145 N.J. 23 (1996) 678 A.2d 164

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
RASHEED MUHAMMAD, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.

The Supreme Court of New Jersey.

Argued February 27, 1996. Decided June 28, 1996.

*29 John S. Redden, Deputy First Assistant Prosecutor, argued the cause for appellant and cross-respondent (Clifford J. Minor, Essex *30 County Prosecutor, attorney; Mr. Redden and Hilary Brunell, Assistant Prosecutor, of counsel and on the briefs).

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for respondent and cross-appellant (Susan L. Reisner, Public Defender, attorney).

Catherine A. Foddai, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

Marianne Espinosa Murphy, argued the cause for amicus curiae New Jersey Coalition of Crime Victims (Tompkins, McGuire & Wachenfeld, attorneys).

Boris Moczula, First Assistant Passaic County Prosecutor, argued the cause for amicus curiae New Jersey County Prosecutors' Association (Sharon B. Ransavage, President, attorney).

Jean D. Barrett argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Crummy, Del Deo, Dolan, Griffinger & Vecchione and Ruhnke & Barrett, attorneys; Ms. Barrett, Lawrence S. Lustberg, and James E. Ryan, on the brief).

Richard D. Pompelio submitted a brief on behalf of amicus curiae Pamela McClain.

The opinion of the Court was delivered by GARIBALDI, J.

At issue in this appeal is whether the New Jersey victim impact statute, N.J.S.A. 2C:11-3c(6), is constitutional under the Federal and State Constitutions. We hold that the victim impact statute is constitutional under both Constitutions.

I

Defendant is charged with the kidnapping, rape, and murder of an eight-year-old child, Jakiyah McClain. On the afternoon of April 1, 1995, Jakiyah received permission from her mother to visit a friend, Ah-Tavia Maxey, who lived only a few blocks away. *31 Jakiyah arrived at her friend's apartment between 4:00 p.m. and 5:00 p.m. She asked Ah-Tavia's father if the two girls could play outside with one another. Mr. Maxey refused to give them permission and instead told them to go upstairs to the Maxey's apartment and ask Ah-Tavia's mother for permission.

While Jakiyah and Ah-Tavia were talking, defendant entered the apartment building. He volunteered to walk Jakiyah upstairs. He knew Jakiyah's mother. Ah-Tavia watched defendant take Jakiyah's hand and lead her upstairs. Ah-Tavia apparently remained on the ground floor. Shortly after, Ah-Tavia heard kicking, banging, and the sound of Jakiyah's screams.

When Jakiyah failed to return home that evening, her mother began to search for the child. After she was unable to locate Jakiyah, the mother at approximately 11:00 p.m. filed a missing person's report with the Newark Police Department. The next day, the police went to the apartment building where Jakiyah was last seen. They were told by the building superintendent that defendant had been given permission to stay in an abandoned apartment. When the police knocked on the door of the apartment, defendant answered and allowed them to enter. The police found Jakiyah's body, curled in a fetal position with her underpants around one ankle, under a pile of clothes in the bedroom closet. Ah-Tavia Maxey identified defendant as the man she saw the day before with Jakiyah.

Defendant was taken into custody. He gave a statement to the police in which he admitted to kidnapping, sexually assaulting, and murdering Jakiyah. An autopsy of the victim indicated that the cause of death was asphyxiation and that the victim was sexually assaulted.

On June 27, 1995, an Essex County Grand Jury indicted defendant for the capital murder of Jakiyah McClain, contrary to N.J.S.A. 2C:11-3a(1), (2). Defendant was also indicted on charges of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b(1); second-degree burglary, contrary to N.J.S.A. 2C:18-2; first-degree aggravated sexual assault of a child, contrary to N.J.S.A. 2C:14-2a(1); *32 and felony murder, contrary to N.J.S.A. 2C:11-3a(3). The State served notice of four aggravating factors: that the murder involved torture, aggravated assault or depravity of mind, N.J.S.A. 2C:11-3c(4)(c); that the murder was committed to escape detection or apprehension for another offense committed by defendant, N.J.S.A. 2C:11-3c(4)(f); that the murder was committed during the course of another felony, N.J.S.A. 2C:11-3c(4)(g); and that the victim was less than fourteen years old, N.J.S.A. 2C:11-3c(4)(k).

