SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In State v. Steven Fortin, the Supreme Court held that in death penalty prosecutions, the New Jersey Constitution requires that "aggravating factors," as a functional equivalent of the elements of the crime of capital murder, must be submitted to a grand jury and included in the indictment. The within matters present procedural questions that have arisen in the implementation of Fortin.

A Camden County grand jury has indicted Ryshaone Thomas and Marcus Toliver for the purposeful or knowing murder of Christine Eberle. The State served defendants with a Notice of Aggravating Factors, which included allegations that they committed the murder to escape detection and while engaged in committing another felony.

After the decision in Fortin was filed, Thomas and Toliver moved before the trial court for dismissal of the aggravating factors and for death qualification of the grand jurors. Further, defendants argued that their attorneys should be involved in the process, allowing the presentation of mitigating evidence to the grand jury and requiring the trial court to question each grand juror on the issue of whether the extensive media coverage of this case affected his or her ability to be fair and impartial.

Before the trial court could act on the applications, the Supreme Court certified the case directly and accelerated the scheduling of argument.

HELD: Given the specific and limited role of a grand jury, the "death qualification" of grand jurors is unwarranted. Mitigating evidence should not be put to a grand jury. The State's obligation to present exculpatory evidence under State v. Hogan includes evidence known to the State that directly negates an aggravating factor.

1. Prosecutors are not obligated to inform grand jurors that they are sitting on a capital case. The purposes of the grand jury are to "determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it." Unlike capital sentencing-phase jurors, grand jurors do not assess the moral culpability of a defendant by weighing aggravating and mitigating factors. They do not evaluate the relative strengths and weaknesses of the parties' evidence, as guilt-phase jurors do. Most important, they are not concerned with the sentencing consequences of their determination, but only with whether there is probable cause to indict the defendant charged by the prosecutor. (pp. 3-4)

2. Although defendants have withdrawn their motion in respect of mitigating evidence being presented to a grand jury, the Court has elected to express its opinion to clarify the requirements of Fortin. Mitigating evidence should not be put to the grand jury. Of course, a prosecutor has a duty under State v. Hogan to present evidence that is so clearly exculpatory that it would induce a rational grand juror to conclude that the State had not made out a prima facie case against the accused. In that context, the Court agrees with the Attorney General's observation that the State's obligation under Hogan would include the presentation to the grand jury of evidence known to the State that directly negates an aggravating factor. (pp. 4-5)

3. Supreme Court Rule 3:7-3(b) has historically required the State to present to the grand jury the "triggers" that a trial jury must find to advance a defendant to the capital sentencing phase of the proceedings. For purposes of the state constitutional right to a grand jury presentation, Fortin states that those triggers, such as murder by one's "own conduct," are now elements of capital murder. In practice, then, the only change wrought by Fortin is that the prosecutor must present to the grand jury the aggravating factors on which the State intends to rely in seeking the death penalty. (p. 5)

4. The Attorney General has suggested procedures for use in presenting potential capital cases to grand juries. The Court is referring those suggestions to its Trial Court Judges Committee on Capital Causes for a report and recommendations. (p. 5)

The matters are REMANDED to the trial court for further proceedings consistent with the Court's opinion.

CHIEF JUSTICE PORITZ and ASSOCIATE JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in the Court's opinion.
SUPREME COURT OF NEW JERSEY
A-93/ 94 September Term 2003

STATE OF NEW JERSEY,        (A-93-03)

    Plaintiff-Respondent,

     v.

MARCUS TOLIVER,

    Defendant-Appellant.

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STATE OF NEW JERSEY,        (A-94-03)

    Plaintiff-Respondent,

     v.

RYSHAONE THOMAS,

    Defendant-Appellant.

Argued June 2, 2004 – Decided June 21, 2004

On certification to the Superior Court, Law Division, Camden County.

Jamie M. Kaigh argued the cause for appellant Marcus Toliver (Conrad, O’Brien, Gellman & Rohn and Riley & Sandilos, attorneys; Mr. Kaigh and Charles P. Sandilos, on the letter briefs).

Ralph R. Kramer argued the cause for appellant Ryshaone Thomas (Mr. Kramer and John A. Mennite, attorneys; Mr. Kramer and Mr. Mennite, on the letter briefs).

Jack L. Weinberg, Assistant Prosecutor, argued the cause for respondent (Vincent P. Sarubbi, Camden County Prosecutor, attorney).

Boris Moczula, Assistant Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Peter C. Harvey, Attorney General, attorney; Mr. Moczula, Mark Paul Cronin and Paul H. Heinzel, Deputies Attorney General, of counsel and on the brief).


