaginal swab were deemed scientifically unreliable. That unchallenged testimony ultimately led the trial court correctly to exclude the evidence. Even were the Court to accept the testimony of Yates and Dr. Word in which they assumed interpretable results, defendant would fare no better because he was not eliminated as a potential source of the sperm found on the victim’s body. The most liberal interpretation of the record in favor of defendant reveals that Padilla had sexual relations with someone other than her boyfriend or defendant at some unknown time before her death. That hardly counts as evidence that that unidentified person killed Padilla. V. The state alleged three aggravating factors: the murder involved aggravated assault or torture, N.J.S.A. 2C:11-3c(4)(c); the murder was committed to escape apprehension for another offense, 2C:11-3c(4)(f); and the murder was committed during commission of, or an attempt to commit, or flight after committing robbery or sexual assault, 2C:11-3c(4)(g). Defendant may prove mitigation in the penalty phase by two different means, through the introduction of mitigating factors, set forth in N.J.S.A. 2C:11-3c(5)(a)-(h), and through the introduction of mitigating evidence. In addition to the mitigating factors, the catch-all provision allows the jury to consider “[a]ny other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.” 2C:11-3c(5)(h). Defendant proposed 11 mitigating factors under the catch-all category. The state challenged two of those factors: 10. 5(h) The victim sold drugs for her boyfriend on the night she was killed. Individuals gave statements they bought drugs from the victim the night she was killed, and the victim and her boyfriend were overheard arguing about drugs the same night, thereby refuting the State’s allegation that Steve Fortin robbed the victim. 11. 5(h) The victim’s live-in boyfriend admitted engaging in consensual anal sex with the victim thus refuting the State’s allegation that Steve Fortin sexually assaulted the victim. The trial court correctly rejected the proposed mitigating factors because they were not relevant to the statutory language of 2C:11-3c(5)(h). Also, there is no support for defendant’s contention that he was barred from introducing relevant mitigation evidence to undermine the existence of the state’s aggravating factors. Applying those principles to this case, the trial court properly rejected the two proposed catch-all mitigating factors. That Padilla sold drugs earlier in the evening bore no relationship to any of the circumstances of the offense. The proposed drug-dealing mitigating factor was a thinly disguised effort to demean the character of the victim while in no way lessening defendant’s personal involvement or moral culpability in the murder. Contrary to defendant’s assertion, Padilla’s involvement in drugs did not “refute” the state’s allegation that he committed a felony-robbery-murder or suggest that someone else robbed her. Her drug dealing was not germane to any legitimate defense or mitigating factor. In addition, the victim’s prior sexual conduct was not relevant as a mitigating factor. That Padilla’s boyfriend had anal sex with her one to two weeks before her murder did not qualify as a mitigating factor because it too bore no relationship to the crime. Such evidence did not refute the evidence that Padilla was the victim of a sexual crime at the time of the murder. Defendant was unable to present any evidence that the “fresh” wounds to Padilla’s anus were caused by consensual sexual relations with her boyfriend. Defendant also argues that he was denied the opportunity to present mitigating evidence. The drug sales evidence did not discredit the felony-robbery-murder aggravating factor because there was no evidence that connected drug dealing to the murder. The drug-dealing evidence was irrelevant in the guilt phase; it is irrelevant in the penalty phase as well. The trial court, nevertheless, gave defense counsel considerable latitude to explore this subject. Moreover, defendant’s repeated assertions that he was not allowed to present evidence in rebuttal of the sexual assault aggravating factor is not supported by the record. VI. On August 22, 2000, six months before the penalty-phase proceedings in this case, the Legislature enacted a law that allowed a sentence of life without parole in certain capital cases. N.J.S.A. 2C:11-3b(4) provides that whenever a jury in a capital case finds the presence of one or more aggravating factors, but does not return a death verdict, “the defendant shall be sentenced by the court to a term of life imprisonment during which the defendant shall not be eligible for parole.” The statute also provides that: “[t]his act shall take effect immediately.” As of the time of the Padilla murder, a capital defendant faced a 30-year to life sentence with a minimum 30-year parole disqualifier if the jury found at least one aggravating factor but did not return a death verdict. N.J.S.A. 2C:11-3b(1). Before the penalty phase began in this case, defendant announced that he would subject himself to the life-without-parole alternative and asked the court to instruct the jury in accordance with the newly enacted provision. Defendant undoubtedly believed that if the jury were instructed on the life-without-parole option, it might be less inclined to return a death verdict. Such reasoning not only has roots in our common intuition, but empirical support from statistical surveys. Defendant informed the court that he would waive any ex post facto challenge to the application of the new provision. The state, however, declined to consent to defendant’s application. The court denied defendant the benefit of the new statute for two reasons. First, the court stated that despite defendant’s willingness to waive application of the Ex Post Facto Clause and to waive the right to any appeal arising from giving a life-without-parole instruction to the jury, future appellate counsel might not abide by defendant’s decision. Second, the trial court voiced apprehension that the commissioner of the Department of Corrections might not carry out the jury’s mandate of a life-without-parole sentence if the commissioner disagreed with the court’s decision to permit waiver of the protections of the Ex Post Facto Clause. Despite defendant’s willingness to subject himself to life imprisonment with no possibility of parole, the court instructed the jury that defendant potentially could be released from prison in 30 years. The policy objectives of the legislation clearly support the most far-reaching application of the statute. That means the statute embraces all capital murder cases proceeding to the penalty phase after the legislation’s effective date, provided that, in cases in which the murder preceded the effective date, the defendant must be willing to waive the protection of the Ex Post Facto Clause. One of the obvious statutory objectives was to eliminate recidivism for those who commit society’s most abhorrent crimes. In those cases in which the penalty-phase jury finds beyond a reasonable doubt an aggravating factor but does not return a death verdict, the Legislature upgraded the punishment from 30 years to life with a 30-year parole disqualifier to life without parole, thus removing any chance of the convicted murderer’s release. There is no reason why the Legislature would not have wanted to extend that punishment to the greatest number of cases constitutionally permissible. Additionally, assuming that the odds of a death verdict increase if the jury does not have the option of a life-without-parole sentence, the Court cannot discern any reason why the Legislature would have wanted to divide the fates of defendants, who had yet to proceed to the penalty phase, between those whose crimes occurred before and after enactment of 2C:11-3b(4). The legislative goal of proportionality in capital sentencing favors similar treatment for similarly situated defendants, to the extent possible. 