HANDLER, J., concurring in part and dissenting in part.

Samuel Erazo was convicted of murder and sentenced to death. The Court now reverses both his conviction and death sentence. I concur in that judgment.

The Court rules that the trial court impermissibly shifted the burden to defendant to prove beyond a reasonable doubt that he acted in the heat of passion on reasonable provocation and that the error required a reversal of the conviction for knowing and purposeful murder. Ante at 121-126, 594 A.2d at 237-239. The Court also determines that there was a rational basis in the evidence to enable a reasonable jury to determine that defendant did not intend to kill his victim and that the trial court failed to charge the jury correctly under State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988). Ante at 126-129, 594 A.2d at 239-240. I agree with each of these rulings.

There are additional grounds that, in my view, merit reversals of the murder conviction and death sentence. The voir dire was so inadequate as to deprive defendant of his constitutional right to a fair and impartial jury. Further, I am convinced that the use of evidence relating to a prior murder was error. Although the prior murder conviction itself was a permissible aggravating factor, under the circumstances it was error to introduce it into evidence in the guilt phase of the trial. Further, the details of the prior murder were inflammatory and went well beyond a legitimate probative purpose. In addition, there was insufficient evidence to support the c(4)(c) aggravating factor. Its presentation in the penalty trial had multiple prejudicial effects. It exacerbated the prejudicial impact of the evidence of the details of the prior murder. Further, in view of the patently insufficient evidence of c(4)(c), reliance on that factor constituted an abuse of prosecutorial discretion and prosecutorial overcharging. Finally, I believe that our State Constitution requires us to scrutinize victim-impact evidence more rigorously than does the United States Constitution as interpreted by recent Supreme Court precedent.

I also dissent from the Court's judgment remanding the matter to be retried as a capital case. I adhere to the view that the capital-punishment statute is unconstitutional, as enacted, construed, and applied. E.g., State v. Dixon, 125 N.J. 223 , 265, 593 A.2d 266, 286 (1991) (Handler, J., dissenting in part and concurring in part).

I

Defendant contends that the voir dire violated his right under the state and federal constitutions to trial by an impartial jury. The court expresses misgivings about the voir dire but fails to determine that its deficiencies were sufficiently serious to warrant reversal. Ante at 128-130, 594 A.2d at 240-241.

Although the right of a defendant in a criminal trial to a fair and impartial jury is guaranteed under both the state and federal constitutions, it is a right of special importance under the New Jersey Constitution. "The courts in this State have recognized that under the State Constitution, Art. I, par. 10, the right of a defendant to be tried by an impartial jury is of exceptional significance." State v. Williams I, 93 N.J. 39, 60, 459 A.2d 641 (1983); cf. State v. Dunne, 124 N.J. 303 , 590 A.2d 1144 (1991) (if defendant is required to be tried by jury, court must assure thorough voir dire so that jury is fair and impartial). This Court has repeatedly stated that the juries in this State must be "as nearly impartial `as the lot of humanity will admit.'" State v. Williams, 113 N.J. 393 , 409, 550 A.2d 1172 (1988) ( Williams II) (citations omitted). The requirement of jury impartiality "is heightened in cases in which the defendant faces death." Ibid. (quoting Williams I, 93 N.J. at 60, 459 A.2d 641); see State v. Ramseur, 106 N.J. 123, 324 n. 84, 524 A.2d 188 (1987).

In Williams II, this Court set forth the standard by which trial courts must conduct voir dire in capital cases. That standard requires open-ended, probing, and exhaustive questioning of prospective jurors to ensure that no bias or prejudice enters the jury's deliberations:

[C]ounsel must be afforded the opportunity for a thorough voir dire to evaluate and assess jurors' attitudes in order to effectively participate in jury selection. If counsel is unable to screen out prejudice and bias, that inevitably leads to unfair juries. This result — or the possibility of this result — cannot be tolerated. [ 113 N.J. at 409, 550 A.2d 1172.]

The Court has continued to adhere to the standards of Williams II, and thus has found various aspects of the voir dire to be less than adequate in a number of subsequent capital cases. E.g., State v. Biegenwald, 126 N.J. 1 , 594 A.2d 172 (1991) ( Biegenwald IV); State v. Moore, 122 N.J. 420 , 443-54, 585 A.2d 864 (1991); State v. Clausell, 121 N.J. 298 , 320-32, 580 A.2d 221 (1990); State v. Johnson, 120 N.J. 263 , 292-93, 576 A.2d 834 (1990). In Biegenwald IV, the Court set aside the defendant's capital sentence on the sole ground of inadequate voir dire.

In this case, the Court apparently finds the voir dire inadequate, ante at 128-130, 594 A.2d at 240-241 but, because it reverses defendant's conviction and sentence on other grounds, it chooses not to "belabor this point," ante at 129, 594 A.2d at 241. I believe it essential, however, to elaborate on the horrendous inadequacies of the voir dire in this case, and to explain why this voir dire by itself requires the reversal of defendant's conviction and capital sentence. It cannot, in this context, be overemphasized that the United States Supreme Court continues to eviscerate the procedural safeguards afforded capital defendants under the federal constitution, see, e.g., Mu'Min v. Virginia, ___ U.S. ___, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) (where jurors admitted having been exposed to news accounts concerning the murder with which defendant had been charged, trial court's failure to ask the jurors about contents of the accounts did not deprive defendant of his sixth amendment right to impartial jury). That untoward development only strengthens the need and responsibility of state judiciaries to assure the sufficiency of protection in capital causes. See Acker Walsh, "Challenging the Death Penalty Under State Constitutions," 42 Vand. L.Rev. 1299, 1345-54 (1989) (capital defendant's right to fair and impartial jury likely to be better protected under state constitutions than United States Supreme Court precedent). That is particularly true when, as here, the right afforded under the State Constitution is broader than under the Federal Constitution, and where federal decisions betray indifference and inconsistency with respect to the rights of capital defendants. See Williams II, 113 N.J. at 465, 550 A.2d 1172 (Handler, J., concurring) (noting areas in which this Court has departed from federal death-penalty jurisprudence); State v. Ramseur, supra, 106 N.J. at 345-82, 524 A.2d 188 (Handler, J., dissenting) (to follow federal death-penalty precedent would be to risk integrity of our constitutional principles).