PER CURIAM

    In State v. Fortin, we held that the New Jersey Constitution requires that aggravating factors, as the functional equivalent of elements of capital murder, must be submitted to the grand jury and returned for indictment. 178 N.J. 540, 645-46 (2004) (Fortin II). The matters before us present procedural questions in respect of the implementation of that mandate.
Codefendants Ryshaone Thomas and Marcus Toliver were indicted by a Camden County Grand Jury for the purposeful or knowing murder of Christine Eberle by their own conduct. The State served codefendants with a Notice of Aggravating Factors, alleging that they committed murder to escape detection, contrary to N.J.S.A. 2C:11-3c(4)(f), while they were engaged in committing another specified felony, contrary to N.J.S.A. 2C:11-3c(4)(g).
After we issued our decision in Fortin II, codefendants moved for dismissal of the aggravating factors, and for further relief requiring grand jurors to be death qualified, allowing defense counsel to be involved in that process, allowing the presentation of mitigating evidence to the grand jury, and requiring the trial court to voir dire each grand juror on whether the extensive media coverage of this case affected his or her ability to be fair and impartial. We determined that we “should consider directly the issues raised in [co]defendant[s’] motion[s] regarding the presentation of aggravating factors to the grand jury in this capital prosecution” and certified the two cases before the trial court took any action on the applications. See footnote 1 We also expedited resolution of the motions to avoid delaying previously scheduled proceedings in these matters.
Codefendants contend that the assignment judge and both parties’ counsel should voir dire grand jurors individually to determine whether they have views on capital punishment that would prevent or impair substantially their ability to be impartial. We disagree. Prosecutors are not obligated even to inform grand jurors that they are sitting on a capital case. The purposes of the grand jury are to “determine whether the State has established a prima facie case that a crime has been committed and that the accused has committed it.” State v. Hogan, 144 N.J. 216, 227 (1996) (internal citations omitted). It is an “accusatory and not an adjudicatory body.” Id. at 235. Unlike capital sentencing-phase jurors, grand jurors do not assess the moral culpability of a defendant by weighing aggravating and mitigating factors. They do not even evaluate the relative strengths and weaknesses of the State’s and the defendant’s evidence, as guilt-phase jurors do. Id. at 235-36. Most important, they are not concerned with the sentencing consequences of their determination, but only with whether there is probable cause to indict the defendant charged by the prosecutor. Id. at 237. Given that limited role of the grand jury, death qualification is unwarranted.
That same reasoning applies with even greater force to the question whether mitigating evidence should be presented to the grand jury. (Although codefendants actually have withdrawn their motion on this question, we express our opinion to clarify the requirements of Fortin II.) Mitigating evidence should not be put before the grand jury. Of course, a prosecutor has a duty to present "evidence that is...so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Hogan, supra, 144 N.J. at 236. In that context, we agree with the Attorney General's observation, expressed in his brief, that the State's Hogan obligation would include the presentation of evidence known to the State that directly negates an aggravating factor.
We observe that Rule 3:7-3(b) has historically required the State to present to the grand jury the “triggers” that a petit jury must find to advance a defendant to the capital sentencing phase. See N.J.S.A. 2C:11-3c (specifying capital triggers, such as murder by one’s “own conduct”). “[F]or purposes of the state constitutional right to a grand jury presentation,” those triggers, as well as aggravating factors, are now elements of capital murder. Fortin II, supra, 178 N.J. at 645-46. In practice, then, the only change wrought by Fortin II is that the prosecutor must present the aggravating factors he or she intends to rely on in seeking the death penalty.
Finally, the Attorney General has suggested procedures for use in presenting potential capital cases to grand juries. We are referring those suggestions to the Trial Judges Committee on Capital Causes for its consideration whether rulemaking is warranted in this regard.
These matters are remanded to the trial court for further proceedings consistent with our opinion. The motions by codefendants are denied.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in this opinion.
    SUPREME COURT OF NEW JERSEY

NO.     A-93/94    SEPTEMBER TERM 2003
ON CERTIFICATION TO Appellate Division, Superior Court    

STATE OF NEW JERSEY,
    Plaintiff-Respondent,

        v.

MARCUS TOLIVER,
    Defendant-Appellant.
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STATE OF NEW JERSEY,
    Plaintiff-Respondent,

        v.

RYSHAONE THOMAS,
    Defendant-Appellant.

DECIDED June 21, 2004
    Chief Justice Poritz    PRESIDING
OPINION BY Per Curiam    
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY    

CHECKLIST  

Footnote: 1 In respect of pretrial publicity, codefendants, in their briefs to this Court, ask for a change of venue for the grand jury presentation. Their request for that relief is not properly before us. Although their motion seeking voir dire of each grand juror about media coverage is within our grant of certification, we nevertheless decline to address that question because its resolution on appeal is unnecessary to clarify post-Fortin II grand jury procedures in capital causes. We leave for the trial court any matters not decided by this opinion.