                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

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

STATE OF NEW JERSEY,

     Plaintiff-Respondent,
                                     APPROVED FOR PUBLICATION

v.                                      February 13, 2013

RAYMOND E. TROXELL,                    APPELLATE DIVISION

     Defendant-Appellant.
_____________________________________________________

         Submitted March 5, 2013 – Decided February 13, 2014

         Before Judges Messano, Lihotz and Ostrer.

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

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

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

         Appellant filed a pro se supplemental brief.

         The opinion of the court was delivered by

MESSANO, P.J.A.D.

     Defendant Raymond E. Troxell was indicted by the Middlesex

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

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

charged in the same indictment with the first-degree purposeful

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

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

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

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

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

The   jury   also    answered       two   specific   interrogatories     in    the

affirmative,       compelling   a    mandatory   sentence   of    life   without

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

the following arguments on appeal:

             POINT I

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

             POINT II

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

             POINT III

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



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

In a pro se supplemental brief, defendant raises the following

points:

          POINT I

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

          POINT II

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

          POINT III

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

          POINT IV

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

Having considered these arguments in light of the record and

applicable legal standards, we affirm.




                                3                         A-3730-10T2
                                          I.

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

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

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

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

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

the   business      opened,   however,        defendant      began   complaining       to

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

Russo    was    compensating       himself     and    not     contributing      to    the

workload.

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

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

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

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

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

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

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

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

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

defendant "talk[ed] too much."

      Other     witnesses     called      by    the    State      testified     to    the

animosity between defendant and Russo over the operation of the

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




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

complaining about Russo talking money from the business.

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

Brunswick      Township        police     officer           Robert        Frangella      was

dispatched      to    Mezzaluna.        All       the      doors    were    locked,      but

Frangella noted a Jeep with New York license plates parked in

the rear.      Shortly thereafter, Agostino arrived and opened the

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

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

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

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

on a table near the body.

       It was estimated that Russo had been dead for approximately

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

death, the medical examiner determined at autopsy that Russo

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

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

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

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

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

movement.

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

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




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

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

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

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

Kissel refused.          Kissel testified that defendant talked about

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

whether the two discussed the issue outside his presence.

    Kissel         testified     that    on      December      15,      2008,     at

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

Following a brief conversation, the substance of which was not

admitted    before    the   jury,     Kissel    went    to   Mezzaluna    and    saw

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

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

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

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

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

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

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

not see defendant give the money to Marsh.

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

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

testified that the three men were there, and videotapes from

surveillance cameras at the bar corroborated the meeting.                       Cell




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

each other numerous times on December 15.                       Defendant also called

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

on December 16.            Marsh called defendant later that afternoon,

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

time, defendant was being interviewed by investigators.                               Within

thirty minutes of completing the interview, cell phone records

revealed      that    defendant      called       Marsh      and     spoke    to     him   for

several minutes.

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

defendant and Marsh speaking together outside the cab company on

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

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

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

bullets     that     the       derringer    used       and   left       one   in     the   cab

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

by    the   State's    ballistics         expert       revealed      that     this   caliber

bullet was consistent with the projectile fragments recovered

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

fragments could have been fired from a derringer.




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



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

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

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

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

him two pills.        Chicarella testified the pills looked the same

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

      Defendant was interviewed by Investigator Paul Miller of

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

A   formal    statement     was    videotaped       and    played    for    the     jury.

Miller interviewed defendant again on December 18, 2008, after

having    interviewed       Kissel     and       other    witnesses.         Defendant

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

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

would actually take him seriously and kill Russo.                           When Marsh

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

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

was videotaped and played for the jury.

      Marsh lived in Macungie, Pennsylvania.                        On December 19,

Miller    and     other   law    enforcement       officers      executed    a    search

warrant      at   Marsh's       home   and       seized    various     firearms        and

ammunition.        Also found was an empty American Derringer "gun

box."




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

trial, defendant approached David Stankovits, a fellow inmate,

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

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

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

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

through    the    rear     door.       In       exchange        for    this        testimony,

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

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

                                                IV.

    Finally, we consider defendant's contention that the judge

failed    to    properly    instruct     the      jury     that       it    must    return    a

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

that would make defendant eligible for a mandatory sentence of

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

Defendant also posits a more subtle argument.2                              Analogizing to

prior    death    penalty    jurisprudence,           he   argues          that    the   judge

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

unanimous verdict on the triggering factor.                            He contends this


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



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

properly instructed and returned a non-unanimous verdict on the

triggering factor, he would not have faced a mandatory life

sentence without parole.