In this case, one critical issue on the voir dire concerned the relevance of defendant's prior murder conviction. At a pre-trial conference between court and counsel regarding the content of voir dire, defense counsel sought to have the court ask the following question of prospective jurors: "Would you favor the death penalty for someone who has previously been convicted of murder?" The court refused defendant's request, stating that "[w]hat you're now getting into is the aggravating, mitigating factors, and trying to probe a juror as to how they approach an aggravating factor, whether that aggravating factor is enough to carry the death [sic]." After the court later ruled that the State could introduce evidence of defendant's prior murder during the guilt phase pursuant to Evidence Rule 55, defendant renewed his request. The court again denied the request, stating: "well then I get into the position of if for some reason it [the prior murder] doesn't come out, that I have this all before the jury sitting there waiting for what information they're going to hear about it." The court repeated that in any case, it believed the question improper. The second day of voir dire, defendant again requested the court to question prospective jurors on their feelings about "this highly prejudicial" evidence. Again, the court denied the request.

In my view, the trial court's denial of the voir dire requested by defendant's trial counsel with respect to juror attitudes toward a defendant with a prior murder conviction deprived defendant of the opportunity to discover which of the prospective jurors harbored impermissible or undesirable biases, thereby denying defendant due process.

In Williams II, the defendant argued that the trial court had abused its discretion in failing to ask prospective jurors who favored the death penalty whether they would automatically favor death if the defendant had committed murder and rape. The Court stated that

the issue presented is not simply whether the combination of murder and another crime would prompt a juror to automatically support the death penalty in all cases, which obviously warrants disqualification. Rather, the issue is whether the juror's "capacity to credit the evidence in mitigation would be `substantially impaired' within the meanings of Adams [ v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980)] and [ Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)]." [ 113 N.J. at 415, 550 A.2d 1172 (quoting State v. Bey, 112 N.J. 123 , 154, 548 A.2d 887 (1988) ( Bey II)).]

This Court held that "[t]he trial court's refusal to allow questions that might provide important insight into any juror's attitude concerning a rape accompanying a murder constitutes serious error." Id., 113 N.J. at 417, 550 A.2d 1172.

In State v. Biegenwald IV, supra, the Court, relying on Williams II, held that the trial court's failure to ask jurors whether they would favor the death penalty for someone previously convicted of murder also "constituted serious error." 126 N.J. at 30-35, 594 A.2d at 187-189. According to the Court,

[t]he similarities between this voir dire and the one addressed in Williams II are plentiful, obvious, and disturbing.

* * * * * * * *

With the mere interchange of "another murder" for "rape," th[e] reasoning [of Williams II] is equally applicable to the present circumstances.

* * * * * * * *

In Williams II, we recognized that the brutality of a rape and murder could blind venirepersons in the performance of their duties as jurors. Similarly, we are convinced that knowing a defendant had killed before could cause an otherwise fair-minded person to disregard evidence offered in support of mitigating factors. [ 126 N.J. at 30, 31, 32, 594 A.2d at 186-187.]

The Court found that that error, combined with an overall voir dire that was less than probing and thorough, required reversal of the defendant's capital sentence. 126 N.J. at 35, 594 A.2d at 189.

In addition, the trial court here erred in failing to question prospective jurors on whether views in favor of the death penalty would prevent or substantially impair their performance as jurors. In Bey II, supra, 112 N.J. at 152, 548 A.2d 887, the Court stated:

Jurors are equally bound to render a just and impartial verdict whether they are for or against the death penalty. Our duty to assure that a defendant is tried by an impartial jury leads us to conclude that a single test should apply to all jurors irrespective of their predilection concerning the death penalty.

This Court noted that the United States Supreme Court has "similarly concluded that it would be reversible error to permit jurors to sit on the penalty phase if their bias in favor of the death penalty substantially impaired their impartiality, provided the defense properly preserved the right to challenge the court's failure to remove the jurors for cause." Ibid. (citing Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)).

Defendant here requested that three questions concerning attitudes toward the death penalty be included in the questionnaire distributed to prospective jurors. The questions were:

If you were convinced beyond a reasonable doubt that a defendant was guilty of knowing or purposeful murder, is there any reason you would not impose the death penalty?

Are your feelings about the death penalty such that it would be difficult for you to consider a life sentence as an alternative punishment?

Do you think that the death penalty is the appropriate punishment for all murders?

The trial court refused to allow any of the questions. The trial court's main concern was "not [to] allow [counsel] to probe into the reasoning of the jurors." The trial court explained its objection to the first of the three questions as follows:

I think I have already asked this question and, too, this is in effect asking the juror as to what their standards are or would be for imposing the death penalty and that we're not interested in. [emphasis added).]

The court had made clear that it would not allow defense counsel to probe the venirepersons' views on the death penalty, and defense counsel was able to ask only limited questions.

THE COURT: We're not interested in their opinions on the death penalty. This is not a philosophy class.

* * * * * * * *

The purpose of our inquiry is could you enforce the law that's providing for the death penalty, not questioning them as to what factors bring that law into being or brings that particular provision of our law into force. We're not going to question them on that. I think that would be improper.

The court was apparently concerned that the defense in effect was challenging the legislative standard and attempting to gain some sort of strategic advantage. The court stated:

Well, what you're in effect asking, and that's one of the problems with these probing questions here, are your feelings about the death penalty such that it would be difficult for you to consider a lighter sentence as an alternative punishment.

If a person indicated in that question yes, then you would, I think, conclude that that person is a person strongly in favor of the death penalty because it would be difficult for them to consider anything else as an alternative punishment because it didn't equal the death penalty, and I think that's where that question ultimately leads when you sit down and analyze what the yes means.