2C:11-3(e). Applying 2C:11-3b(4) to the greatest number of cases constitutionally permissible furthers the goal of proportionate sentencing. Also, when a criminal statute is at issue, ambiguous language is interpreted in favor of a criminal defendant. In light of the purpose of the new law, in cases such as this one, there is no legislative intent to have a jury return a death verdict only because it did not have the option of returning a life-without-parole sentence. It is well established that a defendant may waive a constitutional right. Defendant was represented by two attorneys, one a private practitioner and the other a deputy public defender, both of whom were certified criminal trial attorneys. They represented to the court that defendant wished to waive application of the Ex Post Facto Clause and, in response to the court’s concerns, to waive his right to appeal that issue. Not satisfied with defendant’s proffer, the court made inquiry through a representative of the Administrative Office of the Courts with a high-level administrator of the Office of the Public Defender to learn whether that office would honor defendant’s waiver on appeal. The public defender administrator responded that his office gives “free rein” to its appellate counsel to raise all appropriate issues. Without a guarantee that its decision would be free from appellate review, the court declined to give the life-without-parole instruction to the jury. Defendant was represented by counsel who were responsible for his case. There was no need for the court to extract from defendant a waiver of a right to appeal from his waiver of the ex post facto bar. So long as the waiver procedure demonstrates that a defendant’s decision was knowing, intelligent and voluntary, the waiver is impervious to challenge on appeal. On remand, in any new penalty-phase trial, the court must give defendant the option of a life-without-parole jury instruction consistent with 2C:11-3b(4), provided defendant is willing to give a knowing, intelligent and voluntary waiver of the application of the Ex Post Facto Clause. VII. In the penalty phase, defendant was prepared to present, through the testimony of two expert witnesses, a complete 30-year social history of his life, from birth to the August 11, 1994, murder of Melissa Padilla, with two significant exceptions. Defendant intended to carve out of the presentation of his extensive criminal history any reference to his 1983 manslaughter conviction for the killing of his brother and his 1995 conviction for the sexual assault of Trooper Gardner. The trial court determined that the state was entitled to rebut that incomplete portrait of defendant’s life with the introduction of those two prior convictions in a sanitized form. The court recognized that the state could not introduce prior bad conduct, other than a murder conviction, in support of a statutory aggravating factor and that such specific past conduct was admissible only to rebut defendant’s mitigation evidence. To minimize potential prejudice to defendant, the court stated that it would allow the use of the convictions in rebuttal provided that graphic and inflammatory details were removed. The court ruled that the 1983 manslaughter conviction would be admissible, but only as a second-degree assault conviction against a brother, and the 1995 sexual assault conviction would be admissible, but only as a first-degree assault conviction. Defendant claims that to avoid the introduction of the 1983 and 1995 sanitized convictions, he was forced to forgo the presentation of any social history. Defendant made a tactical decision to abandon the presentation of his mitigation evidence to forestall the state from introducing relevant and damaging rebuttal evidence. There was no error in the court’s ruling. A. Defendant proffered three mitigating factors: he was under the influence of an extreme mental or emotional disturbance, N.J.S.A. 2C:11-3c(5)(a); he suffered from a mental disease or defect, or intoxication that sufficiently impaired his capacity to appreciate the wrongfulness of his conduct, 2C:11-3c(5)(d); and his character and record, 2C:11-3c(5)(h). In support of those mitigating factors, defendant submitted the report of Lois Nardone, M.S.W. That report gave a detailed 30-year portrait of defendant’s troubled life, a life that included physical and emotional abuse by a brother; severe beatings by his father; lack of nurture or support from his family throughout childhood and adolescence; sexual abuse by an adult male when he was a teenager; and a substantial criminal past, ending with the Padilla murder. Defendant also submitted the report of Dr. Maureen R. Santina, a forensic psychologist, who relied on Nardone’s “complete psychosocial history.” Dr. Santina diagnosed defendant’s mental-health disorders, which included drug and alcohol dependence, attention deficit/hyperactivity disorder, borderline personality disorder, and avoidant personality disorder with mixed narcissistic and antisocial personality. The only convictions missing from Nardone’s report were defendant’s 1983 theft and manslaughter convictions and his 1995 sexual assault conviction. Defense counsel had “eliminated” the April 3, 1995, sexual assault of Trooper Gardner from Nardone’s report by instructing Nardone to cut off her analysis of defendant’s social history at Padilla’s 1994 murder, and counsel redacted from Nardone’s report reference to defendant’s 1983 second-degree manslaughter conviction. The state held in reserve for rebuttal Dr. Michael Welner, a psychiatrist, who prepared a 49-page report in which he considered defendant’s entire criminal record along with information that painted a starkly different picture of defendant’s formative years than the one that appeared in Nardone’s report. In an apparent effort to limit the damaging rebuttal testimony that would have come from Dr. Welner, defendant abandoned the presentation of psychological testimony from Dr. Santina and withdrew mitigating factors 2C:11-3c(5)(a) and (d). As a result, the defense removed the threat of Dr. Welner offering a psychiatric opinion that defendant was a psychopath, as well as