Defendant brought a pretrial motion, challenging the constitutionality of the victim impact statute under both the New Jersey and United States Constitutions. The trial court granted defendant's motion and declared the statute unconstitutional under both Constitutions. State v. Muhammad, No. 2285-6-95 (Law Div. Nov. 17, 1995). The trial court found the statute to be "irremediably defective" and held that it was "inconsistent with existing rules of evidence and procedure and the guarantees of due process under the [C]onstitutions of this State and of the United States." Id. slip op. at 1-2. The trial court, however, declined to reach the broader question of whether the New Jersey Constitution prohibits the use of victim impact evidence. The court did, however, reject defendant's argument that the application of victim impact statute to defendant would violate the Ex Post Facto Clauses of the State and Federal Constitutions. Id. slip op. at 16-17.

We granted the State's motion for direct certification pursuant to Rule 2:12-2, and also granted defendant's motion for leave to cross-appeal the trial court's ex post facto ruling.

II

On June 19, 1995, Governor Whitman signed into law L.1995, c. 123; N.J.S.A. 2C:11-3c(6), commonly known as the victim impact statute. That law provides that:

When a defendant at a sentencing proceeding presents evidence of the defendant's character or record pursuant to subparagraph (h) of paragraph (5) of this subsection, the State may present evidence of the murder victim's character and background and of the impact of the murder on the victim's survivors. If the jury finds that the State has proven at least one aggravating factor beyond a reasonable *33 doubt and the jury finds the existence of a mitigating factor pursuant to subparagraph (h) of paragraph (5) of this subsection, the jury may consider the victim and survivor evidence presented by the State pursuant to this paragraph in determining the appropriate weight to give mitigating evidence presented pursuant to subparagraph (h) of paragraph (5) of this subsection.

[N.J.S.A. 2C:11-3c(6).]

The victim impact statute is merely one of the latest efforts by the Legislature to increase the participation of crime victims in the criminal justice system. In 1971, the Legislature enacted the Criminal Injuries Compensation Act of 1971, N.J.S.A. 52:4B-1 to -33. In 1985, the Legislature enacted the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38, which granted crime victims and witnesses certain rights, including the right to be treated with dignity, the right to be informed about the criminal justice process, and the right to be told about available remedies and social services. The following year, the Legislature amended N.J.S.A. 2C:44-6 to allow family members of murder victims to include a written statement in the defendant's presentence report. In 1991, the Legislature amended the Crime Victim's Bill of Rights to provide victims with the opportunity to submit to a representative of the county prosecutor's office a written statement about the impact of the crime on the family and to allow victims to make in-person victim impact statements in non-capital cases directly to the sentencing court. N.J.S.A. 52:4B-36.

Finally, on November 5, 1991, the New Jersey electorate overwhelmingly approved Article I, paragraph 22 of the New Jersey Constitution, which is better known as the Victim's Rights Amendment.

The Victim's Rights Amendment provides:

A victim of a crime shall be treated with fairness, compassion and respect by the criminal justice system. A victim of a crime shall not be denied the right to be present at public judicial proceedings except when, prior to completing testimony as a witness, the victim is properly sequestered in accordance with law or the Rules Governing the Courts of the State of New Jersey. A victim of a crime shall be entitled to those rights and remedies as may be provided by the Legislature. For the purposes of this paragraph, "victim of a crime" means: a) a person who has suffered physical or psychological injury or has incurred loss of or damage to personal or real property as a result of a crime or an incident involving another *34 person operating a motor vehicle while under the influence of drugs or alcohol, and b) the spouse, parent, legal guardian, grandparent, child or sibling of the decedent in the case of a criminal homicide.

[N.J. Const. art. I, ¶ 22.]

The Victim's Rights Amendment explicitly authorizes the Legislature to provide victims with "those rights and remedies" that are deemed appropriate to effectuate the purpose of that amendment. On the basis of that constitutional authority, and relying on the United States Supreme Court's elimination of a federal constitutional bar against the admissibility of victim impact evidence in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the New Jersey Legislature enacted the victim impact statute, N.J.S.A. 2C:11-3c(6).

The various victims' statutory rights enacted in this State are the product of a "victims' rights" movement that has swept through this nation over the last two decades. Historically, the legal system did not view crime victims as having any rights. Andrew J. Karmen, Who's Against Victims' Rights? The Nature of the Opposition to Pro-Victim Initiatives in Criminal Justice, 8 St. John's J. Legal Comment. 157 (1992). Because criminal attacks were viewed as attacks and threats on the entire community, and were prosecuted by the state on behalf of "the people," the actual victim was treated as merely another piece of evidence. Ibid. Although victims were expected to cooperate with authorities and to testify as part of the state's case-in-chief, little attention was paid to the financial, physical, and emotional needs of victims. David Roland, Progress in the Victim Reform Movement: No Longer the "Forgotten Victim", 17 Pepp.L.Rev. 35, 36-38 (1989). Indeed, "[m]any commentators have observed that crime victims are largely excluded from the criminal justice system, and that those who are able to participate suffer a `second victimization' at the hands of the system." Richard E. Wegryn, New Jersey Constitutional Amendment for Victims' Rights: Symbolic Victory?, 25 Rutgers L.J. 183, 184 (1993) (citations omitted). That feeling of isolation from the system causes many victims and their *35 families to "report widespread dissatisfaction with the criminal system." Id.