If the person says no, then you would get the impression that they could impose a lesser sentence such as life imprisonment as an alternative and be more comfortable with that, and that would be the type of juror that you would seek. [(Emphasis added).]

The very purpose of voir dire, especially in a capital case, is to probe the minds of jurors in order to make sure their biases will not interfere with the exercise of their duties. See Williams II, supra, 113 N.J. at 418-427, 550 A.2d 1172. Furthermore, "when exercising their wide discretion to control voir dire in death penalty cases . . ., trial courts should be sensitive to the questions suggested by counsel . . .," Williams II, supra, 113 N.J. at 426, 550 A.2d 1172, and "should be particularly responsive to the requests of counsel regarding the examination of prospective jurors as to potential bias." Williams I, supra, 93 N.J. at 68, 459 A.2d 641.

The court refused to permit the questions suggested by counsel, and without giving any satisfactory reasons, and refused most of counsel's entreaties at least to have the court itself ask proposed similar questions. As a result, many prospective jurors, including jurors who were seated as part of the deliberating jury, were never asked if they would automatically vote for the death penalty. Virtually no prospective jurors were asked if there were any circumstances under which they would be more inclined to impose the death penalty. However, if a juror indicated a willingness to impose the death penalty, questioning on the subject ended there. By contrast, generally, if a juror indicated hesitancy in answering a question on his or her ability to impose the death penalty, extensive questioning followed. Furthermore, although the court excused for cause a number of jurors because of their feelings against the death penalty, not a single prospective juror was excused for cause as a result of his or her feelings in favor of the death penalty. The result, similar to Williams II, is that nothing of substance concerning the views of jurors favoring the death penalty is ascertainable from this record. See 113 N.J. at 423, 550 A.2d 1172.

Another serious defect of the voir dire was the three-minute limit the court imposed on counsel during their questioning of prospective jurors. It does not escape the Court's criticism. Ante at 129. Although allowing counsel to question prospective jurors, the court imposed a three-minute limit, explaining that "to say we're going to start off open-ended and see where it takes us, I have found that in my previous jury qualifications for this type of case it utilizes too much time and we always hit a rhythm after we eliminated that open-ended." (Emphasis added). It is true that the court often allowed counsel to go over the limit, particularly when the venireperson had indicated a reluctance to impose the death penalty. Often, however, the court would not allow counsel to exceed the limit, and even the State was not immune to being cut off in the middle of important questioning.

Although defendants are not entitled to voir dire conducted by counsel, State v. Biegenwald, 106 N.J. 13 , 29-30, 524 A. 2d 130 (1987), the time-limit placed on counsel was especially harmful in light of the fact that the court itself did not ask probing, open-ended questions. Frequently, the court let ambiguous or troublesome answers stand without asking follow-up questions. In the voir dire of prospective juror Michael Stefanelli, for example, Mr. Stefanelli indicated he might be biased against ethnic minorities, including Hispanics. Incredibly, the trial court did not ask further questions.

Moreover, the court's use of close-ended, leading questions was not limited to questioning on the death penalty. In response to a question on the juror questionnaire about whether they would give greater weight to the testimony of a police officer, many jurors answered yes. The court invariably responded not by probing the prospective juror's views but by persuading, in effect, the juror to change his or her mind. Cf. State v. Dixon, supra, 125 N.J. at 271, 593 A.2d at 290 (Handler, J., dissenting in part and concurring in part) (the voir dire was inadequate because, along with other errors, the court asked leading questions calculated to produce "correct" answers).

In Biegenwald IV, supra, this Court held that the trial court's failure to conduct a searching voir dire, combined with the failure to ask jurors whether they would favor the death penalty for a defendant previously convicted of murder, required reversal of defendant's capital sentence. 126 N.J. at 43, 594 A.2d at 194. In Williams II, supra, the Court held that the trial court's failure to conduct a searching voir dire, combined with the failure to excuse for cause a juror who clearly should have been excused, required reversal of defendant's conviction and sentence. 113 N.J. at 445, 550 A.2d 1172. Here, all three errors are present. Thus, under both Biegenwald IV and Williams II, this Court should reverse defendant's conviction and sentence.

The record fully supports the conclusion that the overall voir dire was so wholly inadequate as to deprive defendant of his right under the State Constitution to trial by a fair and impartial jury.

II

The trial, in my view, was seriously prejudiced by the evidence relating to a prior murder conviction of defendant. Ten years before committing the present homicide, defendant had brutally stabbed to death his former girlfriend's fifteen-year-old daughter with whom he had been having sexual relations. Prior to trial, the court granted the State's motion to introduce evidence of defendant's prior murder conviction during the guilt phase of the trial. According to the State, defendant's alleged remarks to Michael Harrison and Blanca Flores that he had killed before and might have to kill again made the prior murder relevant to defendant's intent on the night of the Lucy Erazo stabbing. The prosecutor, in addition to eliciting testimony concerning the remarks during his direct examination of Harrison and Flores, repeated them in both his opening and closing guilt-phase arguments. He also introduced into evidence a redacted copy of defendant's prior convictions for the murder and carnal abuse of his girlfriend's daughter. This Court now rejects defendant's argument that the evidence should have been excluded under both Evidence Rule 55 and Evidence Rule 4. Ante at 130-132, 594 A.2d at 241-242.

" Evidence Rule 55 prohibits the introduction into evidence of other crimes or civil wrongs to prove a defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Stevens, 115 N.J. 289 , 293, 558 A.2d 833 (1989); Evid.R. 55. However, "[t]he Rule expressly permits such evidence to be admitted to prove other facts in issue, such as `motive, intent, plan, knowledge, identity, or absence of mistake or accident'. . . ." Ibid.; Evid.R. 55. The issue must be genuine and the other-crime evidence must be necessary for its proof. Id. at 301, 558 A.2d 833.