other testimony regarding his mental state. Dr. Welner, however, was available to rebut Nardone’s narrative of defendant’s social history. Defendant ultimately elected not to call Nardone at the penalty trial. Defendant’s only mitigating evidence was presented under the “catch-all” factor, 2C:11-3c(5)(h), through cross-examination of the state’s witnesses. B. Defendant claims that the “Hobson’s choice” foisted on him by having to choose between introducing Nardone’s social history testimony along with sanitized evidence of his 1983 and 1995 convictions, or presenting none of that testimony, effectively deprived him of all mitigating evidence, and thus a fair sentencing trial. Defendant, however, did not intend to confine the proposed mitigating “social history” evidence to his childhood, as is made clear by Nardone’s report. Instead, defendant sought to present his “complete” social history and criminal record up to the time of Padilla’s murder, which occurred exactly 20 days after his 30th birthday, and approximately eight months before his assault of Trooper Gardner. He did so, apparently, in the hope of demonstrating those facets of his life experience that contributed to the man he had become. The reliability of Nardone’s report and proposed testimony was therefore directly at issue, and subject to cross-examination and rebuttal as to its accuracy and completeness in light of the glaring omissions of defendant’s 1983 and 1995 convictions from Nardone’s otherwise comprehensive discussion of defendant’s extensive juvenile and adult record. The trial court’s sensible solution of sanitizing the omitted 1983 and 1995 convictions to first- and second-degree assault convictions was both fair and reasonable. (However, it was error to sanitizing defendant’s criminal conviction to the point of creating a fiction. Defendant pleaded guilty to committing manslaughter. Characterizing that conviction as an assault was therefore incorrect.) A capital defendant is not entitled to present an incomplete picture of his social history and criminal record by carving out and omitting those offenses he deems unfavorable to his mitigation defense. Also, the sanitized convictions were no more prejudicial than the criminal history or other unflattering details described in Nardone’s report. VIII. In the penalty phase, the trial court charged the jury on basic capital sentencing concepts. The jury was instructed to determine whether the state had proved the existence of each aggravating factor beyond a reasonable doubt. The jury was told that unless it unanimously found an aggravating factor defendant would be sentenced to life imprisonment. The jury also was told that if it found one or more aggravating factors, then it would have to decide whether there was support for any of the claimed mitigating factors. The court further instructed the jury that if even a single juror found evidential support for a mitigating factor, all jurors would have to consider that factor in the final weighing process. Last, the jury was charged that if all 12 jurors concluded that one or more aggravating factors outweighed the mitigating factors beyond a reasonable doubt, defendant would be sentenced to death, and, if not, he would be sentenced to a term of life imprisonment. The instructions omitted one critical point: if the jury did not unanimously find the existence of an aggravating factor, that factor was to be given no further consideration by any juror in the sentencing process. The poorly crafted special verdict sheet did nothing to ameliorate the absence of that instruction. The verdict sheet returned by the jury indicated that at least one juror balanced a rejected aggravating factor against the mitigating factors. The verdict sheet also suggested that the forbidden subject of the rejected aggravating factor may have been discussed in the final phase of the penalty deliberations. Defendant’s trial ended before State v. Nelson, 173 N.J. 417 (2002), and State v. Koskovich, 168 N.J. 448, 524 (2001), which squarely held that a rejected aggravating factor is entitled to no further consideration by any juror in the sentencing process. In light of the decision to reverse, the Court takes this occasion to reaffirm that principle and repeat the guidance the Court has given to the trial courts for future cases. In the penalty phase, the state presented three aggravating factors: murder involved aggravated assault and/or torture, 2C:11-3c(4)(c); murder committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense committed by the defendant, 2C:11-3c(4)(f); and murder committed while defendant engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery and/or sexual assault, 2C:11-3c(4)(g). The jury unanimously found that the state had proved the existence of the 4(c) and 4(g) aggravating factors beyond a reasonable doubt. The jury, by a vote of 11-1, rejected the existence of the 4(f) aggravating factor. Thus, the jury was authorized to weigh only the (4)(c) and (4)(g) aggravating factors against the mitigating factors submitted by defendant. The court failed to instruct the jury explicitly that all jurors must disregard any aggravating factor not unanimously found by the entire jury. The verdict sheet reveals that all 12 jurors found that the 4(c) and 4(g) aggravating factors outweighed the mitigating factors beyond a reasonable doubt. But it also shows that one juror found that the rejected 4(f) aggravating factor outweighed the mitigating factors beyond a reasonable doubt. That aggravating factor should not have received any consideration in the final weighing process. In view of the fact that a rejected aggravating factor played some role in those final deliberations, it is not known to what extent it may have infected the weighing process of those factors properly considered by the jury. The jury instructions and verdict sheet suffered from many of the infirmities discussed in Koskovich and Nelson II. In view of the reversal of defendant’s conviction, it need not be determined whether the imperfect charge and the ambiguous verdict sheet combined to meet the plain-error standard. The Model Jury Charge has been modified to encompass the holdings in Nelson II and Koskovich. IX. During the jury selection process in the penalty phase, defendant moved to dismiss M.T. for cause on the basis of that juror’s limited involvement with Padilla’s children. At the time of the murder, M.T. was friendly with the Padilla children’s babysitter, Jasmine. M.T. had seen the Padilla children four or five times, and on one of those occasions, when Jasmine was babysitting, M.T. was present with the children for three or four hours. M.T. learned of Padilla’s murder from Jasmine. She lost touch with Jasmine after the murder and, by the time of her jury service, had not seen her or the Padilla children for five or six years. M.T. had never met Padilla or been to her home, and could not recall the children’s names or Jasmine’s last name. She expressed her sympathy for the children who “wouldn’t grow up with a mother.” In light of M.T.’s assurances