In response to the belief that the criminal justice system was tilted in favor of protecting the rights of defendants, while ignoring the plight of victims, crime victims joined together to address perceived injustices and imbalances in the criminal justice system and to work toward reforms. The victims' rights movement is comprised of many groups, each with their own agendas; however, all of the groups are devoted to increasing the role that victims play in the criminal process. Katie Long, Note, Community Input at Sentencing: Victim's Right or Victim's Revenge?, 75 B.U.L.Rev. 187, 189-91 (1995).

III

Defendant asserts that the victim impact statute violates Article I, paragraph 12 of the New Jersey Constitution, which prohibits the infliction of cruel and unusual punishments, and the due process clause of the State Constitution.^[1] In capital sentencing each juror must individually determine whether each mitigating factor exists, and then individually decide whether the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. State v. Bey, 112 N.J. 123, 161, 548 A.2d 887 (1988) (Bey II), cert. denied, ___ U.S. ___, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995). The death penalty is imposed only if the jurors unanimously agree that the aggravating factors outweigh the mitigating factors. Ibid. One mitigating factor, N.J.S.A. 2C:11-3c(5)(h), (section 5(h)), is defined as "any other factor which is relevant to the defendant's character or record or to the circumstances of the offense." Essentially, section 5(h) is a catch-all factor of defendant's mitigating evidence not encompassed in the other defined *36 factors. The victim impact statute provides that if the defendant presents evidence of his character or record pursuant to section 5(h), the State may present evidence of the murder victim's character and background and of the impact of the murder on the victim's survivors. That statute then directs the trial court to inform the jury that if the jury finds that the State has proven at least one aggravating factor beyond a reasonable doubt and the jury finds evidence of a mitigating catch-all factor, then the jury may consider the victim impact evidence presented by the State in determining the appropriate weight to give the catch-all factor.

Defendant alleges that the admission of victim impact statements in a capital case is likely to confuse and impassion the jury, and thus creates an impermissible risk that the penalty decision will be made in an arbitrary and capricious manner rather than on the basis of the relevant evidence. For the same reasons, defendant contends that victim impact evidence is inadmissible under N.J.R.E. 403, which requires that evidence be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or misleading the jury.

The State contends that victim impact evidence is relevant to the sentencing decision because it illustrates each victim's uniqueness as a human being and the nature of the harm caused by the defendant's criminal conduct. In addition, the State maintains that deference should be given to the Legislature's judgment that victim impact evidence plays a proper role in capital sentencing. The State urges this Court to follow the United States Supreme Court's holding in Payne and similarly recognize that the State has a legitimate interest in presenting the sentencing authority with victim impact evidence. Further, the State argues that such a result is mandated by the Victim's Rights Amendment.

IV

The victim impact statute does not violate the United States Constitution. On July 27, 1991, the United States Supreme Court held that the Eighth Amendment of the Federal Constitution, *37 which prohibits the imposition of cruel and unusual punishments, does not bar the admission of victim impact evidence during the penalty phase of a capital trial. Payne, supra, 501 U.S. at 811, 111 S.Ct. at 2601, 115 L.Ed.2d at 726. The Supreme Court overruled the prior holdings of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), in which the Court held that the Eighth Amendment prohibits a capital sentencing jury from receiving victim impact evidence relating to the personal characteristics of the murder victim and the emotional impact of the death on the victim's family, and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), in which the Supreme Court extended the rule adopted in Booth to statements made by the prosecutor about the personal qualities of the victim.