Although other-crime evidence may thus be admissible under Evidence Rule 55 to prove motive or intent, the admission of defendant's prior murder conviction in this case seems part of a disturbing trend on the part of trial courts in capital murder cases to allow the jury to consider any evidence that can be construed as relevant to motive or intent — no matter how attenuated or oblique the connection between the proffered evidence and defendant's motive or intent. It is a trend that this Court had done little to reverse. In State v. Dixon, 125 N.J. 223, 593 A.2d 266 (1991), the defendant had fatally struck a young girl once in the head with a sharp object during an attempted robbery and/or sexual assault. In his confession to police detectives, the defendant compared the killing to the film "10 to Midnight," stating: "it was like the movie, you know, the girl kept screaming and the guy hit her . . . he stabbed her." At trial, the court allowed the jury to watch segments of the film that featured a naked psychopath, blood dripping from his body, brutally stabbing to death naked young women. The trial court accepted the State's argument that the scenes were relevant to the defendant's intent, because of the defendant's oblique reference to the film during his confession. On appeal, this Court brushed aside the defendant's argument that the film segments had prejudiced the guilt phase of his trial, suggesting (without stating outright) that their admission was at worst harmless error: "We might be inclined to reverse the guilt phase convictions if this were a case of less than overwhelming evidence of guilt." Id. at 251, 593 A.2d at 279; see also id. at 272-284, 593 A.2d at 290-296 (Handler, J., dissenting in part and concurring in part)

Here, only defendant's statement that he had killed before and might have to kill again was arguably relevant to his intent. Yet the State offered and the trial court allowed into evidence defendant's records of his prior conviction for murder as well as his conviction for carnal abuse — crimes committed ten years before — as proof of defendant's motive or intent toward an entirely unrelated victim. Despite any superficial similarities to the present homicide, the fact that defendant's prior convictions were remote in time, see Ramseur, supra, 106 N.J. at 226, 524 A.2d 188 ("[t]he temporal remoteness of a wrong affects its probative value") and committed against an unrelated victim rendered those convictions irrelevant to defendant's intent on the night, ten years later, that he stabbed Lucy Erazo. There was simply no reason to admit into evidence the records of defendant's prior convictions. See State v. Schumann, 111 N.J. 470 , 545 A.2d 168 (1988) (in prosecution for sexual assault of a young boy, to explain the absence of a "fresh complaint," testimony was admitted that defendant had told victim not to tell anyone about their sexual act because defendant had previously been sent to jail for engaging in similar activity with another boy who confided in his parents; because the complaint was in fact "fresh," the testimony was improperly admitted under both Evidence Rule 55 and Evidence Rule 4). Cf. State v. Carroll, 242 N.J. Super. 549 , 564, 577 A.2d 862 (App.Div. 1990) (in prosecution for murder of stepdaughter, the child of his second wife, defendant's statement that he had felt a "rage" against his first wife that had led him to "hurt" her was admissible because defendant stated that the rage was "identical" to the rage he felt for his second wife and caused him to "seek revenge").

Furthermore, "[e]vidence of past crimes does not automatically become admissible just because it is relevant to the issue of motive or intent. In each case the trial court must weigh the probative value of the evidence against its prejudicial effect." State v. Ramseur, supra, 106 N.J. at 265, 524 A.2d 188. If the probative value of the evidence is outweighed by threat of prejudice, the evidence should be excluded. Id. at 266, 524 A.2d 188; Evid.R. 4. This Court had recognized that in capital cases, the court must weigh other-crimes evidence carefully. Ramseur, 106 N.J. at 265-66, 524 A.2d 188. The Court has further recognized that evidence relevant in the guilt phase "might be so overwhelmed by prejudice in the sentencing phase by extraneous factors irrelevant to capital sentencing that the admission of such evidence would almost inevitably require reversal of a death sentence." State v. Dixon, supra, 125 N.J. at 249, 593 A.2d at 279. I have repeatedly stated that "it is imperative that the potential for prejudice of such evidence in the penalty-phase trial be considered by the trial court in determining its admissibility in the guilt-phase trial." State v. Harvey, 121 N.J. 407 , 449, 581 A.2d 483 (1990) (Handler, J., concurring in part and dissenting in part) (citing State v. Pennington, 119 N.J. 547 , 561-63, 575 A.2d 816 (1990); see also State v. Clausell, 121 N.J. 298 , 371-72, 580 A.2d 221 (Handler, J., concurring in part and dissenting in part); State v. Long, 119 N.J. 439 , 513, 575 A.2d 435 (1990) (Handler, J., concurring in part and dissenting in part). This is particularly true when, as here, the evidence does double-duty as an aggravating factor. See Pennington, supra, 119 N.J. at 608, 575 A.2d 816. The Court has recently stated that when the State intends to submit aggravating factor N.J.S.A. 2C:11-3c(a) (that defendant has been convicted of another murder), the guilt and sentencing phases of the trial should be heard by two different juries. Biegenwald IV, supra, 126 N.J. at 43-44, 594 A.2d 172. The Court explained that

[b]ecause of the prejudice that could be engendered by voir dire prior to the guilt phase about a defendant's other murder convictions that are not otherwise admissible as evidence during that portion of the case . . ., questioning [on whether the prior murder conviction would make the prospective juror favor the death penalty for defendant, see discussion supra at 119-121 should almost invariably come only after a jury has found a defendant death eligible. [ Id. at 44, 594 A.2d 172.]

This holding evinces the Court's recognition that evidence of a prior murder conviction is extraordinarily and overwhelmingly harmful to a capital defendant. It strongly suggests that such evidence should rarely, if ever, be admissible in the guilt phase of a capital cause.

As harmful as the evidence of defendant's prior murder conviction was during the guilt phase of his trial, its prejudicial impact escalated incalculably in the sentencing phase. The State, having introduced evidence of the prior murder during the guilt phase, proceeded to introduce the highly prejudicial details surrounding that murder at defendant's sentencing phase. The majority itself impliedly concedes this point. Ante at 137-139, 594 A.2d 232 (recommending that if State seeks death penalty on remand, court impanel separate juries to hear guilt and penalty phases; "A separate penalty-phase jury commends itself when guilt-phase evidence is so prejudicial that the same jury could not fairly sit on both phases of the trial" (citation omitted)).