that she was capable of remaining fair and impartial, the court rejected defendant’s challenge for cause, finding no “reason particularly to disqualify [M.T.].” Defendant contends that the trial court abused its discretion under Rule 1:8-3(d) by refusing to grant him one extra peremptory challenge to remove M.T. Trial courts generally are given wide discretion to make voir dire decisions based on their firsthand opportunity to observe prospective jurors; they are in the best position to make judgments about a juror’s ability to be fair and dispassionate. However, there are serious misgivings about leaving a juror on the panel with a connection to the victim’s family in a capital case. As in the guilt phase, the court used a struck jury system, in which peremptory challenges were made only after a sufficient number of potential jurors had been qualified. It is difficult to discern from the cold record why defendant chose not to exercise a peremptory challenge to remove M.T. earlier in the jury selection process. Presumably, he believed those jurors he removed by peremptory challenge were more likely than M.T. to return a death verdict. In any event, the trial court denied defendant the extra peremptory challenge. Expedience must never override the painstaking process of selecting impartial jurors in a capital case. The prequalification of additional jurors in the penalty phase, however inconvenient or time-consuming, should not matter if the objectivity of a juror seated in the box is subject to some reasonable doubt. It is ill-advised, as a general rule, to seat any juror who is acquainted with a murder victim’s loved ones, no matter how convincingly that individual proclaims his or her ability to remain impartial. Those good-faith assurances do not assuage the Court’s common-sense concern that someone who had met and interacted with the young children of the victim of a heinous sexual assault and murder might be incapable of impartiality. Therefore, the Court cautions the trial courts that in any capital case in which a prospective juror is acquainted with the victim’s loved ones, the most prudent course is to remove that juror to forestall both potential injustice and the appearance of injustice. X. At the penalty-phase charge conference, the trial court reviewed with counsel the instructions it intended to give the jury. Defense counsel specifically requested that the court instruct the jury on the model charge that directs the jury not to consider the defendant’s future dangerousness in determining whether to impose a capital or noncapital penalty. Judges Bench Manual for Capital Causes, Appendix J-54 to -55. The court charged the jury in the very language endorsed by defense counsel. The trial court’s penalty-phase instructions correctly informed the jury of the possible sentences that defendant faced were it to return a verdict other than death. While describing the minimum 30-year period of parole ineligibility of a noncapital sentence, the court advised the jury that it “must then assume that [the defendant's] possible future release would not endanger society.” Although there would have been no harm in including in the charge the additional language defendant now suggests, to the effect that the defendant’s future dangerousness is not to be discussed or given any consideration in the jury’s deliberations, defendant made no such request. The court properly charged the jury on the law, admonishing the jury not to take future dangerousness into account. Defense counsel approved that instruction. The Court does not find that the court’s instruction prompted the jury to consider the very subject that it was expressly forbidden to discuss. There was no error in the charge. XI. Defendant urges this Court to reconsider its decision in State v. Martini, 131 N.J. 176, 316 (1993) (Martini I), cert. denied, 116 S.Ct. 203 (1995), which held that the New Jersey Constitution does not require aggravating factors to be submitted to a grand jury in a capital case. In Martini I, the Court rejected the theory that “aggravating factors are the functional equivalent of elements of the crime of capital murder, thereby necessitating their presentment to a grand jury and inclusion in an indictment.” Id. at 222-23. Since Martini I, the U.S. Supreme Court in Ring v. Arizona declared unconstitutional Arizona’s capital sentencing law that delegated to the judge rather than the jury the determination whether to impose the death penalty based on the finding of aggravating factors. 536 U.S. 584 (2002). The Court in Ring held that “[b]ecause Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ the Sixth Amendment requires that they be found by a jury.” Id. at 609. Ring did not address the question whether aggravating factors in a capital case must be considered by a grand jury pursuant to the Fifth Amendment. Under Article I, Paragraph 8 of the New Jersey Constitution, however, the state must present proof of every element of an offense to the grand jury and specify those elements in the indictment. Martini I’s conclusion that a capital aggravating factor does not constitute an essential element of capital murder no longer has validity in the wake of Ring. In view of this new reality, there is no principled reason for continued adherence to the notion that aggravating factors are not elements of capital murder. In all future cases, in accord with the state constitution, aggravating factors in a capital case must be submitted to a grand jury. The capital sentencing procedure in New Jersey, therefore, requires three different findings beyond a reasonable doubt by the jury before an accused receives a death sentence: (1) knowing and purposeful killing; (2) one of the capital triggers; and (3) one or more aggravating factors. The jury’s failure to find any one of those facts renders the defendant ineligible for the death penalty. Additionally, before a defendant may be sentenced to death, the jury must then find that the aggravating factors outweigh beyond a reasonable doubt the mitigating factors. N.J.S.A. 2C:11-3c(3)(a). Under the act, the prosecutor alone, not a grand jury, determines whether to charge the defendant with capital murder based on a finding that there is evidence to support the existence of an aggravating factor. If the prosecutor makes an affirmative finding of an aggravating factor, he must serve on the defendant a notice of aggravating factors. Martini I noted that in capital cases the defendant has the opportunity to challenge the sufficiency of the evidence supporting an aggravating factor in a summary proceeding before the trial court. Clearly, however, those assurances of notice and a well-founded prosecution are not adequate substitutes for the constitutional right of a grand jury presentation if aggravating factors are elements of the crime of capital murder. The grand jury serves an important and historic purpose in standing between the defendant and the power of the state, protecting the defendant from unfounded prosecutions. In Apprendi, the Supreme Court invalidated a statutory scheme that allowed a sentencing judge to make a factual finding by a preponderance of the evidence that raised the defendant’s sentence from a second-degree crime, punishable by a term of between five to 10 years in prison, to a first-degree crime, punishable by a term of between 10 and 20 years. 