    The State contends that prior jurisprudence is inapplicable

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

adoption of significant statutory amendments in 2007.                          The State

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

unanimity   instruction,      we    must       conduct      our    review     under      the

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

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

applies   the   plain-error        standard         when   a     defendant     fails      to

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

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

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

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

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

should remand for imposition of a sentence in accordance with

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

2C:43-7.2 (NERA).

                                               A.

    Pursuant to amendments enacted by the Legislature in 2007,

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




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

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

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

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

the    present   statutory      scheme,    "a    person    convicted     of    murder

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

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

term    of    years    which     shall    be    between     30   years   and        life

imprisonment of which the person shall serve 30 years before

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

       However, if the State proves one of several "triggering

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

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

forth one such triggering factor:                  a defendant convicted of

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

becomes eligible for a mandatory sentence of "life imprisonment

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

commission of the offense by payment or promise of payment of

anything of pecuniary value."            Ibid.

       In    order    for   defendant     to     have     been   eligible      for     a

mandatory life sentence without parole in this case, the jury

was specifically required to unanimously decide that defendant

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




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

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

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

     Once eligible, a mandatory sentence of life imprisonment

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

reasonable     doubt   that    any   of"   certain   "aggravating      factors

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

procured the commission of the murder by payment or promise of

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

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

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

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

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




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

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

    The record reflects that in this case the judge reviewed

his charge with the attorneys at length.         Defense counsel agreed

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

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

before explaining the verdict sheet, the judge explicitly told

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

on the verdict sheet asked whether defendant was guilty as an

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

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

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

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

    After the jury announced its unanimous verdict regarding

the first two questions, the judge told the jury to

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

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

regard   must   be   unanimous."        A   special   interrogatory   was

submitted to the jury, asking whether defendant "procured the

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



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

the aggravating sentencing factor.4


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

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

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

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


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

instructions regarding the need for unanimity of its verdicts

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

triggering     factor     of     procuring         Russo's       murder      and      the

aggravating    sentencing      factor    is      clearly       without    merit.        R.

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

                                        B.

       The more difficult issue is whether the judge was required

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

triggering factor.       Defendant argues a non-unanimous verdict as

to the triggering factor would have been a valid verdict which

eliminated the possibility of a mandatory life sentence without

parole.       Under    those    circumstances,           the    judge     would     have

necessarily been required to sentence defendant in accordance

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

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

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

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

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


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



                                        15                                      A-3730-10T2
                         Prior Death Penalty Jurisprudence

       Prior to the 2007 amendments, a defendant was eligible for

the    death     penalty       if,     having      been      convicted      of        knowing     or

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

unanimously concluded beyond a reasonable doubt that the State

proved one of certain triggering factors.                           These included, among

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

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

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

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

       If    the      jury    returned        a    unanimous        verdict          as    to    the

triggering factor, "a separate sentencing proceeding" was held

"to    determine         whether     the     defendant        should       be    sentenced        to

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

burden      of   proving      at     least    one       statutory     aggravating           factor

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

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

evidence"        as    to    any     statutory          mitigating        factor.           Former

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

       The statute explicitly provided for three possible verdicts

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

"any   aggravating           factors    exist          and   that   all    the       aggravating

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




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

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

aggravating         factors   existed,   or     those    that      existed        did    "not

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

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

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

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

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

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

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

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

existence of one or more aggravating factors, but that such

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

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

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

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

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

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

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

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

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

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




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

arose initially relied exclusively upon the express language of

the   statute.       Providing          a    non-unanimity                 instruction        in    the

sentencing phase of a death penalty case was first required in

Ramseur.       There,     citing        extensively               the      language      of    former

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

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

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

statutory      option     to    return           a       final,       non-unanimous           verdict

resulting    in    imprisonment             if,      after        a    reasonable        period      of

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

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

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

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

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

verdict    that    would       result       in       a    minimum          of   thirty    years      of

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

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

criminal prosecution, jurors need not reach a unanimous verdict.

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

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

(emphasis added).

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




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

factors.     Firmly tethering its conclusions to the language of

the statute, the Court said:

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

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

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

evidence    of   the   existence    of    a   mitigating   factor,"    former


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



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

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

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

factor must be allowed to determine whether he harbors such a

[reasonable]       doubt       by   conducting              his    or    her     own    weighing

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

must     unanimously       agree       as    to       any       mitigating       factor        were,

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

       The Court first extended the requirement of a non-unanimity

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

There,     the    defendant         argued        "that         the     court    should         have

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

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

murders    by     his    own    conduct,"             the    death      penalty        triggering

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

on that issue was acceptable and would not affect the murder

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

that

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




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

    The Court further explained:

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

            [Id. at 516-17.]