The additional evidence relating to the prior murder was admitted under N.J.S.A. 2C:11-3c(2)(f), which provides:

Evidence offered by the State with regard to the establishment of a prior homicide conviction pursuant to paragraph (4)(a) of this subsection may include the identity and age of the victim, the manner of death and the relationship, if any, of the victim to the defendant.

The New Jersey Legislature added c(2)(f) to the capital murder statute by amendment effective June 2, 1985. L. 1985, c. 178, sec. 2. In its original form, c(2)(f) provided: "Evidence offered by the State to establish the prior homicide pursuant to paragraph (4)(a) . . . may include the circumstances surrounding the prior homicide." The provision was changed to its present form by Senate Committee amendment adopted March 1, 1984. The Senate Judiciary Committee Statement accompanying the amendment explains:

In order to avoid turning the sentencing proceeding into a second trial of the previous case and at the same time to provide the jury with some information about the prior conviction, the amendments would limit the circumstances of the prior homicide that could be introduced into evidence during the sentencing proceeding to: the identity and age of the victim; the manner of death and the relationship of the victim to the defendant, if any.

A prior murder under c(4)(a), as the Court in Ramseur noted, "`narrow[s] the class of persons eligible for the death penalty.'" Ramseur, supra, 106 N.J. at 276, 524 A.2d 188 (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249 (1983); see also State v. Pennington, supra, 119 N.J. at 586, 575 A.2d 816 ("evidence of a prior murder conviction is admissible as an aggravating factor in the penalty phase").

In our death penalty statute, c(2)(f) is intended to provide only limited evidence of a defendant's prior murder, to enable the jury to weigh c(4)(a) as an aggravating factor. See Ramseur, supra, 106 N.J. at 277, 524 A.2d 188. However, while knowledge of the details of the prior murder through c(2)(f) might help a jury determine whether a defendant is a serial killer or poses danger of killing again, it also carries the inherent danger that the jury will vote for death by dint of the brutality of the first murder. As defendant argues, "the more heinous the prior murder the greater the likelihood of a death sentence on the second murder."

Thus, here, pursuant to c(2)(f), the State introduced into evidence the judgment of conviction for the prior murder (including the prior sentence imposed); that the victim was Gladys Colon, the fifteen year-old daughter of defendant's former girlfriend; and that she had died of numerous stab wounds to the chest and back. Over defendant's objection, the State also introduced three pages of an autopsy report for Colon, including a human diagram outlining the stab wounds and a detailed description of anatomical diagnoses. In his penalty-phase summation, the prosecutor stated:

I submit that the brutal murder of Gladys Colon and the brutal circumstances of the murder of Lucy Erazo outweigh anything with regard to defendant's state of mind, voluntary intoxication, age or anything that defen[dant] has offered on his behalf.

The court did not issue a limiting instruction on the use of details of the prior murder. Similarly, in Stringer v. State, 500 So.2d 928 (Miss. 1986), in which a prosecutor urged the jury to sentence a defendant to death after he had been earlier sentenced to life imprisonment for killing someone else during the same incident, the prosecutor told the jury that he could not understand why the first jury had not returned a death sentence, and that this trial was the prosecutor's, State's, and the victims' relatives' "last chance for retribution." Id. at 939. The Mississippi Supreme Court found that the remarks alone did not constitute error, but that in combination with numerous other instances of prosecutorial misconduct, those remarks had denied defendant a fair trial. Ibid. Here, as noted, the prosecutor asked the jury during his penalty-phase summation to sentence defendant to death for the two brutal murders. Cf. State v. Pennington, supra, 119 N.J. at 614, 575 A.2d 816 (prosecutor's description in his penalty-phase opening argument of defendant's prior murder in which, according to prosecutor, defendant "took a shotgun . . ., shot a young thirty-year old man in the back of the leg with that shotgun and then blew away half his face," was reversible error.).

On balance, the application of c(2)(f) to allow excessive details surrounding the circumstances of the prior murder was seriously prejudicial and generated the unwholesome likelihood that the jury imposed the death penalty because it was impassioned by the brutality of the prior killing.

III

The Court concedes that the evidence was insufficient to support the aggravating factor of c(4)(c). Ante at 137-139, 594 A.2d 232. I agree with that assessment. I write separately to reiterate my view that c(4)(c) continues to be so malleable as to make almost limitless the class of death-eligible defendants. See Ramseur, supra, 106 N.J. at 405, 524 A.2d 188 (Handler, J., dissenting). Because of its vagueness and overbreadth, c(4)(c) lends itself easily to overuse by prosecutors, thus raising the spectre of unbounded prosecutorial discretion to seek the death penalty.

In regard to the c(4)(c) factor, "the essence of the legislative concern is the defendant's state of mind. . . . Society's concern, the community's concern, the Legislature's concern, is to punish most harshly those who intend to inflict pain, harm, and suffering — in addition to intending death." State v. Ramseur, supra, 106 N.J. at 207-08, 524 A.2d 188. Encompassed within c(4)(c) is

the class of murders in which defendant intended to, and did in fact, cause extreme physical or mental suffering — in addition to death. The state of mind that we require corresponds to our Code's "purposeful" definition. Thus, the extreme physical or mental suffering must be precisely what defendant wanted to occur in addition to death. [ Id. at 208-09, 524 A.2d 188 (footnotes omitted).]

Evidence of torture or aggravated assault is often circumstantial and may be inferred from the circumstances of the case. Id. at 211 n. 38, 524 A.2d 188 n. 38; State v. Matulewicz, 115 N.J. 191 , 194, 557 A.2d 1001 (1989). Applying those standards on several occasions, the Court has found c(4)(c) to be inapplicable. Matulewicz, supra, 115 N.J. at 200, 557 A.2d 1001 (defendant struck baby on head, threw her into crib, then shook her to death); State v. Rose, 112 N.J. 454, 527-33, 548 A.2d 1058 (defendant shot victim once in abdomen with shotgun); State v. Biegenwald, 106 N.J. 13 , 51, 524 A.2d 130 (1987) (defendant shot victim four times in head at close range). In those cases, the Court determined that the evidence was insufficient to prove that defendant had intended the victim to endure pain and suffering while committing the murder.