In reevaluating the exclusion of victim impact evidence, the Court rejected two of the premises underlying Booth and Gathers: first, that evidence of the personal characteristics of the victim and of the emotional impact of the crimes on the family does not in general reflect on the defendant's blameworthiness, and second, that only evidence of moral culpability is relevant to a capital sentencing decision. Payne, supra, 501 U.S. at 819, 111 S.Ct. at 2605, 115 L.Ed.2d at 731. The Court explained that the consideration of the harm caused by the crime has always been an important factor in determining the severity of a sentence. Id. at 820, 111 S.Ct. at 2605-06, 115 L.Ed.2d at 732. The majority in Payne noted that in excluding victim impact evidence, the Booth Court had misread the language of Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976), that the capital defendant must be treated as a "uniquely individual human bein[g]." Payne, supra, 501 U.S. at 818, 111 S.Ct. at 2604, 115 L.Ed.2d at 730. The Payne Court explained that "[t]he language quoted from Woodson in the Booth opinion was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received." Id. at 822, 111 S.Ct. at 2607, 115 L.Ed.2d at 733.

*38 The Court opined that the misreading of precedent in Booth had "unfairly weighted the scales in a capital trial" because it allowed the defendant to introduce virtually all mitigating evidence concerning his own circumstance, but barred the State from offering any victim impact evidence. Ibid. The Court recognized that the prosecution has a legitimate interest in using victim impact evidence to show each "victim's uniqueness as an individual human being." Id. at 823, 111 S.Ct. at 2607, 115 L.Ed.2d at 734. The Payne Court stated:

We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. "[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family." By turning the victim into a "faceless stranger at the penalty phase of a capital trial," Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.

[Id. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735 (citations omitted).]

The Payne Court thus held that if a "State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." Id. at 827, 111 S.Ct. at 2609, 115 L.Ed.2d at 736. The majority opined that "[v]ictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities." Id. at 825, 111 S.Ct. at 2608, 115 L.Ed.2d at 735. Payne left undisturbed the holding in Booth that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. Id. at 830 n. 2, 111 S.Ct. at 2611, n. 2, 115 L.Ed.2d at 739, n. 2.

We disagree with Justice Stein that the victim impact statute violates the Federal Constitution by impermissibly burdening a defendant's right to introduce catch-all mitigating evidence. Post *39 at 107, 678 A.2d at 206 (Stein, J., dissenting). Specifically, the argument is that defendants will likely forego their constitutional right to present catch-all mitigating evidence in order to avoid opening the door for the State to introduce victim impact evidence. The solution of both Justice O'Hern and Justice Stein is to permit victim impact evidence to be admitted and weighed against all the mitigating factors. We fail to understand, however, how "[p]aradoxically, more victim impact evidence would pose less of a constitutional burden than that presented by the statute before us." Post at 60, 678 A.2d at 183 (O'Hern, J., concurring and dissenting).

Justice Stein relies on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) to support his theory. Post at 106, 678 A.2d at 205 (Stein, J., dissenting). That case is easily distinguishable. Lockett, supra, held that a defendant has a right to present any relevant mitigating evidence in support of a sentence less than death. Id. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990; accord Penry v. Lynaugh, 492 U.S. 302, 317-20, 109 S.Ct. 2934, 2946-48, 106 L.Ed.2d 256, 277-79 (1989); Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1, 11 (1982). In Lockett, however, the trial court in accordance with a statute had prohibited the introduction of specific mitigating evidence. The victim impact statute does not prohibit the introduction of any mitigating evidence.

In the course of a criminal trial, defendants are constantly forced to make many hard choices. Whether they should testify or not is, perhaps, the most difficult choice. Yet no one would claim that the State's right to challenge the defendant's credibility or to introduce his prior record presents a constitutionally prohibited practice. Similarly, defendants are constantly forced to make difficult choices when they are determining what mitigating evidence to present. For example, if the defendant chooses to introduce mitigating evidence that relates to any of the other mitigating factors, N.J.S.A. 2C:11-3c(5)(a), (b), (c), (d), (e), (f), and (g), the State is allowed to present evidence that rebuts the *40 defendant's mitigating evidence. Likewise, if the defendant introduces evidence under the catch-all mitigating factor, the State is permitted to introduce evidence to remind the jury that the defendant did not kill an abstract victim, but a real, unique human being whose loss is felt by the victim's survivors. Such evidence goes to a defendant's moral blameworthiness. The defendant is no more restricted from introducing evidence relevant to the catch-all factor than he would in introducing evidence relevant to any other mitigating factor.

While we may have drafted the victim impact statute differently, the judiciary does not have a license "to rewrite language enacted by the [L]egislature." Chapman v. United States, 500 U.S. 453, 464, 111 S.Ct. 1919, 1927, 114 L.Ed.2d 524, 538 (1991) (quoting United States v. Monsanto, 491 U.S. 600, 611, 109 S.Ct. 2657, 2664, 105 L.Ed.2d 512, 524 (1989)). The victim impact statute as written is constitutional under both the Federal and State Constitutions. Accordingly, this Court has no "license" to rewrite that statute.