530 U.S. at 474; 120 S.Ct. at 2354, 147 L.Ed.2d at 445. The Court declared unconstitutional New Jersey’s hate-crime law because that statute required a jury to decide by proof beyond a reasonable doubt whether the defendant was guilty of the second-degree offense of possession of a weapon for an unlawful purpose, but left to a judge to decide by the preponderance-of-evidence standard whether the defendant possessed the weapon for the purpose of intimidating the victim because of his or her “race, color, gender, handicap, religion, sexual orientation or ethnicity.” Id. at 468-69, 491-92, 120 S.Ct. at 2351, 2363, 147 L.Ed.2d at 442, 455. The judge’s finding exposed the defendant to an “extended term” of double the sentence permitted by the jury’s finding. Id. at 469, 120 S.Ct. at 2351, 147 L.Ed.2d at 442. In assessing whether the legislative scheme comported with the federal Constitution, the Court engaged in a historical analysis under the common law. Any possible distinction between an “element” of a felony offense and a “sentencing factor” was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation’s founding. As a general rule, criminal proceedings were submitted to a jury after being initiated by an indictment containing “all the facts and circumstances which constitute the offence . . . stated with such certainty and precision, that the defendant . . . may be enabled to determine the species of offence they constitute, in order that he may prepare his defense accordingly . . . and that there may be no doubt as the judgment which should be given, if the defendant be convicted. Id. at 478, 120 S.Ct. at 2356, 147 L.Ed.2d at 448 (quoting J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862)) (footnote omitted). It also noted: “Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision.” Id. at 480, 120 S. Ct. at 2357, 147 L. Ed. 2d at 449 (quoting Archbold, Pleading and Evidence in Criminal Cases, supra, at 51 (internal citation omitted)). As can be seen, the specificity this Court requires in indictments has antecedents in the traditions of our law. The Apprendi Court held that due process requires 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.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. The Court concluded that “[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Id. at 490, 120 S.Ct. at 2363, 147 L.Ed.2d at 455 (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 1228, 143 L.Ed.2d 311, 332 (1999) (Stevens, J., concurring)). The Court emphasized 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 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457. In Ring, the Supreme Court logically extended its Apprendi holding to strike down Arizona’s capital sentencing scheme that allowed a judge alone to make the factual findings required to sentence a defendant to death. 536 U.S. at 588-89, 122 S.Ct. at 2432, 153 L.Ed.2d at 564. Under Arizona law, the maximum punishment that a defendant could receive based solely on a jury’s finding of guilt of first-degree murder was life imprisonment. Id. at 597, 122 S.Ct. at 2437, 153 L.Ed.2d at 569. Defendant could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless at a hearing the judge found beyond a reasonable doubt at least one aggravating circumstance and then found no mitigating circumstances sufficiently substantial to call for leniency. Id. at 592-93, 122 S.Ct. at 2434-35, 153 L.Ed.2d at 566. The Court, in Ring, concluded that the Sixth Amendment’s jury trial guarantee made applicable to the states entrusted to the jury the ultimate finding of the aggravating factor that exposed the defendant to the penalty of death. The Court reasoned that “[c]apital defendants, no less than noncapital defendants . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Id. at 589, 122 S.Ct. at 2432, 153 L.Ed.2d at 564. The Court rejected Arizona’s argument that, because the statute at issue specified “death or life imprisonment” as the only sentencing options, Ring‘s death sentence was within the range of punishment authorized by the jury verdict. The Court noted: [Arizona's] argument overlooks Apprendi‘s instruction that “the relevant inquiry is one not of form, but of effect.” In effect, “the required finding [of an aggravated circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict.” The Arizona first-degree murder statute “authorizes a maximum penalty of death only in a formal sense” for it explicitly cross-references the statutory provision requiring the finding of an aggravating circumstance before imposition of the death penalty. If Arizona prevailed on its opening argument, Apprendi would be reduced to a “meaningless and formalistic” rule of statutory drafting. Id. at 604, 122 S.Ct. at 2440-41, 153 L.Ed.2d at 573-74 (citations omitted). Where “enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ the Sixth Amendment requires that they be found by a jury.” Id. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d at 577 (citations omitted). Ring thus fundamentally altered the constitutional significance of aggravating factors that expose a defendant to the death penalty. In the context of deciding when the Fifth Amendment’s double jeopardy protection applied to a penalty-phase hearing in a capital case, the Supreme Court in Sattazahn v. Pennsylvania reasserted the principles established in Ring: [ Ring] held that aggravating circumstances that make a defendant eligible for the death penalty “operate as ‘the functional equivalent of an element of a greater offense.’” That is to say, for purposes of the Sixth Amendment’s jury-trial guarantee, the underlying offense of “murder” is a distinct, lesser included offense of “murder plus one or more aggravating circumstances”: Whereas the former exposes a defendant to a maximum penalty of life imprisonment, the latter increases the maximum permissible sentence to death. Accordingly, we held that the Sixth Amendment requires that a jury, and not a judge, find the existence of any aggravating circumstances, and that they be found, not by a mere preponderance of the evidence, but beyond a reasonable doubt. 537 U.S. 101, 111, 123 S.Ct. 732, 739, 154 L.Ed.2d 588, 598-99 (2003) (plurality opinion) (internal citations omitted). See also Sattazahn, 537 U.S. at 126 n.6, 123 S.Ct. at 747 n.6, 154 L.Ed.2d at 608 n.6 (Ginsburg, J., dissenting) (noting that “capital sentencing proceedings involving proof of one or more aggravating factors are to be treated as trials of separate offenses, not mere sentencing proceedings”). Unlike Arizona, New Jersey always has required that capital “triggers” and aggravating factors go to the jury and that the facts in issue be proved beyond a reasonable doubt. On more than one occasion, this Court has acknowledged that, in important ways, aggravating factors are functionally indistinguishable from the elements of a crime. State v. Biegenwald, 106 N.J. 13, 59 (1987) ( Biegenwald II) (noting “the functional similarity of aggravating factors and the weighing process itself to the traditional proof of ‘elements of an offense’”). As the Court observed in State v. Ramseur: It is clear to us, however, that functionally, the aggravating factors in the Act are indistinguishable, for this purpose, from the elements of a crime. For example, no more or less than premeditation under our prior law, proof of an aggravating factor could mark the difference between imprisonment and death. 