In State v. Hunt, 115 N.J. 330 , 385-89, 558 A.2d 1259 (1989), without deciding the issue, the Court discussed the quantum of evidence necessary to support c(4)(c) in a multiple stab wound case. There, the defendant rushed to the victim's apartment, woke him up, and stabbed him twenty-four times. In its analysis, the Court stated that

[i]n another case, the nature and number of wounds might bespeak an intent to inflict pain in addition to causing death. For example, multiple stab wounds, when combined with other evidence of defendant's intent, could support the contention that defendant knew or intended that the victim would suffer or that the defendant wanted the victim to know that he or she was about to be murdered. [ Id. at 389, 558 A.2d 1259.]

The Court noted that the only evidence in support of c(4)(c) was that the victim "was stabbed twenty-four times, was shocked by the attack, and bled for twenty minutes before dying." Id. at 388, 558 A.2d 1259.

In my dissent in Hunt, I took issue with the Court's failure to reject the sufficiency of the evidence as support for c(4)(c). Noting that the State had relied on "24 aggravated batteries" as its c(4)(c) evidence, I stressed that multiple stabbing evidence

alone, without additional evidence demonstrating a torturous or sadistic intentional state of mind, cannot suffice as a matter of law to establish the aggravating factor of c(4)(c).

* * * * * * * *

If the c(4)(c) factor could be sustained in this case, where the only evidence is several non-fatal wounds and death was not instantaneous, there would be "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." [ Id. at 414, 558 A. 2d 1259 (Handler, J., dissenting) (citation omitted).]

The murder in this case can fully be characterized as an impulsive stabbing in response to Lucy Erazo's threat to call the police. Lucy Erazo was drunk, and defendant too had much to drink. In contrast to Hunt, the fatal wound brought death immediately; there were few total wounds; other "non-fatal" wounds were superficial slash wounds; the entire event lasted approximately five minutes at most, and perhaps "happened in a matter of seconds."

This is not a close question. I thus find more troublesome the prosecutor's decision to rely on aggravating factor c(4)(c). One cannot reasonably draw from the evidence any "inference" that there was an intent to cause suffering separate and apart from the intent to kill. See Matulewicz, supra, 115 N.J. at 199-200, 557 A.2d 1001.

This case again points up the procedural spectre of unguided prosecutorial discretion. See State v. Perry, 124 N.J. 128 , 133, 140-142, 590 A.2d 624 (Stein, J., concurring in part and dissenting in part) (questioning whether guidelines adopted by New Jersey County Prosecutors Association will prove "sufficiently specific to overcome the problem of arbitrariness in the designation of cases for capital prosecution"); State v. Marshall, 123 N.J. 1 , 250-52, 586 A.2d 85 (1991) (Handler, J., dissenting); State v. Di Frisco, 118 N.J. 253 , 303, 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part); State v. Matulewicz, supra, 115 N.J. at 207, 557 A.2d 1001 (Handler, J., concurring); State v. Koedatich, 112 N.J. 225, 250-58, 548 A.2d 939 (1988); id., 115 N.J. at 372-79, 558 A.2d 1259 (Handler, J., dissenting); State v. Ramseur, supra, 106 N.J. at 129, 524 A.2d 188; id., 115 N.J. at 404-08, 558 A.2d 1259 (Handler, J., dissenting). In a related vein, this case underscores the prosecutorial vice of overcharging. Although the prosecutor asserted the c(4)(a) prior-murder factor as well as c(4)(c), this case might well not have been prosecuted as a capital cause had the c(4)(c) factor not been invalidly introduced. See State v. Dixon, supra, 125 N.J. at 260, 593 A.2d 266 (Handler, J., dissenting in part and concurring in part) (three invalidly-submitted aggravating factors converted likely non-capital case into capital case). Moreover, adding a second aggravating factor dramatically increased the State's ability to secure a death sentence. Capital juries in New Jersey are almost four times more likely to sentence a defendant to death when two aggravating factors are found than they are when only one is found. See Baldus, Appendices and Tables to Second Interim Proportionality Report at Appendix F (March 20, 1991) (Baldus Report). Those same juries are more than twice as likely to impose a death sentence when the c(4)(c) factor is found as a second aggravating factor than they are when c(4)(c) is found to exist as the sole aggravating factor. Id. at Appendix E, Table 4C. In the two cases in the Baldus Report in which c(4)(a) was found as the sole aggravating factor, neither case resulted in a death sentence; however, in the nine cases in which c(4)(a) and a second aggravating factor were found, death sentences were returned in every case. Id. at Appendix E, Table 4A. More significantly, in the five cases (including this one) in which juries found both the c(4)(a) and c(4)(c) factors as the only two aggravating factors, all resulted in death sentences. See id. at Appendix F, F-8 to F-15. Those figures help demonstrate the tremendous momentum generated by the c(4)(c) factor toward juries returning sentences of death.

We cannot continue to permit prosecutors to roust up evidence in search of extra aggravating factors to bolster their cases. I continue to believe that c(4)(c) is hopelessly overbroad and vague, even with this Court's limiting interpretation of it in Ramseur. Ramseur, supra, 106 N.J. at 405, 524 A.2d 188 (Handler, J., dissenting) (slight evidentiary burden on State to establish aggravating factor to render case capital is particularly troublesome when that factor is vague and overbroad c(4)(c)). The c(4)(c) standard is inherently manipulable, and there is no reason to disbelieve that a jury confronted with a gory or shocking murder will not "infer" bases for that factor. For instance, "in cases where there are multiple wounds, the jury can find suffering or, if pain cannot be proved, mutiliation." Id. at 401, 524 A.2d 188 (Handler, J., dissenting); Rosen, The Especially Heinous Aggravating Circumstance in Capital Cases — The Standardless Standard, 64 N.C. L.Rev. 941 (1986). Just as I believe that c(4)(c) can lure a juror into finding almost any murder capital, see Ramseur, supra, 106 N.J. at 402, 524 A.2d 188 (Handler, J., dissenting), I continue to feel that strict standards are necessary to restrict prosecutors' overuse of that factor. Such overuse manifested itself egregiously in this case. Cf. Perry, supra, 124 N.J. at 142, 590 A.2d 624 (Stein, J., concurring in part and dissenting in part) (prosecution used c(4)(c) factor to render case capital: "The impression is unavoidable that there was scant basis in the accumulated evidence to distinguish this homicide as one warranting a capital prosecution.").