V

At times we have interpreted the State Constitution to afford New Jersey citizens broader protection of certain rights than that afforded by analogous or identical provisions of the Federal Constitution. See, e.g., State v. Pierce, 136 N.J. 184, 208-13, 642 A.2d 947 (1994); State v. Novembrino, 105 N.J. 95, 145, 519 A.2d 820 (1987); State v. Gilmore, 103 N.J. 508, 522-23, 511 A.2d 1150 (1986); State v. Hunt, 91 N.J. 338, 344, 450 A.2d 952 (1982). With respect to capital punishment in particular, we have held that "our State Constitution `provides an additional and, where appropriate, more expansive source of protections against the arbitrary and nonindividualized imposition of the death penalty.'" State v. Koedatich, 112 N.J. 225, 251, 548 A.2d 939 (1988) (quoting State v. Ramseur, 106 N.J. 123, 190, 524 A.2d 188 (1987), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989)). Although we have at times pursued an independent course in *41 capital punishment jurisprudence, "it is not enough to say that because we disagree with a majority opinion of the Supreme Court, we should invoke our State Constitution to achieve a contrary result." State v. Hempele, 120 N.J. 182, 226, 576 A.2d 793 (1990) (O'Hern, J., dissenting). Furthermore, whenever a challenge is raised to the constitutionality of a statute, there is a strong presumption that the statute is constitutional. "[C]ourts do not act as a super-legislature." Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 222, 486 A.2d 305 (1985). Thus, any act of the Legislature will not be ruled void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. "Where alternative interpretations of a statute are equally plausible, the view sustaining the statute's constitutionality is favored." Town of Secaucus v. Hudson County Bd. of Taxation, 133 N.J. 482, 492, 628 A.2d 288 (1993), cert. denied, 510 U.S. 1110, 114 S.Ct. 1050, 127 L.Ed.2d 372 (1994).

In Hunt, supra, 91 N.J. at 364-67, 450 A.2d 952 (Handler, J., concurring), Justice Handler set forth criteria for determining whether the State Constitution provides a basis for a result different than that permitted by the Federal Constitution. In assessing the constitutionality of a statute under the New Jersey Constitution, the following seven factors should be examined: (1) textual language, (2) legislative history, (3) preexisting State law, (4) structural differences between the Federal and State Constitutions, (5) matters of particular State interest, (6) State traditions, and (7) public attitudes.

Applying the Hunt criteria to the victim impact statute, we conclude that the New Jersey Constitution does not prohibit family members from testifying about the character of the murder victim or the impact of the crime on the family during the penalty phase of a capital case. With respect to factors one and four, textual language and structural differences, there is a substantial difference in the two Constitutions. In the New Jersey Constitution there is a specific provision, namely, the Victim's Rights Amendment, that recognizes the rights of victims. A similar *42 clause does not exist in the United States Constitution. Our State Constitution explicitly provides victims of crimes with more rights than the Federal Constitution. The Victim's Rights Amendment expressly authorizes the Legislature to provide crime victims with "those rights and remedies" as it determines are necessary. Even if we were inclined to diverge from the holding in Payne and interpret the Cruel and Unusual Punishment Clause of our State Constitution as providing greater protections against the arbitrary imposition of the death penalty, the text of the New Jersey Constitution demands that we not pursue such an independent course. The authority to enact the victim impact statute can be traced directly to Article I, paragraph 22 of the New Jersey Constitution. In upholding the constitutionality of the victim impact statute, we are mindful of the words of Justice (then Judge) Pashman in New Jersey Sports & Exposition Auth. v. McCrane, 119 N.J. Super. 457, 476-77, 292 A.2d 580 (Law Div. 1971), aff'd as modified, 61 N.J. 1, 292 A.2d 545, appeal dismissed, 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215 (1972), "It must be remembered that the greatest danger to people from the exercise of the judicial power is that there may be a usurpation by the courts of the people's right to express in law, by overwhelming numbers of their elected legislators, their collective reasoning."

An examination of factors two, five, six, and seven, offers further proof that the New Jersey Constitution, like the Federal Constitution, supports the right of victims to present victim impact evidence at the sentencing phase of a capital trial. When the Legislature enacted N.J.S.A. 2C:11-3c(6), it expressly explained in a statement accompanying the bill that the statute is designed "to effectuate Art. I, p