106 N.J. at 201 n.27. Before Apprendi and Ring, New Jersey treated aggravating factors as though they were elements of the offense by submitting them to a petit jury and subjecting them to proof beyond a reasonable doubt. Following Ring, today, those procedures are a constitutional imperative. In a constitutional sense, the Arizona capital aggravating factors are indistinguishable from those in New Jersey in the manner in which they operate to elevate a term of imprisonment to a death sentence. For purposes of the Sixth Amendment’s jury-trial guarantee, aggravating factors “operate as the functional equivalent of an element of the greater offense . . . [o]f murder plus one or more aggravating circumstances.” Sattazahn, 537 U.S. at 111, 123 S.Ct. at 739, 154 L.Ed.2d at 599 (internal citations and quotation marks omitted). Thus, murder is a distinct lesser-included offense of the greater offense of capital murder. Ibid. After Ring, federal prosecutors in capital prosecutions under the Federal Death Penalty Act, 18 U.S.C.A. §§ 3591-3598, have submitted to federal grand juries those aggravating factors that make a defendant eligible for the imposition of a sentence of death. They are doing so by obtaining superseding indictments that contain a “Notice of Special Findings” alleging the aggravating factors. See, e.g., United States v. Haynes, 269 F.Supp.2d 970, 973 (W.D. Tenn. 2003) (noting that, post- Ring, government obtained a superseding indictment alleging aggravating factors); United States v. Sampson, 245 F.Supp.2d 327, 329 (D. Mass. 2003) (same); United States v. Church, 218 F.Supp.2d 813, 814 (W.D. Va. Sept 5 2002) (same); United States v. Matthews, 246 F.Supp.2d 137, 140 (N.D.N.Y. 2002) (same); United States v. Lentz, 225 F.Supp.2d 672, 675 (E.D. Va. Aug. 22, 2002) (same); United States v. Regan, 221 F.Supp.2d 672, 677 (E.D. Va. Sept. 18, 2002) (same). Federal prosecutors apparently have assumed that Ring requires a grand jury to conclude that the government’s decision to seek the death penalty is supported by sufficient evidence. The federal experience shows no sign that submission of aggravating factors to the grand jury has impaired law enforcement’s ability to prosecute capital cases. The aggravating factors in the federal capital sentencing scheme serve a substantially similar purpose to the aggravating factors under New Jersey’s Capital Penalty Act. Although the Court recognizes that the Fifth Amendment right to indictment by a grand jury does not apply to the states, Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 122, 28 L.Ed. 232, 239 (1884), the Court has never construed New Jersey’s grand jury provision under Article I, Paragraph 8 as providing lesser protection than its federal analogue. Ramseur, 106 N.J. at 215 n.42 (1987); State v. Porro, 152 N.J. Super. 259, 265 (Law Div. 1977), aff’d, 158 N.J. Super. 269 (App. Div.), cert. denied, 439 U.S. 1047, 99 S.Ct. 724, 58 L.Ed.2d 706 (1978). If aggravating factors and capital triggers are the functional equivalent of elements of capital murder pursuant to the Sixth Amendment’s right to trial by jury, the Court sees no reason to define them as something other than elements for purposes of the state constitutional right to a grand jury presentation. Therefore, New Jersey’s Constitution requires that aggravating factors be submitted to the grand jury and returned in an indictment. In a criminal justice system in which all of the elements of a crime must be submitted to the grand jury, it would be odd to make capital murder the one exception. The analysis of the development of federal law does not compel this result; logic and fairness and the historical importance attached to the grand jury system do. In light of Apprendi and Ring and the recognition that “functionally, the aggravating factors in [N.J.S.A. 2C:11-3c] are indistinguishable . . . from the elements of a crime,” Ramseur, 106 N.J. at 201 n.27, Article I, Paragraph 8 requires the submission of the aggravating factors and capital “triggers” to the grand jury. Courts do not lightly overrule their own precedents. The U.S. Supreme Court, by declaring unconstitutional one part of Arizona’s capital penalty law in Ring v. Arizona, overruled its decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), “to the extent that it allow[ed] a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” 536 U.S. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d at 576-77. The Court took note of its break with precedent: “Although the doctrine of stare decisis is of fundamental importance to the rule of law[,] . . . [o]ur precedents are not sacrosanct. [W]e have overruled prior decisions where the necessity and propriety of doing so has been established. We are satisfied that this is such a case.” Id. at 608, 122 S.Ct. at 2442-43, 153 L.Ed.2d at 576 (internal quotation marks and citations omitted). In light of Ring, federal constitutional law now clearly defines the elements of capital murder in a way that is fatally at odds with Martini I. The Court is left with no alternative but to part ways with that portion of the Martini I decision inconsistent with today’s holding. The Court is mindful that the rule it announces overrules Martini I’s interpretation of Article I, Paragraph 8 and thereby is “‘a new rule of law.’” State v. Afanador, 151 N.J. 41, 57 (1997) (quoting State v. Cupe, 289 N.J. Super. 1, 11 (App. Div.), certif. denied, 144 N.J. 589 (1996)). The Court limits this rule to purely prospective application for several reasons. In determining whether to apply a new rule retroactively or prospectively, the following three factors are considered: “‘(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.’” Knight, 145 N.J. at 251 (quoting State v. Nash, 64 N.J. 464, 471 (1974)). “The first factor, the purpose of the new rule, is often the pivotal consideration.” State v. Burstein, 85 N.J. 394, 406 (1981). New rules are given complete retroactive effect “where the purpose of the new rule ‘is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function’ and which raises ‘serious questions about the accuracy of guilty verdicts in past trials.’” Id. at 406-07 (quoting Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388, 395 (1971)). The Court has given a new rule retroactive effect where it “deals with the ultimate fairness and soundness of the jury’s verdict.” State v. Czachor, 82 N.J. 392, 408 (1980). On the other hand, in cases where “the new rule is designed to enhance