In sum, the reliance by the State on c(4)(c) in the face of insufficient evidence not only warrants a reversal of defendant's death sentence, it exemplifies an intolerable exercise of the death-penalty prosecutorial authority.

IV

Another issue requires comment. Certain evidence elicited during the trial consisted of victim-impact evidence. The State argues that there was testimony by various witnesses that described Lucy Erazo as a "religious," "wonderful" woman, and the mother of ten children. The prosecutor speculated aloud to the jury that as Lucy Erazo lay dying, "her thoughts were for her family." Allegedly the Rodriguez children, including Migdalia Rodriguez, testified that she had reported defendant's parole violation to the parole board because defendant "was doing a lot of things to [her] sisters." The prosecutor argued that the jury need not show defendant mercy because defendant had shown no mercy to his wife when he killed her.

In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the United States Supreme Court invalidated on eighth amendment grounds a Maryland statute that required the introduction of victim-impact statements at the sentencing phase of a capital trial. In Booth the prosecution presented extensive information on "the personal characteristics of the victims and the emotional impact of the crimes on the family, as well as the family members' opinions and characterizations of the crimes and the defendant." Id. at 502, 107 S.Ct. at 2533, 94 L.Ed.2d at 448. The Court concluded that such "information is irrelevant to a capital sentencing decision, and that its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner." Id. at 502-03, 107 S.Ct. at 2533, 94 L.Ed.2d at 448.

In South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), the Supreme Court affirmed the Supreme Court of South Carolina's reversal of the defendant's death sentence, finding that certain comments made by the prosecutor had improperly referred to the victim's personal characteristics. There, defendant had assaulted, robbed, and killed a self-proclaimed preacher in a park, scattering various of the victim's religious articles on the ground in the process. During his penalty-phase summation, the prosecutor "read to the jury at length from the religious tract the victim was carrying, and commented on the personal qualities he inferred from [the victim's] possession of the [tract] and [his] voter registration card." Id. at 811, 109 S.Ct. at 2211, 104 L.Ed.2d at 883 . The Court found that such information had no relevance to the circumstances of the crime, since it was unlikely that the defendant had read the tract or voter card.

We have taken a similar approach with respect to such evidence, and apply a strict standard governing its admissibility and use. In Williams II, supra, 113 N.J. at 446-54, 550 A.2d 1172, the prosecutor pursued a pattern of commentary on the virtue of the victim, calling her "[b]right, beautiful, religious, a member of her church choir," and discussing what had been her future marriage plans. Id. at 448, 550 A.2d 1172. The Court stated:

Any capital trial will necessarily involve testimony and physical evidence pertaining to the victim. This evidence, though admissible, cannot be used in a manner calculated to so confuse or impassion the jury that it inappropriately intertwines irrelevant emotional considerations with relevant evidence. There are occasions when evidence relating to the victim's character and personality may be probative of critical aspects of the trial, e.g., defendant's assertion of self-defense or provocation. [ Id. at 451, 550 A.2d 1172.]

The Court acknowledged in Williams II the trend toward victim-impact legislation, i.e., legislation that would permit victims' interests to be addressed in criminal matters. Nevertheless, even though such legislation exists in New Jersey, "our law does not regard a crime committed against a particularly virtuous person as more heinous than one committed against a victim whose moral qualities are perhaps less noteworthy or apparent. The law exists to protect all persons equally." Id. at 450, 550 A.2d 1172. Moreover,

[i]t is constitutionally required that juries in capital trials reach a verdict and impose a penalty without inordinate exposure to unduly prejudicial, inflammatory commentary. Failure to purge successfully such comments from admittedly emotion-charged proceedings creates the unacceptable risk that what will result is the arbitrary and capricious imposition of the death penalty. [ Id. at 453-54, 550 A.2d 1172 (citing Booth v. Maryland, supra, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440.]

Such comments or evidence serve to impassion the jury without adding evidence relevant to the defendant or the crime charged. Hightower, supra, 120 N.J. at 411, 577 A.2d 99; Williams II, supra, 113 N.J. at 474, 550 A.2d 1172 (Handler, J., concurring).

In Williams II, we recognized the holding of Booth and Gathers. Our victim-impact cases subsequent to Williams II have relied heavily on Williams II — rather than federal precedent — as the principal exposition of victim-impact-evidence law in capital trials in New Jersey. See, e.g., State v. Harvey, 121 N.J. 407 , 425, 581 A.2d 483 (1990); State v. Clausell, 121 N.J. 298 , 341, 580 A.2d 221 (1990); State v. Hightower, 120 N.J. 378 , 410-12, 577 A.2d 99 (1990); State v. Pennington, supra, 119 N.J. at 566-71, 575 A.2d 816; State v. Coyle, 119 N.J. 194 , 231-32, 574 A.2d 951 (1990).

In the wake of the reversal of both Booth and Gathers by Payne v. Tennessee, ___ U.S. ___, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), we should make clear that our standard is fixed firmly on state constitutional principles of due process and reasonable punishments and independent precepts of fundamental fairness. This is particularly important in view of the retrenchment by the United States Supreme Court with respect to the protections afforded defendants in capital cases. See discussion supra at 119-120, 594 A.2d 232.