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

triggering the penalty phase supports the conclusion that jurors

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

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

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

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



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

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

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

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

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

(citations and internal quotation marks omitted) (alteration in

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

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

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

distinction between the intent to kill and to cause serious

bodily injury."      Id. at 487.6

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

prosecutions included a non-unanimity instruction regarding the

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

hire death penalty prosecution, judges were required to give the

following instruction:

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

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



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

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

                         The 2007 Amendments

    In January 2006, the Legislature established the New Jersey

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

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

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

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

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

recommendations to the Governor and the Legislature, along with

any legislation it desires to recommend for adoption by the

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

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

death penalty in New Jersey be abolished and replaced with life

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

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




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

alternative of life imprisonment . . . without the possibility

of parole would sufficiently ensure public safety and address

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

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

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

a    certain    punishment,      not    subject      to   the   lengthy   delays     of

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

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

       The Commission's report included recommended legislation.

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

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

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

Comm. Statement, supra.

       Changes      made   by   the     2007      amendments    were   sweeping     and

exceeded mere elimination of the death penalty as a possible

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

will receive a sentence of life without parole if the State

demonstrates beyond a reasonable doubt that one or more of the

statutory aggravating factors is present.                       The amended statute

does not permit the defendant to present mitigating factors."

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

The Legislature also eliminated the requirement that the jury be




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

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

important to the issue we face, the 2007 amendments completely

eliminated      any   statutory      reference      to    the    option      of   a   non-

unanimous verdict at any stage of the prosecution.

                                              C.

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

provide    a    non-unanimity       instruction      regarding         the   triggering

factor     that   made    defendant      eligible         for    a     mandatory      life

sentence without parole.             We reach this decision for several

reasons.

      We presume that prior to passage of the 2007 amendments,

the Legislature was fully aware of not only its prior enactments

but also precedent that evolved under the death penalty statute.

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

ascertaining       legislative       intent,       we     can        infer   that       the

Legislature was 'familiar with its own enactments, with judicial

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

cognate laws with the intention that they be construed to serve

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

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

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

response to the Court's death penalty jurisprudence).




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

topic is only strengthened by its initial decision to form the

Commission to study the issue and make recommendations.                        The

Commission's recommendations eliminated any statutory references

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

ultimately     adopted,         in      essence,       the     Commission's

recommendations.

      In addition, the entire line of cases that first adopted

the requirement of a non-unanimity instruction in the sentencing

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

phase determination as to a triggering factor, had its genesis

in statutory language that has since been repealed.                  The Brown

Court, which first extended the requirement for the charge to

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

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

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

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

the   "consequences"    of    the    penalty   phase   reflected     a    choice

between life and death; the Legislature has now eliminated one

of those possible consequences.

      Furthermore, it is clear that the Court never grounded its

requirement for a non-unanimity instruction in the guilt phase

of a capital prosecution upon the State Constitution.                Nor could




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

States Supreme Court has expressly rejected the claim that a

non-unanimity           instruction     is    required       in     capital      sentencing

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

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

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

requirement           "that   the     jury    be    informed        of    the    sentencing

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

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

315).

       Our decision is further supported by the Court's frequent

recognition that death was a sentence qualitatively different

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

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

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

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

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

described         its     "capital      jurisprudence            [as]      stressing       the

importance of providing a jury with every opportunity to spare a

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

       In       Cooper,    the   defendant         argued    that        Brown   and   Meija

compelled        a    non-unanimity     instruction         permitting        the   jury   to

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




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

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

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

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

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

fundamental difference in nature between a sentence of death and

a   sentence     of    life     without      parole   suggests       that,       where      the

jurisprudence differs between death penalty cases and subsection

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

courts in favor of defendants that were applicable in death

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

2C:11-3 (2013).

       Lastly, defendant has not cited us to and our independent

research      fails    to    reveal    that    any    state    has    taken         the   path

defendant urges.             Within the past 100 years, thirteen other

states     and       the    District    of     Columbia       have     repealed           their

respective death penalty provisions.                       Some of them previously

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

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

cases.

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

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




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

scheme for murder in New Jersey.7

     Affirmed.




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



                               29                       A-3730-10T2