the reliability of the factfinding process but the old rule did not ‘substantially’ impair the accuracy of that process,” the Court has declined to grant retroactive effect to the new rule if “the countervailing interests of the State reliance on the old rule and the undisrupted administration of justice were held to outweigh the negligible effect that the old rule had on the integrity of the truth-finding process.” Burstein, 85 N.J. at 408-09. The previous rule, enunciated in Martini I, had little impact on the truth-finding process. Before this decision today, the Court had in place safeguards that served as a substitute for the indictment process. Prosecutors were required to give timely notice of the aggravating factors and defendants were able to contest the validity of any alleged aggravating factor through the process established in McCrary, 97 N.J. at 142. In this case, at a McCrary hearing the trial court rejected a defense motion to dismiss aggravating factors 4(c) (murder involving aggravated assault and/or torture) and 4(f) (murder committed for the purpose of escaping detection), finding an adequate factual basis to support those factors. Furthermore, a defendant who advances to the penalty phase is not sentenced to death unless the jury finds an aggravating factor beyond a reasonable doubt and that all of the aggravating factors outweigh beyond a reasonable doubt all of the mitigating factors. N.J.S.A. 2C:11-3c(3)(a). Together, those procedures ensured the accuracy of the truth-finding process endorsed in Martini I, and there is no evidence that the failure to submit the aggravating factors to the grand jury in this case impaired the accuracy of that process. Given the resolution of this issue, the Court need not reach the question whether the finding of the sentencing jury rendered moot the failure of the indictment to allege the aggravating factors. See United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 942, 89 L.Ed.2d 50, 56 (1986); State v. Murphy, 110 N.J. 20, 28 (1988) (limiting Mechanik to violations of the “‘technical variety’” that raised no issue of “‘fundamental fairness’”) (quoting United States v. Taylor, 798 F.2d 1337, 1340 (10th Cir. 1986)). In light of the reliance by the state on Martini I and the opportunity for defendants to avail themselves of a McCrary hearing, this new rule is applied prospectively. In all future capital cases, the state is required to submit the aggravating factors to the grand jury and specify in the indictment those factors it intends to prove at a penalty hearing. Because there are separate trials for the guilt and penalty phases of a capital case and because the aggravating factors only apply to the penalty phase, the trial court must not read that portion of the indictment concerning the aggravating factors to the guilt-phase jury. The purpose is to prevent irrelevant and prejudicial information from tainting the guilt-phase trial. This simple rule follows from precedent in cases in which counts in an indictment are bifurcated into separate trials. See, e.g., State v. Ragland, 105 N.J. 189, 193 (1986). The holding today applies only to those cases that have yet to reach the penalty phase. In those capital cases yet to be tried, the state must present the aggravating factors to the grand jury, which then may return a supplemental indictment specifying those factors the defendant will face at a penalty trial. By this opinion, the Court in no way intends to limit the flexibility of the attorney general or prosecutors as they go about the difficult task of deciding which murder cases merit a capital prosecution. Prosecutors have the discretion to present a criminal homicide case to the grand jury at one hearing while continuing to review the circumstances that bear on classifying the case as capital murder. In such cases in which there is a later decision to prosecute the case as capital murder, the state may submit the aggravating factors to the grand jury and seek a supplemental indictment. These matters are left to the judgment of the executive branch. Nevertheless, it is expected that any such decision will be made at an early stage after indictment so as not to cause prejudicial delay. XII. Conclusion In light of the decision to reverse, there is no need to address the other issues raised by defendant. Remanded for proceedings consistent with this opinion. Chief Justice Poritz and Justices Long and Zazzali join in Justice Albin‘s opinion. Verniero, J., concurring and dissenting, joins the Court in setting aside defendant’s conviction and death sentence and concurs in all but two narrow aspects of its opinion. The first issue concerns whether the state is required to submit aggravating factors to a grand jury to be included in a capital indictment. He starts with a fundamental premise that this Court should direct the co-equal branches of government to alter existing statutory practices only when federal or a superior state law requires that direction. There is no such mandate to compel that result today. Accordingly, he would affirm the long-standing practice of having prosecutors serve notice of aggravating factors on a defendant in a capital case, a straightforward statutory procedure that provides fair notice to an accused in this setting. This Court in State v. Martini squarely rejected the argument that, as a matter of state law, aggravating factors are elements of capital murder subject to the indictment requirement. 131 N.J. 176, 222-28 (1993). In reaching this holding, the Court specifically acknowledged but was not persuaded by the notion that, in every case, aggravators should be considered the “functional equivalent” of elements. Id. at 225-26. Although two members dissented on other aspects of the Court’s decision, the dissenters registered no disagreement on the indictment question. Id. at 324-68 (Handler, J., dissenting) (disagreeing with majority on certain issues but not on indictment question). The Court, therefore, resolved that issue unanimously and reaffirmed its holding as recently as a few years ago. State v. Timmendequas, 161 N.J. 515, 638 (1999). Its rationale need not be repeated here, except to say that the Martini Court concluded that New Jersey’s legislatively established system “adequately ensures that capital-cause defendants are afforded both of the protections contemplated by the Constitution: adequate notice and well-founded prosecutions.” Martini, 131 N.J. at 227. The Court also expressed concerns about the negative consequences of a contrary conclusion, observing: in some instances, inclusion of alleged aggravating factors in the indictment would create the unwanted situation of having the factors read to the jury at the start of trial. For example, if the State were seeking to establish aggravating factor c(4)(a), that defendant had previously been convicted of murder, a reading of the indictment to the jury during the guilt phase could substantially prejudice the trial’s outcome. Id. at 226-27. Martini is still good law notwithstanding the U.S. Supreme Court decision in Ring