In Payne v. Tennessee, supra, the defendant brutally stabbed a mother and her two young children. The mother and daughter were killed, but the son survived. The defendant was convicted of two counts of murder and one count of assault with intent to commit murder. During the penalty trial, the prosecutor elicited testimony from the children's grandmother on the effect of the murders on the surviving young boy. In summation, the prosecutor talked extensively about the effect of the murders on the boy, what his sister would miss in life, and the qualities of the mother.

For instance, the prosecutor told the jury:

No one will ever know about [the young girl] because she never had the chance to grow up. Her life was taken from her at the age of two years old. So there won't be a high school principal to talk about [her], and there won't be anyone to take her to her high school prom. . . . [The young boy's] mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing a lullaby. . . . [The boy] doesn't have anyone to watch cartoons with him. . . . [ Id. at ___, 111 S.Ct. at 2603].

He then told the jury that although it could not do anything for the mother and the young girl, with its verdict if could do something for the boy. Id. at ___, 111 S.Ct. at 2601.

Overruling Booth and Gathers, the Court found the grandmother's testimony and the prosecutor's comments acceptable. It concluded that victim-impact evidence demonstrates a defendant's moral culpability and blameworthiness: "Victim-impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question." Id. at ___, 111 S.Ct. at 2608. "It is designed to show . . . each victim's `uniqueness as an individual human being,' whatever the jury might think the loss to the community resulting from his death might be." Ibid. The Court thus held that the eighth amendment does not prohibit the introduction of victim-impact evidence at a capital-sentencing hearing if a state permits the introduction of such evidence. Ibid.

In my view, under our notions of fundamental fairness and due process, victim-impact evidence cannot be allowed in capital cases. That the protections afforded by our Constitution exceed those of the federal Constitution in this area is pointed up by the fact that we have prohibited the introduction of victim-impact evidence not only during the penalty phase of a capital trial but during the guilt phase as well. Williams II, supra, 113 N.J. at 451-52, 550 A.2d 1172 ("Where . . . the victim's character has no bearing on the substantive issue of guilt or the penalty to be imposed, the prosecution may not comment on the evidence in a manner that serves only to highlight the victim's virtues in order to inflame the jury."). By contrast, Booth and Gathers addressed themselves to sentencing trials only. At any rate, as I stated in Williams II, "federal decisions are unreliable authority in determining our own constitutional death-penalty jurisprudence." Williams II, supra, 113 N.J. at 465, 550 A.2d 1172 (Handler, J., concurring). I pointed out that our decisions in State v. Gerald, supra, 113 N.J. 40 , 549 A.2d 792, and State v. Moore, 113 N.J. 239 , 550 A.2d 117 (1988), adhered to the rationale of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and refused to follow Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), which "significantly curtailed" Enmund. Ibid. As noted, our victim-impact jurisprudence has relied primarily on Williams II, which has broader scope than Booth and Gathers. Having embraced the spirit of Booth and Gathers, we should repudiate Payne.

Only one of defendant's victim-impact arguments in this case deserves attention. During his summation, ostensibly to rebut the c(5)(h) mitigating factor, the prosecutor argued:

The other portion of that factor has to do with the fact that the defendant says the death penalty will be a hardship on him and on his family. Consider that, but put it in perspective. I feel sorry for the defendant's family, but I also feel sorry for the victim's family.

The family asked you for mercy. Consider it, but put it in perspective, ladies and gentlemen. What mercy did the defendant show Lucy Erazo? What justice did she receive? (Emphasis added.)

That kind of comment may well tend to mislead a jury, because it renders the establishment of the c(5)(h) mitigating factor a contest between a defendant and his victim. Marshall, supra, 123 N.J. at 238-39, 586 A.2d 85 (Handler, J., dissenting); see also id. at 163-64, 586 A.2d 85 (majority opinion) (inappropriate but not reversible error for prosecutor to state in rebuttal of mitigating factors that victim "had no prior criminal history, . . . was civic-minded, and [was not given] the option of thirty years"). It improperly asked the jury to weigh the comparative grief of the two families and to disregard evidence in mitigation because the victim had no recourse in mercy.

In State v. Monroe, 397 So.2d 1258 (La. 1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1411, reh'g denied, 463 U.S. 1249, 104 S.Ct. 36, 77 L.Ed.2d 1455 (1983), defense counsel attacked the deterrence function of the death penalty in his penalty phase summation. The prosecution rebutted that argument by explaining that the murder at issue merited the death penalty, through which he asked the jury "to give us justice." Id. at 1270. The Supreme Court of Louisiana, although not finding reversible error in the circumstances, aptly observed:

Some of the closing argument might be interpreted as a plea for the jury to disregard the constitution and the law, and simply do to the defendant what they had found the defendant had done to the victim, and take his life. The prosecutor tried to say that in asking for the death penalty, he asked for "nothing out of the ordinary," and that the jury should simply give the defendant the same that the defendant gave the victim.

* * * * * * * *

A system of capital punishment which permits the exaction of an eye for an eye, a tooth for a tooth, and a life for a life will not pass constitutional muster. Such argument is improper. To seem to urge what the defendant had done to the victim . . . is improper. [ Id. at 1270-71.]

The State urges that the prosecutor's comment here was not error because it was not "a plea to the jury to do to defendant what he had done to Lucy Erazo, but rather, a proper reminder of the nature of defendant's actions in rebuttal to defendant's evidence and arguments at the penalty phase." Nevertheless, the prosecutor could have rebutted defendant's pleas for mercy without asking the jury to consider the lack of mercy shown Lucy Erazo. The statement improperly blurs the proper focus of mitigating factors, and is thus inappropriate.

In sum, even if these aspects of the trial do not warrant reversal, the Court should make it crystal clear that under our state constitutional notions of due process and reasonable punishments and independent standards of fundamental fairness in capital-murder prosecutions, such victim-impact statements must be prohibited.

V

I concur in part and dissent in part from the judgment of the Court.

Justice GARIBALDI concur in result.

Justice HANDLER concurs and dissents. For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK, O'HERN, GARIBALDI and STEIN — 6.

For reversal — Justice Handler — 1.