v. Arizona, 536 U.S. 584, 588-89, 122 S.Ct. 2428, 2432, 153 L.Ed.2d 556, 564 (2002). In that case, the Supreme Court held that Arizona’s capital system impermissibly assigned to a judge rather than a petit jury the task of determining whether the aggravating factors available under Arizona law had been established in a given case. That is not a question here because New Jersey’s system already provides that a petit jury, not a judge, must determine whether the state has established such factors beyond a reasonable doubt. See State v. Koskovich, 168 N.J. 448, 518-27 (2001) (outlining function of petit jury in respect of aggravating and mitigating factors in capital trial). Viewed narrowly, Ring is distinguishable on that basis alone. Moreover, the U.S. Supreme Court grounded its decision on the fact that, as a matter of state law, the Arizona Supreme Court essentially had concluded that aggravating factors under Arizona’s system constituted elements of capital murder. Ring, 536 U.S. at 595, 122 S.Ct. at 2436, 153 L.Ed.2d at 568. As just noted, the Court considered and rejected that construction of New Jersey’s statute in Martini. In other words, there is nothing explicitly stated in Ring that requires the Court suddenly to change direction in respect of capital indictments. That federal prosecutors or lower federal courts, out of an abundance of caution, have assumed that aggravating factors are to be included in federal indictments in the face of Ring does not mean that Ring requires that practice in New Jersey. Nor does Apprendi warrant reversing course. 530 U.S. 473, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Like the issue presented in Ring, the narrow question in Apprendi was whether New Jersey’s hate-crime statute impermissibly permitted a judge rather than a petit jury to make certain findings. In invalidating that aspect of the statute, the Supreme Court noted that it was not addressing any issue concerning the indictment requirement. Id. at 477 n.3, 120 S.Ct. at 2355 n.3, 147 L.Ed.2d at 447 n.3. Justice Verniero is particularly hesitant to expand the rationale of Apprendi in the present circumstance in view of the recent recognition that the Supreme Court itself appears to be narrowing, not broadening, Apprendi‘s scope. See State v. Stanton, 176 N.J. 75, 94-96 (2003) (discussing Apprendi in aftermath of subsequent decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)). In short, federal law as reflected in Ring and Apprendi does not require New Jersey to submit aggravating factors to grand jurors. Other jurisdictions have reached a like conclusion in respect of their own capital systems. See, e.g., State v. Hunt, 582 S.E.2d 593, 602-04 (N.C. 2003) (concluding that Ring does not require statutory aggravators to be included in capital indictment and observing that “[o]ur independent review of decisions from our sister states reveals that to this date every state court addressing the above-noted issue has held that Ring does not require that aggravating factors be alleged in the indictment”). For Justice Verniero, then, the question is whether defendant has presented any new arguments that would compel the Court to alter its conclusion first articulated in Martini in 1993 and reaffirmed in Timmendequas in 1999. In his view, the defendant has not. Justice Verniero acknowledges that requiring the submission of aggravators before the grand jury might not overly burden the state. That said, consistent with his view of the judiciary as a coordinate branch of government, he is disinclined to impose that requirement absent a constitutional imperative. The Martini Court was satisfied that no such imperative existed under New Jersey law and that the current system adequately protects a defendant. For the reasons already stated, federal law does not require the Court to alter that determination. Moreover, without the Court directing them to act, the executive and legislative branches still would be free to expand capital indictments to include statutory aggravators. In view of the foregoing, he would leave Martini undisturbed. As for the second issue, he respectfully dissents from the Court’s conclusion that, in contravention of the Ex Post Facto Clause, the Legislature intended to apply the amended language found under N.J.S.A. 2C:11-3b(4) to defendant’s trial. As he sees it, lawmakers intended to avoid rather than create a constitutional issue consistent with the principle that a challenged statute should be construed “to avoid a statutory interpretation that might give rise to serious constitutional questions.” Silverman v. Berkson, 141 N.J. 412, 417 (1995). The question whether the trial court erred in denying defendant the option of waiving his ex post facto protections is, therefore, moot. There is nothing on the face of the revised statute that evinces an intention by the Legislature to apply it to crimes committed prior to the amendment’s August 22, 2000, effective date. Hence, there was no ex post facto protection that defendant needed to waive. Indeed, as the attorney general points out in his brief, “the Judges Bench Manual for Capital Causes, at page 291, instructs trial judges to apply the 2C:11-3b(4) amendment to cases where the offense occurred after August 22, 2000.” Moreover, he finds support in the legislative history for the proposition that lawmakers were sensitive to ex post facto concerns and studiously avoided them. A draft version of the statute was prefiled for introduction by its sponsors pending review by legislative counsel. That version required imposition of a life sentence with no eligibility for parole “if a sentence of death is not upheld on appeal and the death penalty is not reimposed in a subsequent proceeding[.]” Assembly, No. 1482 (Pre-Filed for Introduction in the 2000 Session). That language was deleted, and the Legislature subsequently adopted the statute’s current text. L. 2000, c. 88. Had the earlier language regarding appeals remained, defendant could have invoked it at this juncture as proof that lawmakers intended to apply the statute to him. Its timely removal by the Legislature suggests a sensitivity to constitutional issues incongruent with today’s interpretation. Equally important, New Jersey’s canons of statutory construction presume that the Legislature intends only constitutional enactments. Right to Choose v. Byrne, 91 N.J. 287, 311 (1982). Based on that presumption, the revised statute presents defendant with no ex post facto issue, rendering moot his desire to consent to the amendment’s application. For that reason, the trial court did not err by instructing the jury on the basis of the law as it stood in 1994. Justice LaVecchia joins in this opinion. — Digested by Steven P. Bann [The slip opinion, including the partial dissent, is 150 pages long.] For appellant — Jacqueline E. Turner and Linda Mehling, Assistant Deputy Public Defenders (Yvonne Smith Segars, Public Defender). For respondent — Nancy A. Hulett, Deputy Attorney General (Peter C. Harvey, Acting Attorney General).

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